05.javellana v. Executive Secretary20211014-11-1d6edxm

EN BANC
[G.R. No. L-36142. March 31, 1973.]
JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE

SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE
SECRETARY OF JUSTICE and THE SECRETARY OF FINANCE ,
respondents.
[G.R. No. L-36164. March 31, 1973.]
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES,

MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE
PERALTA and LORENZO M. TAÑADA , petitioners, vs. THE
EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM,
THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF
PRESIDENTIAL COMMISSION ON RE-ORGANIZATION, THE
TREASURER OF THE PHILIPPINES, THE COMMISSION ON
ELECTIONS and THE COMMISSIONER OF CIVIL SERVICE,
respondents.
[G.R. No. L-36165. March 31, 1973.]
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,

SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA
ESTRADA-KALAW, petitioners, vs. ALEJANDRO MELCHOR, in
his capacity as Executive Secretary; JUAN PONCE ENRILE, in
his capacity as Secretary of National Defense; General
ROMEO ESPINO, in his capacity as Chief of Staff of the
Armed Forces of the Philippines; CONSTANCIO E.
CASTAÑEDA, in his capacity as Secretary of General
Services; Senator GIL J. PUYAT, in his capacity as President
of the Senate; and Senator JOSE ROY, in his capacity as
President Pro Tempore of the Senate, respondents.
[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
BUDGET COMMISSIONER & THE NATIONAL TREASURER ,
respondents.
CD Technologies Asia, Inc. © 2021 cdasiaonline.com

[G.R. No. L-36283. March 31, 1973.]
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR.,

LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ,
petitioners, vs. THE HONORABLE SECRETARY OF NATIONAL
DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE
HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada & 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.
Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and
Solicitor Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, J : p
The above entitled five (5) cases are a sequel of cases G.R. Nos. L-
35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-
35965 and L-35979, decided on January 22, 1973, to which We will hereafter
refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered,
from which We quote:
"On March 16, 1967, Congress of the Philippines passed

Resolution No. 2, which was amended by Resolution No. 4 of said body,
adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said Resolution No.
2, as amended, was implemented by Republic Act No. 6132, approved
on August 24, 1970, pursuant to the provisions of which the election of
delegates to said Convention was held on November 10, 1970, and the
1971 Constitutional Convention began to perform its functions on June
1, 1971. While the Convention was in session on September 21, 1972,
the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention
approved its Proposed Constitution of the Republic of the Philippines.
The next day, November 30, 1972, the President of the Philippines
issued Presidential Decree No. 73, 'submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor,' as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15,
1973.
"Soon after, or on December 7, 1972, Charito Planas filed, with

this Court, Case G.R. No. L-35925, against the Commission on
Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said 'respondents or their agents from implementing
Presidential Decree No. 73, in any manner, until further orders of the
Court,' upon the grounds, inter alia, that said Presidential Decree 'has
no force and effect as law because the calling . . . of such plebiscite,
the setting of guidelines for the conduct of the same, the prescription
of the ballots to be used and the question to be answered by the
voters, and the appropriation of public funds for the purpose, are, by
the Constitution, lodged exclusively in Congress . . .,' and 'there is no
proper submission to the people of said Proposed Constitution set for
January 15, 1973, there being no freedom of speech, press and
assembly, and there being no sufficient time to inform the people of
the contents thereof.'
"Substantially identical actions were filed, on December 8, 1972,

by Pablo C. Sanidad against the Commission on Elections (Case G.R.
No. L-35929); on December 11, 1972, by Gerardo Roxas, et al., against
the Commission on Elections, the Director of Printing, the National
Treasurer and the Auditor General (Case G.R. No. L-35940), by Eddie B.
Monteclaro against the Commission on Elections and the Treasurer of
the Philippines (Case G.R. No L-35941), and by Sedfrey A. Ordoñez, et
al. against the National Treasurer and the Commission on Elections
(Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al.,
against the Commission on Elections, the Treasurer of the Philippines,
the Auditor General and the Director of Printing (Case G.R. No. L-
35948), and by Jose W. Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953); on December 14,
1972, by Jacinto Jimenez against the Commission on Elections, the
Auditor General, the Treasurer of the Philippines and the Director of the
Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales
against the Commission on Elections, the Budget Commissioner, the
National Treasurer and the Auditor General (Case G.R. No. L-35965),
and on December 16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education, the National
Treasurer and the Auditor General (Case G.R. No. L-35979).
"In all these cases, except the last (G.R. No. L-35979), the
respondents were required to file their answers 'not later than 12:00
(o'clock) noon of Saturday, December 16, 1972.' Said cases were, also,
set for hearing and partly heard on Monday, December 18, 1972, at
9:30 a.m. The hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned last case — G.R. No. L-
35979 — was, also, heard, jointly with the others, on December 19,
1972. At the conclusion of the hearing, on that date, the parties in all of
the aforementioned cases were given a short period of time within
which 'to submit their notes on the points they desire to stress.' Said
notes were filed on different dates, between December 21, 1972, and
January 4, 1973.
"Meanwhile, or on December 17, 1972, the President had issued

an order temporarily suspending the effects of Proclamation No. 1081,
for the purpose of free and open debate on the Proposed Constitution.
On December 23, the President announced the postponement of the
plebiscite for ratification or rejection of the Proposed Constitution. No
formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing 'that the plebiscite
scheduled to be held on January 15, 1973 be postponed until further
notice.' Said General Order No. 20, moreover, 'suspended in the
meantime' the 'order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open
debate on the proposed Constitution.'
"In view of these events relative to the postponement of the

aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then, again, Congress was, pursuant to
the 1935 Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections — the Court deemed it more imperative to
defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case

G.R. No. L-35948 filed an 'urgent motion,' praying that said case be
decided 'as soon as possible, preferably not later than January 15,
1973.' It was alleged in said motion, inter alia.
'6. That the President subsequently announced the issuance

of Presidential Decree No. 86 organizing the so-called Citizens
Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];
'7. That thereafter it was later announced that "the

Assemblies will be asked if they favor or oppose —
"[1] The New Society;

"[2] Reforms instituted under Martial Law;
"[3] The holding of a plebiscite on proposed new
Constitution and when (the tentative new dates given following
postponement of the plebiscite from the original date of January
15 are February 19 and March 5);
"[4] The opening of the regular session slated on
January 22 in accordance with the existing Constitution despite
Martial Law." [Bulletin Today, January 3, 1973.]
'8. That it was later reported that the following are to be the
forms of the questions to be asked to the Citizens Assemblies: —
"[1] Do you approve of the New Society?

"[2] Do you approve of the reform measures under
martial law?
"[3] Do you think that Congress should meet again in
regular session?
"[4] How soon would you like the plebiscite on the new
Constitution to be held?" [Bulletin Today, January 5, 1973].
'9. That the voting by the so-called Citizens Assemblies was

announced to take place during the period from January 10 to January
15, 1973;
'10. That on January 10, 1973, it was reported that one more
question would be added to the four (4) questions previously
announced, and that the forms of the questions 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 is running the
affairs of the government?" [Bulletin Today, January 10, 1973;
additional question italicized.]
'11. That on January 11, 1973, it was reported that six (6)
more questions would be submitted to the so-called Citizens
Assemblies: —
"[1] Do you approve of the citizens assemblies as the

base of popular government to decide issues of national
interests?
"[2] Do you approve of the new Constitution?
"[3] Do you want a plebiscite to be called to ratify the
new Constitution?
"[4] Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935 Constitution?
"[5] If the elections would not be held, when do you
want the next elections to be called?
"[6] Do you want martial law to continue?" [Bulletin
Today, January 11, 1973; italics supplied.]
'12. That according to reports, the returns with respect to the

six (6) additional questions quoted above will be on a form similar or
identical to Annex "A" hereof;
'13. That attached to page 1 of Annex "A" is another page, which

we marked as Annex "A-1", and which reads: —
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in
government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked.
Or if it is to be convened at all, it should not be done so until
after at least seven (7) years from the approval of the New
Constitution by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be
considered the plebiscite on the Constitution.
If the Citizens Assemblies approve of the New Constitution,
then the new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed
up with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We
want him to exercise his powers with more authority. We
want him to be strong and firm so that he can accomplish all
his reform programs and establish normalcy in the country.
If all other measures fail, we want President Marcos to
declare a revolutionary government along the lines of the
new Constitution without the ad interim Assembly."
'Attention is respectfully invited to the comments on "Question

No. 3," which reads: —
"QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.
then the new Constitution should be deemed ratified."
This, we are afraid, and therefore allege, is pregnant with

ominous possibilities.
'14. That, in the meantime, speaking on television and over

the radio, on January 7, 1973, the President announced that the limited
freedom of debate on the proposed Constitution was being withdrawn
and that the proclamation of martial law and the orders and decrees
issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
'15. That petitioners have reason to fear, and therefore state,

that the question added in the last list of questions to be asked to the
Citizens Assemblies, namely: —
"Do you approve of the New Constitution?" — in relation to the

question following it: —
"Do you still want a plebiscite to be called to ratify the new

Constitution?" —
would be an attempt to by-pass and short-circuit this Honorable

Court before which the question of the validity of the plebiscite on the
proposed Constitution is now pending;
'16. That petitioners have reason to fear, and therefore

allege, that if an affirmative answer to the two questions just referred
to will be reported then this Honorable Court and the entire nation will
be confronted with a fait accompli which has been attained in a highly
unconstitutional and undemocratic manner;
'17. That the fait accompli would consist in the supposed

expression of the people approving the proposed Constitution;
'18. That, if such event would happen, then the case before
this Honorable Court could, to all intents and purposes, become moot
because, petitioners fear, and they therefore allege, that on the basis
of such supposed expression of the will of the people through the
Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has
been ratified;
'19. That, in such a situation, the Philippines will be facing a

real crisis and there is likelihood of confusion if not chaos, because
then, the people and their officials will not know which Constitution is in
force.
'20. That the crisis mentioned above can only be avoided if

this Honorable Court will immediately decide and announce its decision
on the present petition;
'21. That with the withdrawal by the President of the limited

freedom of discussion on the proposed Constitution which was given to
the people pursuant to See. 3 of Presidential Decree No. 73, the
opposition of respondents to petitioners' prayer that the proposed
plebiscite be prohibited has now collapsed and that a free plebiscite
can no longer be held.'
"At about the same time, a similar prayer was made in a

'manifestation' filed by the petitioners in L-35949, 'Gerardo Roxas, et
al. vs. Commission on Elections, et al.,' and L-35942, 'Sedfrey A.
Ordoñez, et al. vs. The National Treasurer, et al.'
"The next day, January 13, 1973, which was a Saturday, the
Court issued a resolution requiring the respondents in said three (3)
cases to comment on said 'urgent motion' and 'manifestation,' 'not
later than Tuesday noon, January 16, 1973.' Prior thereto, or on January
15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-
35948 filed a 'supplemental motion for issuance of restraining order
and inclusion of additional respondents,' praying —
'. . . that a restraining order be issued enjoining and

restraining respondent Commission on Elections, as well as the
Department of Local Governments and its head, Secretary Jose
Roño; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating
Committee and its Chairman, Guillermo de Vega; their deputies,
subordinates and substitutes, and all other officials and persons
who may be assigned such task, from collecting, certifying, and
announcing and reporting to the President or other officials
concerned, the so-called Citizens' Assemblies referendum results
allegedly obtained when they were supposed to have met during
the period comprised between January 10 and January 15, 1973,
on the two questions quoted in paragraph 1 of this Supplemental
Urgent Motion.'
"In support of this prayer, it was alleged —
'3. That petitioners are now before this Honorable Court
in order to ask further that this Honorable Court issue a
restraining order enjoining herein respondents, particularly
respondent Commission on Elections as well as the Department
of Local Governments and its head, Secretary Jose Roño; the
Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; and their deputies, subordinates
and/or substitutes, from collecting, certifying, announcing and
reporting to the President the supposed Citizens' Assemblies
referendum results allegedly obtained when they were supposed
to have met during the period between January 10 and January
15, 1973, particularly on the two questions quoted in paragraph
1 of this Supplemental Urgent Motion;
'4. That the proceedings of the so-called Citizens'
Assemblies are illegal, null and void particularly insofar as such
proceedings are being made the basis of a supposed consensus
for the ratification of the proposed Constitution because: —
[a] The elections contemplated in the
Constitution, Article XV, at which the proposed
constitutional amendments are to be submitted for
ratification, are elections at which only qualified and
duly registered voters are permitted to vote, whereas,
the so called Citizens' Assemblies were participated in
by persons 15 years of age and older, regardless of
qualifications or lack thereof, as prescribed in the
Election Code;
[b] Elections or plebiscites for the ratification
of constitutional amendments contemplated in Article
XV of the Constitution have provisions for the secrecy
of choice and of vote, which is one of the safeguards of
freedom of action, but votes in the Citizens'
Assemblies were open and were cast by raising hands;
[c] The Election Code makes ample
provisions for free, orderly and honest elections, and
such provisions are a minimum requirement for
elections or plebiscites for the ratification of
constitutional amendments, but there were no similar
provisions to guide and regulate proceedings of the so-
called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack
of material time, more than a handful of the so-called
Citizens' Assemblies have been actually formed,
because the mechanics of their organization were still
being discussed a day or so before the day they were
supposed to begin functioning: —
'Provincial governors and city and
municipal mayors had been meeting with barrio
captains and community leaders since last
Monday [January 8, 1973] to thresh out the
mechanics in the formation of the Citizens'
Assemblies and the topics for discussion."
[Bulletin Today, January 10, 1973].
'It should be recalled that the Citizens' Assemblies were
ordered formed only at the beginning of the year [Daily Express,
January 1, 1973], and considering the lack of experience of the
local organizers of said assemblies, as well as the absence of
sufficient guidelines for organization, it is too much to believe
that such assemblies could be organized at such a short notice.
'5. That for lack of material time, the appropriate
amended petition to include the additional officials and
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as
noted in the Urgent Motion of January 12, 1973, the submission
of the proposed Constitution to the Citizens' Assemblies was not
made known to the public until January 11, 1973. But be that as
it may, the said additional officials and agencies may be properly
included in the petition at bar because: —
[a] The herein petitioners have prayed in
their petition for the annulment not only of Presidential
Decree No. 73, but also of "any similar decree,
proclamation, order or instruction."
so that Presidential Decree No. 86, insofar at least as it attempts
to submit the proposed Constitution to a plebiscite by the so-
called Citizens' Assemblies, is properly in issue in this case, and
those who enforce, implement, or carry out the said Presidential
Decree No. 86, and the instructions incidental thereto clearly fall
within the scope of this petition;
[b] In their petition, petitioners sought the
issuance of a writ of preliminary injunction restraining
not only the respondents named in the petition but
also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar
decree, order, instruction, or proclamation in relation
to the holding of a plebiscite on January 15, 1973 for
the purpose of submitting to the Filipino people for
their ratification or rejection the 1972 Draft or
proposed Constitution approved by the Constitutional
Convention on November 30, 1972"; and finally,
[c] Petitioners prayed for such other relief
which may be just and equitable. [p. 39, Petition].
'Therefore, viewing the case from all angles, the officials
and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion, can lawfully he reached by the
processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has
under our laws the power, among others, of: —
"(a) Direct and immediate supervision and
control over national, provincial, city, municipal and
municipal district officials required by law to perform
duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this
Code . . .," [Election Code of 1971, Sec. 3].
'6. That unless the petition at bar is decided
immediately and the Commission on Elections, together with the
officials and government agencies mentioned in paragraph 3 of
this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President
the results of the alleged voting of the so-called Citizens'
Assemblies, irreparable damage will be caused to the Republic of
the Philippines, the Filipino people, the cause of freedom and
democracy, and the petitioners herein because:
[a] After the result of the supposed voting on
the questions mentioned in paragraph 1 hereof shall
have been announced, a conflict will arise between
those who maintain that the 1935 Constitution is still
in force, on the one hand, and those who will maintain
that it has been superseded by the proposed
Constitution, on the other, thereby creating confusion,
if not chaos;
[b] Even the jurisdiction of this Court will be
subject to serious attack because the advocates of the
theory that the proposed Constitution has been ratified
by reason of the announcement of the results of the
proceedings of the so-called Citizens' Assemblies will
argue that, General Order No. 3, which shall also be
deemed ratified pursuant to the Transitory Provisions
of the proposed Constitution, has placed Presidential
Decree Nos. 73 and 86 beyond the reach and
jurisdiction of this Honorable Court.'
"On the same date — January 15, 1973 — the Court passed a
resolution requiring the respondents in said case G.R. No. L-35948 to
file 'file an answer to the said motion not later than 4 P.M., Tuesday,
January 16, 1973,' and setting the motion for hearing 'on January 17,
1973, at 9:30 A.M.' While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on the writer of
this opinion and said that, upon instructions of the President, he (the
Secretary of Justice) was delivering to him (the writer) a copy of
Proclamation No. 1102, which had just been signed by the President.
Thereupon, the writer returned to the Session Hall and announced to
the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in
connection therewith was still going on — and the public there present
that the President had, according to information conveyed by the
Secretary of Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102 which is of
the following tenor:
'BY THE PRESIDENT OF THE PHILIPPINES

'PROCLAMATION NO. 1102
'ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF
THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
'WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
'WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities pursuant
to Presidential Decree No. 86, dated December 31, 1972,
composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over,
citizens of the Philippines and who are registered in the list of
Citizen Assembly members kept by the barrio, district or ward
secretary;
'WHEREAS, the said Citizens Assemblies were established
precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the
citizenry to express their views on important national issues;
'WHEREAS, responding to the clamor of the people and
pursuant to Presidential Decree No. 86-A, dated January 5, 1973,
the following questions were posed before the Citizens
Assemblies or Barangays: Do you approve of the New
Constitution? Do you still want a plebiscite to be called to ratify
the new Constitution?
'WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty-one (14,976,561) members of all the
Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its
rejection; while on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight thousand
eight hundred fourteen (14,298,814) answered that there was no
need for a plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
'WHEREAS, since the referendum results show that more
than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution, the
Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the
Filipino people;
'NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines, and
has thereby come into effect.
'IN WITNESS WHEREOF, I have hereunto set my hand and
caused the seal of the Republic of the Philippines to be affixed.
'Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
'President of the Philippines
'By the President:
'ALEJANDRO MELCHOR
'Executive Secretary'
"Such is the background of the cases submitted for Our
determination. After admitting some of the allegations made in the
petition in L-35948 and denying the other allegations thereof,
respondents therein alleged in their answer thereto, by way of
affirmative defenses: 1) that the 'questions raised' in said petition 'are
political in character'; 2) that 'the Constitutional Convention acted
freely and had plenary authority to propose not only amendments but
a Constitution which would supersede the present Constitution' 3) that
'the President's call for a plebiscite and the appropriation of funds for
this purpose are valid'; 4) that 'there is not an improper submission'
and there can be a plebiscite under Martial Law'; and 5) that the
'argument that the Proposed Constitution is vague and incomplete,
makes an unconstitutional delegation of power, includes a referendum
on the proclamation of Martial Law and purports to exercise judicial
power' is 'not relevant and . . . without merit.' Identical defenses were
set up in the other cases under consideration.
"Immediately after the hearing held on January 17, 1973, or since

the afternoon of that date, the Members of the Court have been
deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each
Member write his own views thereon and that thereafter the Chief
Justice should state the result or the votes thus cast on the points in
issue. Hence, the individual views of my brethren in the Court are set
forth in the opinions attached hereto, except that, instead of writing
their separate opinions, some Members have preferred to merely
concur in the opinion of one of our colleagues."
Then the writer of said decision expressed his own opinion on the
issues involved therein, after which he recapitulated the views of the
Members of the Court, as follows:
"1. There is unanimity on the justiciable nature of the issue

on the legality of Presidential Decree No. 73.
"2. On the validity of the decree itself, Justices Makalintal,

Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members
of the Court, are of the opinion that the issue has become moot and
academic, whereas Justices Barredo, Makasiar and Antonio voted to
uphold the validity of said Decree.
"3. On the authority of the 1971 Constitutional Convention to

pass the proposed Constitution or to incorporate therein the provisions
contested by the petitioners in L-35948, Justices Makalintal, Castro,
Teehankee and Esguerra opine that the issue has become moot and
academic. Justices Fernando, Barredo, Makasiar, Antonio and myself
have voted to uphold the authority of the Convention.
"4. Justice Fernando, likewise, expressed the view that the

1971 Constitutional Convention had authority to continue in the
performance of its functions despite the proclamation of Martial Law. In
effect, Justices Barredo, Makasiar and Antonio hold the same view.
"5. On the question whether the proclamation of Martial Law

affected the proper submission of the proposed Constitution to a
plebiscite, insofar as the freedom essential therefor is concerned
Justice Fernando is of the opinion that there is a repugnancy between
the election contemplated under Art. XV of the 1935 Constitution and
the existence of Martial Law, and would, therefore, grant the petitions
were they not moot and academic. Justices Barredo, Antonio and
Esguerra are of the opinion that that issue involves questions of fact
which cannot be predetermined, and that Martial Law per se does not
necessarily preclude the factual possibility of adequate freedom for the
purposes contemplated.
"6. On Presidential Proclamation No. 1102, the following

views were expressed:
"a. Justices Makalintal, Castro, Fernando, Teehankee,

Makasiar, Esguerra and myself are of the opinion that the
question of validity of said Proclamation has not been properly
raised before the Court, which, accordingly, should not pass upon
such question.
"b. Justice Barredo holds that the issue on the
constitutionality of Proclamation No. 1102 has been submitted to
and should be determined by the Court, and that the purported
ratification of the Proposed Constitution . . . based on the
referendum among Citizens' Assemblies falls short of being in
strict conformity with the requirements of Article XV of the 1935
Constitution,' but that such unfortunate drawback
notwithstanding, considering all other related relevant
circumstances, . . . the new Constitution is legally recognizable
and should be recognized as legitimately in force.'
"c. Justice Zaldivar maintains unqualifiedly that the
Proposed Constitution has not been ratified in accordance with
Article XV of the 1935 Constitution, and that, accordingly, it has
no force and effect whatsoever.
"d. Justice Antonio feels 'that the Court is not
competent to act' on the issue whether the Proposed Constitution
has been ratified by the people or not, 'in the absence of any
judicially discoverable and manageable standards,' since the
issue 'poses a question of fact.'
"7. On the question whether or not these cases should be

dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee, and the writer
similarly voted, except as regards Case No. L-35948 as to which they
voted to grant to the petitioners therein a reasonable period of time
within which to file appropriate pleadings should they wish to contest
the legality of Presidential Proclamation No. 1102. Justice Zaldivar
favors the granting of said period to the petitioners in said Case No. L-
35948 for the aforementioned purpose, but he believes, in effect, that
the Court should go farther and decide on the merits everyone of the
cases under consideration."
Accordingly, the Court — acting in conformity with the position taken

by six (6) of its members, 1 with three (3) members dissenting, 2 with respect
to G.R. No. L-35948, only, and another member 3 dissenting, as regards all of
the cases — dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R.
No. L-36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents, from implementing any of the provisions of the
proposed Constitution not found in the present Constitution' — referring to
that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for himself,
and in behalf of all citizens and voters similarly situated," was amended on
or about January 24, 1973. After reciting in substance the facts set forth in
the decision in the plebiscite cases, Javellana alleged that the President had
announced "the immediate implementation of the New Constitution, thru his
Cabinet, respondents including," and that the latter "are acting without, or in
excess of jurisdiction in implementing the said proposed Constitution" upon
the ground: "that the President, as Commander-in-Chief of the Armed Forces
of the Philippines, is without authority to create the Citizens Assemblies";
that the same "are without power to approve the proposed Constitution . . .";
"that the President is without power to proclaim the ratification by the
Filipino people of the proposed Constitution"; and "that the election held to
ratify the proposed Constitution was not a free election, hence null and
void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Tañada against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, Budget Commissioner, the Chairman of the Presidential
Commission on Reorganization, the Treasurer of the Philippines, the
Commission on Elections and the Commissioner of Civil Service; 4 on
February 3, 1973, by Eddie Monteclaro, personally and as President of the
National Press Club of the Philippines, against the Executive Secretary, the
Secretary of Public Information, the Auditor General, Budget Commissioner
and the National Treasurer; 5 and on February 12, 1973, by Napoleon V.
Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6
against the Executive Secretary, the Secretary of National Defense, the
Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito
R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw,
the first as "duly elected Senator and Minority Floor Leader of the Senate,"
and the others as "duly elected members" thereof, filed Case G.R. No. L-
36165, against the Executive Secretary, the Secretary of National Defense,
the Chief of Staff of the Armed Forces of the Philippines, the Secretary of
General Services, the President and the President Pro Tempore of the
Senate. In their petition — as amended on January 26, 1973 — petitioners
Gerardo Roxas, et al. allege, inter alia, that the term of office of three of the
aforementioned petitioners 8 would expire en December 31, 1975, and that
that of the others 9 on December 31, 1977; that pursuant to our 1935
Constitution, "which is still in force," Congress of the Philippines "must
convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M.,
which is the regular customary hour of its opening session"; that "on said
day, from 10:00 A.M. up to the afternoon," said petitioners, "along with their
other colleagues, were unlawfully prevented from using the Senate Session
Hall, the same having been closed by the authorities in physical possession
and control of the Legislative Building'; that "(a)t about 5:00 to 6:00 P.M. of
the said day, the premises of the entire Legislative Building were ordered
cleared by the same authorities, and no one was allowed to enter and have
access to said premises"; that "(r)espondent Senate President Gil J. Puyat
and, in his absence, respondent President Pro Tempore Jose Roy were asked
by petitioning Senators to perform their duties under the law and the Rules
of the Senate, but unlawfully refrained and continue to refrain from doing
so"; that the petitioners are ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondents
Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that "the
Senate premises in the Congress of the Philippines Building . . . are occupied
by and are under the physical control of the elements of military
organizations under the direction of said respondents"; that, as per "official
reports, the Department of General Services . . . is now the civilian agency in
custody of the premises of the Legislative Building"; that respondents "have
unlawfully excluded and prevented, and continue to so exclude and prevent"
the petitioners "from the performance of their sworn duties, invoking the
alleged approval of the 1972 (1973) Constitution of the Philippines by action
of the so-called Citizens' Assemblies on January 10, 1973 to January 15,
1973, as stated in and by virtue of Proclamation No. 1102 signed and issued
by the President of the Philippines"; that "the alleged creation of the Citizens'
Assemblies as instrumentalities for the ratification of the Constitution of the
Republic of the Philippines" is inherently illegal and palpably
unconstitutional; that respondents Senate President and Senate President
Pro Tempore "have unlawfully refrained and continue to refrain from and/or
unlawfully neglected and continue to neglect the performance of their duties
and functions as such officers under the law and the Rules of the Senate"
quoted in the petition; that because of events supervening the institution of
the plebiscite cases, to which reference has been made in the preceding
pages, the Supreme Court dismissed said cases on January 22, 1973, by a
majority vote, upon the ground that the petitions therein had become moot
and academic; that the alleged ratification of the 1972 (1973) Constitution
"is illegal, unconstitutional and void and . . . can not have superseded and
revoked the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their "agents,
representatives and subordinates . . . have excluded the petitioners from an
office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat
and Jose Roy have unlawfully refrained from convening the Senate for its 8th
session, assuming general jurisdiction over the Session Hall and the
premises of the Senate and . . . continue such inaction up to this time and . .
. a writ of mandamus is warranted in order to compel them to comply with
the duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no
appeal nor other speedy and adequate remedy in the ordinary course of law
except by invoking the equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that,
"pending hearing on the merits, a writ of preliminary mandatory injunction
be issued ordering the respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines,
and the . . . Secretary of General Services, as well as all their agents,
representatives and subordinates to vacate the premises of the Senate of
the Philippines and to deliver physical possession of the same to the
President of the Senate or his authorized representative"; and that "after
hearing, judgment be rendered declaring null and void Proclamation No.
1102 . . . and any order, decree, or proclamation having the same import
and objective, issuing the writs of prohibition and mandamus, as prayed for
against the above-mentioned respondents, and making the writ of injunction
permanent; and that a writ of mandamus be issued against the respondents
Gil J. Puyat and Jose Roy directing them to comply with their duties and
functions as President and President Pro Tempore, respectively, of the
Senate of the Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or
amended petitions, respondents filed, with the leave of Court first had and
obtained, a consolidated comment on said petitions and/or amended
petitions, alleging that the same ought to have been dismissed outright;
controverting petitioners' allegations concerning the alleged lack or
impairment of the freedom of the 1971 Constitutional Convention to approve
the proposed Constitution, its alleged lack of authority to incorporate certain
contested provisions thereof, the alleged lack of authority of the President to
create and establish Citizens' Assemblies "for the purpose of submitting to
them the matter of ratification of the new Constitution," the alleged
"improper or inadequate submission of the proposed constitution," the
"procedure for ratification adopted . . . through the Citizens Assemblies"; and
maintaining that: 1) "(t)he Court is without jurisdiction to act on these
petitions"; 2) the questions raised therein are "political in character and
therefore non-justiciable"; 3) "(t)here was substantial compliance with Article
XV of the 1935 Constitution"; 4) "(t)he Constitution was properly submitted
to the people in a free, orderly and honest election"; 5) "Proclamation No.
1102, certifying the results of the election, is conclusive upon the courts";
and 6) "(t)he amending process outlined in Article XV of the 1935
Constitution is not exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said case
"is a highly political question which, under the circumstances, this . . . Court
would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in
futility."
On February 5, 1973, the Court issued a resolution requiring
respondents in L-36236 to comment on the petition therein not later than
Saturday, February 10, 1973, and setting the case for hearing on February
12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court
resolved to consider the comments of the respondents in cases G.R. Nos. L-
36142, L-36164 and L-36165, as motions to dismiss the petitions therein,
and to set said cases for hearing on the same date and time as L-36236. On
that date, the parties in G.R. No. L-36283 10 agreed that the same be,
likewise, heard, as it was, in fact, heard jointly with the aforementioned
cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which
began on February 12, 1973, shortly after 9:30 a.m., was continued not only
that afternoon, but, also, on February 13, 14, 15 and 16, morning and
afternoon, after which the parties were granted up to February 24, 1973,
noon, within which to submit their notes of oral arguments and additional
arguments, as well as the documents required of them or whose
presentation was reserved by them. The same resolution granted the parties
until March 1, 1973, to reply to the notes filed by their respective opponents.
Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their
aforementioned notes on February 24, 1973, on which date the Solicitor
General sought an extension of time up to March 3, 1973, within which to file
his notes, which was granted, with the understanding that said notes shall
include his reply to the notes already filed by the petitioners in G.R. Nos. L-
36164 and L-36165. Counsel for the petitioners, likewise, moved and were
granted an extension of time, to expire on March 10, 1973, within which to
file, as they did, their notes in reply to those submitted by the Solicitor
General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a
"Manifestation and Supplemental Rejoinder," whereas the Office of the
Solicitor General submitted in all these cases a "Rejoinder to Petitioners'
Replies."
After deliberating on these cases, the members of the Court agreed
that each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his personal opinion on the
issues before the Court. After the exposition of his aforesaid opinion, the
writer will make, concurrently with his colleagues in the Court, a resumé of
summary of the votes cast by them in these cases.
Writer's Personal Opinion
I
Alleged academic futility of further
proceedings in G.R. No. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat
and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is
predicated upon the fact that, in Our decision in the plebiscite cases, Mr.
Justice Barredo had expressed the view that the 1935 Constitution had "pro
t a n t o passed into history" and "been legitimately supplanted by the
Constitution now in force by virtue of Proclamation No. 1102 . . ."; that Mr.
Justice Antonio did not feel "that this Court is competent to act" in said cases
"in the absence of any judicially discoverable and manageable standards"
and because "the access to relevant information is insufficient to assure the
correct determination of the issue," apart from the circumstance that "the
new constitution has been promulgated and great interests have already
arisen under it" and that the political organ of the Government has
recognized its provisions; whereas, Mr. Justice Esguerra had postulated that
"(w)ithout any competent evidence . . . about the circumstances attending
the holding" of the "referendum or plebiscite" thru the Citizens' Assemblies,
he "cannot say that it was not lawfully held" and that, accordingly, he
assumed "that what the proclamation (No. 1102) says on its face is true and
until overcome by satisfactory evidence" he could not "subscribe to the
claim that such plebiscite was not held accordingly"; and that he accepted
"as a fait accompli that the Constitution adopted (by the 1971 Constitutional
Convention) on November 30, 1972, has been duly ratified."
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
under these circumstances, "it seems remote or improbable that the
necessary eight (8) votes under the 1935 Constitution, and much less the
ten (10) votes required by the 1972 (1973) Constitution, can be obtained for
the relief sought in the Amended Petition" in G.R. No. L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo
announced publicly, in open court, during the hearing of these cases, that he
was and is willing to be convinced that his aforementioned opinion in the
plebiscite cases should be reconsidered and changed. In effect, he thus
declared that he had an open mind in connection with the cases at bar, and
that in deciding the same he would not necessarily adhere to said opinion if
the petitioners herein succeeded in convincing him that their view should be
sustained.
Secondly, counsel for the aforesaid respondents had apparently
assumed that, under the 1935 Constitution, eight (8) votes are necessary to
declare invalid the contested Proclamation No. 1102. I do not believe that
this assumption is borne out by any provision of said Constitution. Section 10
of Article VIII thereof reads:
"All cases involving the constitutionality of a treaty or law shall be
heard and decided by the Supreme Court en banc, and no treaty or law
may be declared unconstitutional without the concurrence of two-thirds
of all the members of the Court."
Pursuant to this section, the concurrence of two-thirds of all the

Members of the Supreme Court is required only to declare a "treaty or law"
unconstitutional. Construing said provision, in a resolution dated September
16, 1949, then Chief Justice Moran, voicing the unanimous view of the
Members of this Court, postulated:
". . . There is nothing either in the Constitution or in the Judiciary

Act requiring the vote of eight Justices to nullify a rule or regulation or
an executive order issued by the President. It is very significant that in
the previous drafts of Section 10, Article VIII of the Constitution,
'execution order' and 'regulation' were included among those that
required for their nullification the vote of two-thirds of all the members
of the Court. But 'executive order' and 'regulation' were later deleted
from the final draft (Aruego, The Framing of the Philippine Constitution,
Vol. I, pp. 495, 496), and thus a mere majority of six members of this
Court is enough to nullify them." 11
The distinction is not without reasonable foundation. The two-thirds

vote (eight [8] votes) requirement, indeed, was made to apply only to treaty
and law, because, in these cases, the participation of the two other
departments of the government — the Executive and the Legislative — is
present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law(statute) passed by Congress is subject to the
approval or veto of the President, whose disapproval cannot be overridden
except by the vote of two-thirds (2/3) of all members of each House of
Congress. 12 A treaty is entered into by the President with the concurrence of
the Senate, 13 which is not required in the case of rules, regulations or
executive orders which are exclusive acts of the President. Hence, to nullify
the same, a lesser number of votes is necessary in the Supreme Court than
that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders
issued by the President, the dictum applies with equal force to executive
proclamations, like said Proclamation No. 1102, inasmuch as the authority to
issue the same is governed by Section 63 of the Revised Administrative
Code, which provides:
"Administrative acts and commands of the (Governor-General)

President of the Philippines touching the organization or mode of
operation of the Government or rearranging or readjusting any of the
districts, divisions, parts, or ports of the (Philippine Islands) Philippines
and all acts and commands governing the general performance of
duties by public employees or disposing of issues of general concern
shall be made effective in executive orders.

"Executive orders fixing the dates when specific laws,
resolutions, or orders are to have or cease to (have) effect and any
information concerning matters of public moment determined by law,
resolution, or executive orders, may be promulgated in an executive
proclamation, with all the force of an executive order." 14
In fact, while executive orders embody administrative acts or

commands of the President, executive proclamations are mainly informative
and declaratory in character, and so does counsel for respondents Gil J.
Puyat and Jose Roy maintain in G.R. No. L-36165. 15 As consequence, an
executive proclamation has no more than "the force of an executive order,"
so that, for the Supreme Court to declare such proclamation
unconstitutional, under the 1935 Constitution, the same number of votes
needed to invalidate an executive order, rule or regulation — namely, six (6)
votes — would suffice.
As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in force, it is obvious
that such question depends upon whether or not the said new Constitution
has been ratified in accordance with the requirements of the 1935
Constitution, upon the authority of which said Constitutional Convention was
called and approved the proposed Constitution. It is well settled that the
matter of ratification of an amendment to the Constitution should be settled
b y applying the provisions of the Constitution in force at the time of the
alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of
Proclamation No. 1102 partake of the nature
of a political, and, hence,
non-justiciable question?
The Solicitor General maintains in his comment the affirmative view
and this is his main defense. In support thereof, he alleges that "petitioners
would have this Court declare as invalid the New Constitution of the
Republic" from which — he claims — "this Court now derives its authority";
that "nearly 15 million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the prospect of
unsettling acts done in reliance on it caution against interposition of the
power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New Constitution";
that "the country's foreign relations are now being conducted in accordance
with the new charter"; that "foreign governments have taken note of it"; that
the "plebiscite cases" are "not precedents for holding questions regarding
proposal and ratification justiciable"; and that "to abstain from judgment on
the ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to
"declare" the new Constitution invalid. What petitioners dispute is the theory
that it has been validly ratified by the people, especially that they have done
s o in accordance with Article XV of the 1935 Constitution. The petitioners
maintain that the conclusion reached by the Chief Executive in the
dispositive portion of Proclamation No. 1102 is not borne out by the
whereases preceding the same, as the predicates from which said conclusion
was drawn; that the plebiscite or "election" required in said Article XV has
not been held; that the Chief Executive has no authority, under the 1935
Constitution, to dispense with said election or plebiscite; that the
proceedings before the Citizens' Assemblies did not constitution and may not
be considered as such plebiscite; that the facts of record abundantly show
that the aforementioned Assemblies could not have been held throughout
the Philippines from January 10 to January 15, 1973; and that, in any event,
the proceedings in said Assemblies are null and void as an alleged
ratification of the new Constitution proposed by the 1971 Constitutional
Convention, not only because of the circumstances under which said
Assemblies had been created and held, but, also, because persons
disqualified to vote under Article V of the Constitution were allowed to
participate therein, because the provisions of our Election Code were not
observed in said Assemblies, because the same were not held under the
supervision of the Commission on Elections, in violations of Section 2 of
Article X of the 1935 Constitution, and because the existence of Martial Law
and General Order No. 20, withdrawing or suspending the limited freedom to
discuss the merits and demerits of said proposed Constitution, impaired the
people's freedom in voting thereon, particularly, a viva voce, as it was done
in many instances, as well as their ability to have a reasonable knowledge of
the contents of the document on which they were allegedly called upon to
express their views.
Referring now more specifically to the issue on whether the new
Constitution proposed by the 1971 Constitutional Convention has been
ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that the
answer must be in the negative. Indeed, such is the position taken by this
Court, 17 in an endless line of decisions, too long to leave any room for
possible doubt that said issue is inherently and essentially justiciable. Such,
also, has been the consistent position of the courts of the United States of
America, whose decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned after that of
the United States. Besides, no plausible reason has, to my mind, been
advanced to warrant a departure from said position, consistently with the
form of government established under said Constitution.
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory
of the respondents therein that the question whether Presidential Decree No.
73 calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a
political nature; and We unanimously declared that the issue was a
justiciable one. With identical unanimity, We overruled the respondents'
contention in the 1971 habeas corpus cases, 19 questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker 20 and Montenegro vs. Castañeda, 21 insofar as it
adhered to the former case, which view We, accordingly abandoned and
refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales vs. Commission on Elections, 22 the political-question
theory adopted in Mabanag vs. Lopez Vito. 23 Hence, respondents herein
urge Us to reconsider the action thus taken by the Court and to revert to and
follow the views expressed in Barcelon v. Baker and Mabanag vs. Lopez Vito.
24
The reasons adduced in support thereof are, however, substantially the

same as those given in support of the political-question theory advanced in
said habeas corpus and plebiscite cases, which were carefully considered by
this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas
corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers — characteristic of the Presidential system
of government — the functions of which are classified or divided, by reason
of their nature, into three (8) categories, namely: 1) those involving the
making of laws, which are allocated to the legislative department; 2) those
concerned mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive
department; and 3) those dealing with the settlement of disputes,
controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable, which are apportioned to courts of
justice. Within its own sphere — but only within such sphere each
department is supreme and independent of the others, and each is devoid of
authority, not only to encroach upon the powers or field of action assigned to
any of the other departments, but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken or decisions
made by the other departments — provided that such acts, measures or
decisions are within the area allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system
goes hand in hand with the system of checks and balances, under which
each department is vested by the Fundamental Law with some powers to
forestall, restrain or arrest a possible or actual misuse or abuse of powers by
the other departments. Hence, the appointing power of the Executive, his
pardoning power, his veto power, his authority to call the Legislature or
Congress to special sessions and even to prescribe or limit the object or
objects of legislation that may be taken up in such sessions, etc. Conversely,
Congress or an agency or arm thereof — such as the Commission on
Appointments; — may approve or disapprove some appointments made by
the President. It, also, has the power of appropriation, to "define, prescribe,
and apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by the
Constitution, the "Supreme Court and . . . such inferior courts as may be
established by law," may settle or decide with finality, not only justiciable
controversies between private individuals or entities, but, also, disputes or
conflicts between a private individual or entity, on the one hand, and an
officer or branch of the government, on the other, or between two (2)
officers or branches of service, when the latter officer or branch is charged
with acting without jurisdiction or in excess thereof or in violation of law. And
so, when a power vested in said officer or branch of the government is
absolute or unqualified, the acts in the exercise of such power are said to be
political in nature, and, consequently, non-justiciable or beyond judicial
review. Otherwise, courts of justice would be arrogating upon themselves a
power conferred by the Constitution upon another branch of the service to
the exclusion of the others. Hence, in Tañada vs. Cuenco , 26 this Court
quoted with approval from In re McConaughy, 27 the following:
"'At the threshold of the case we are met with the assertion that
the questions involved are political, and not judicial. If this is correct,
the court has no jurisdiction as the certificate of the state canvassing
board would then be final, regardless of the actual vote upon the
amendment. The question thus raised is a fundamental one; but it has
been so often decided contrary to the view contended for by the
Attorney General that it would seem to be finally settled.
xxx xxx xxx
"'. . . What is generally meant, when it is said that a question is

political, and not judicial, is that it is a matter which is to be exercised
by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of
the government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan.
155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16
C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle, 151 Ill. 41 37 N.E. 683, 25
L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its
discretion determine whether it will pass a law or submit a proposed
constitutional amendment to the people. The courts have no judicial
control over such matters, not merely because they involve political
questions, but because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor may exercise
the powers delegated to him, free from judicial control, so long as he
observes the laws and acts within the limits of the power conferred. His
discretionary acts cannot be controllable, not primarily because they
are of a political nature, but because the Constitution and laws have
placed the particular matter under his control. But every officer under a
constitutional government must act according to law and subject to its
restrictions, and every departure therefrom or disregard thereof must
subject him to that restraining and controlling power of the people,
acting through the agency of the judiciary; for it must be remembered
that the people act through courts, as well as through the executive or
the Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the special
duty of determining the limitations which the law places upon all
official action. The recognition of this principle, unknown except in
Great Britain and America, is necessary, to "the end that the
government may be one of laws and not of men" — words which
Webster said were the greatest contained in any written constitutional
document.' (Italics supplied.)"
and, in an attempt to describe the nature of a political question in terms, it

was hoped, understandable to the laymen, We added that ". . . the term
'political question' connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language of
Corpus Juris Secundum (supra), it refers to 'those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the government.' It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject
to limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or non-
political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations — particularly those prescribed or imposed by the Constitution —
would be set at naught. What is more, the judicial inquiry into such issue and
the settlement thereof are the main functions of courts of justice under the
Presidential form of government adopted in our 1935 Constitution, and the
system of checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation — made
particularly more exacting and peremptory by our oath, as members of the
highest Court of the land, to support and defend the Constitution — to settle
it. This explains why, in Miller vs. Johnson, 28 it was held that courts have a
"duty, rather than a power ", to determine whether another branch of the
government has "kept within constitutional limits." Not satisfied with this
postulate, the court went farther and stressed that, if the Constitution
provides how it may be amended — as it is in our 1935 Constitution — "then,
unless the manner is followed, the judiciary as the interpreter of that
constitution, will declare the amendment invalid." 29 In fact, this very Court
— speaking through Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and foremost
leaders of the Convention that drafted the 1935 Constitution — declared, as
early as July 15, 1936, that "(i)n times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several
departments" of the government. 30
The Solicitor General has invoked Luther vs. Borden 31 in support of his
stand that the issue under consideration is non-justiciable in nature. Neither
the factual background of that case nor the action taken therein by the
Federal Supreme Court has any similarity with or bearing on the cases under
consideration.
Luther vs. Borden was an action for trespass filed by Luther with the
Circuit Court of the United States against Borden and others for having
forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of
England, alleged in their defense that they had acted in obedience to the
commands of a superior officer, because Luther and others were engaged in
a conspiracy to overthrow the government by force and the state had been
placed by competent authority under Martial Law. Such authority was the
charter government of Rhode Island at the time of the Declaration of
Independence, for — unlike other states which adopted a new Constitution
upon secession from England — Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts of
the Legislature, as were necessary to adapt it to its subsequent condition as
an independent state. It was under this form of government when Rhode
Island joined other American states in the Declaration of Independence and,
by subsequently ratifying the Constitution of the United States, became a
member of the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature having
failed to bring about the desired effect, meetings were held and associations
formed — by those who belonged to this segment of the population — which
eventually resulted in a convention called for the drafting of a new
Constitution to be submitted to the people for their adoption or rejection.
The convention was not authorized by any law of the existing government.
The delegates to such convention framed a new Constitution which was
submitted to the people. Upon the return of the votes cast by them, the
convention declared that said Constitution had been adopted and ratified by
a majority of the people and became the paramount law and Constitution of
Rhode Island.
The charter government, which was supported by a large number of
citizens of the state, contested, however, the validity of said proceedings.
This notwithstanding, one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to assert authority by
force of arms, and many citizens assembled to support him. Thereupon, the
charter government passed an Act declaring the state under Martial Law and
adopted measures to repel the threatened attack and subdue the rebels.
This was the state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther, for engaging in
the support of the rebel government — which was never able to exercise any
authority in the state — broke into his house.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the people.
"(T)he times and places at which the votes were to be given, the persons
who were to receive and return them, and the qualifications of the voters
having all been previously authorized and provided for by law passed by the
charter government," the latter formally surrendered all of its power to the
new government, established under its authority, in May 1843, which had
been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military
force, had made an unsuccessful attempt to take possession of the state
arsenal in Providence, but he was repulsed, and, after an "assemblage of
some hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish" his government. ". . .
until the Constitution of 1843" — adopted under the auspices of the charter
government — "went into operation, the charter government continued to
assert its authority and exercise its powers and to enforce obedience
throughout the state . . . ."
Having offered to introduce evidence to prove that the constitution of
the rebels had been ratified by the majority of the people, which the Circuit
Court rejected, apart from rendering judgment for the defendants, the
plaintiff took the case for review to the Federal Supreme Court which
affirmed the action of the Circuit Court, stating:
"It is worthy of remark, however, when we are referring to the

authority of State decisions, that the trial of Thomas W. Dorr took place
after the constitution of 1843 when into operation. The judges who
decided that the case held their authority under that constitution; and
it is admitted on all hands that it was adopted by the people of the
State, and is the lawful and established government. It is the decision,
therefore, of a State court, whose judicial authority to decide upon the
constitution and laws of Rhode Island is not questioned by either party
to this controversy, although the government under which it acted was
framed and adopted under the sanction and laws of the charter
government.
"The point, then, raised here has been already decided by the
courts of Rhode Island. The question relates, altogether, to the
constitution and laws of that State; and the well settled rule in this
court is, that the courts of the United States adopt and follow the
decisions of the State courts in questions which concern merely the
constitution and laws of the State.
"Upon what ground could the Circuit Court of United States which
tried this case have departed from this rule, and disregarded and
overruled the decisions of the courts of Rhode Island? Undoubtedly the
courts of the United States have certain powers under the Constitution
and laws of the United States which do not belong to the State courts.
B u t the power of determining that a State government has been
lawfully established, which the courts of the State disown and
repudiate, is not one of them. Upon such a question the courts of the
United States are bound to follow the decisions of the State tribunals,
and must therefore regard the charter government as the lawful and
established government during the time of this contest." 32
It is thus apparent that the context within which the case ofLuther vs.
Borden was decided is basically and fundamentally different from that of the
cases at bar. To begin with, the case did not involve a federal question, but
one purely municipal in nature. Hence, the Federal Supreme Court was
"bound to follow the decisions of the State tribunals" of Rhode Island
upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore, an
obiter dictum. Besides, no decision analogous to that rendered by the State
Court of Rhode Island exists in the cases at bar. Secondly, the states of the
Union have a measure of internal sovereignty upon which the Federal
Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their authority from
the national government. Again, unlike our 1935 Constitution, the charter or
organic law of Rhode Island contained no provision on the manner,
procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and there is a
fundamental difference between these two (2) types of recognition, the first
being generally conceded to be a political question, whereas the nature of
the latter depends upon a number of factors, one of them being whether the
new Constitution has been adopted in the manner prescribed in the
Constitution in force at the time of the purported ratification of the former,
which is essentially a justiciable question. There was, in Luther vs. Borden, a
conflict between two (2) rival governments, antagonistic to each other, which
is absent in the present cases. Here, the Government established under the
1935 Constitution is the very same government whose Executive
Department has urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now alleges that it has
been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther
vs. Borden, decided in 1849, on matters other than those referring to its
power to review decisions of a state court concerning the constitution and
government of that state, not the Federal Constitution or Government, are
manifestly neither controlling, nor even persuasive in the present cases,
having — as the Federal Supreme Court admitted — no authority whatsoever
to pass upon such matters or to review decisions of said state court thereon.
In fact, referring to that case, the Supreme Court of Minnesota had the
following to say:
"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by

those who assert that the courts have no power to determine questions
of a political character. It is interesting historically, but it has not the
slightest application to the case at bar. When carefully analyzed, it
appears that it merely determines that the federal courts will accept as
final and controlling a decision of the highest court of a state upon a
question of the construction of the Constitution of the state. . . . ." 33
Baker vs. Carr, 34 cited by respondents, involved an action to annul a

Tennessee statute apportioning the seats in the General Assembly among
the counties of the State, upon the theory that the legislation violated the
equal protection clause. A district court dismissed the case upon the ground,
among others, that the issue was a political one, but, after a painstaking
review of the jurisprudence on the matter, the Federal Supreme Court
reversed the appealed decision and held that said issue was justiciable and
non-political, inasmuch as: ". . . (d)eciding whether a matter has in any
measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever
authority has been committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of
the Constitution. . . ."
Similarly, in Powell vs. McCormack, 35 the same Court, speaking
through then Chief Justice Warren, reversed a decision of the Court of
Appeals of New York affirming that of a Federal District Court, dismissing
Powell's action for a declaratory judgment declaring thereunder that he —
whose qualifications were uncontested — had been unlawfully excluded from
the 90th Congress of the U.S. Said dismissal was predicated upon the
ground, inter alia, that the issue was political, but the Federal Supreme Court
held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of
American jurisprudence on the matter. Owing to the lucidity of its appraisal
thereof, We append the same to this opinion as Annex A thereof.
After an exhaustive analysis of the cases on this subject, the Court
concluded:
"The authorities are thus practically uniform in holding that

whether a constitutional amendment has been properly adopted
according to the requirements of an existing Constitution is a judicial
question. There can be little doubt that the consensus of judicial
opinion is to the effect that it is the absolute duty of the judiciary to
determine whether the Constitution has been amended in the manner
required by the Constitution, unless a special tribunal has been created
to determine the question; and even then many of the courts hold that
the tribunal cannot be permitted to illegally amend the organic law. . . .
." 36

In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it is
clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature,
and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated
that "the courts cannot reject as 'no law suit'" — because it allegedly
involves a political question — "a bona fide controversy as to whether some
action denominated 'political' exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution
been ratified conformably to said Art. XV
of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon the ground: 1)
that the President "is without authority to create the Citizens' Assemblies"
through which, respondents maintain, the proposed new Constitution has
been ratified; 2) that said Assemblies "are without power to approve the
proposed Constitution"; 3) that the President "is without power to proclaim
the ratification by the Filipino people of the proposed Constitution"; and 4)
that "the election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds in support of said
negative view, the petitioners in L-36164 contend: 1) that the President "has
no power to call a plebiscite for the ratification or rejection" of the proposed
Constitution or "to appropriate funds for the holding of the said plebiscite";
2) that the proposed new or revised Constitution "is vague and incomplete,"
as well as "contains provisions which are beyond the powers of the 1971
Convention to enact," thereby rendering it "unfit for . . . submission to the
people;" 3) that "(t)he period of time between November 30, 1972 when the
1972 draft was approved and January 11-15, 1973," when the Citizens'
Assemblies supposedly ratified said draft, "was too short, worse still, there
was practically no time for the Citizens' Assemblies to discuss the merits of
the Constitution which the majority of them have not read and which they
never knew would be submitted to them for 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 of
discussion and no opportunity to concentrate on the matter submitted to
them when the 1972 draft was supposedly submitted to the Citizens'
Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative
view, that: 1) "(w)ith a government-controlled press, there can never be a
fair and proper submission of the proposed Constitution to the people"; and
2) Proclamation No. 1102 is null and void "(i)nasmuch as the ratification
process" prescribed "in the 1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the
petitioners in the above-mentioned cases, the petitioners in L-36283 argue
that "(t)he creation of the Citizens' Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to
either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the
negative view have already been set forth earlier in this opinion. Hence, it is
unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy
— although more will be said later about them — and by the Solicitor
General, on behalf of the other respondents in that case and the
respondents in the other cases.
1. What is the procedure prescribed by the
1935 Constitution for its amendment?
Under Section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
1. That the amendments to the Constitution be proposed either by
Congress or by a convention called for that purpose, "by a vote of three-
fourths of all the Members of the Senate and the House of Representatives
voting separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their
ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes
cast" in said election.
Compliance with the first requirement is virtually conceded, although
the petitioners in L-36164 question the authority of the 1971 Constitutional
Convention to incorporate certain provisions into the draft of the new or
revised Constitution. The main issue in these five (5) cases hinges, therefore,
on whether or not the last two (2) requirements have been complied with.
2. Has the contested draft of the new or revised
Constitution been "submitted to the people
for their ratification" conformably to Art.
XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning
"elections" must, also, be taken into account, namely, Section I of Art. V and
Art. X of said Constitution. The former reads:
"Section 1. Suffrage may be exercised by male citizens of the

Philippines not otherwise disqualified by law, who are twenty-one years
of age or over and are able to read and write, and who shall have
resided in the Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding the election. The
National Assembly shall extend the right of suffrage to women, if in a
plebiscite which shall be held for that purpose within two years after
the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively
on the question."
Sections 1 and 2 of Art. X of the Constitution ordain in part:

"Section 1. There shall be an independent Commission
on Elections composed of a Chairman and two other Members to
be appointed by the President with the consent of the Commission
on Appointments, who shall hold office for a term of nine years
and may not be reappointed. . . .
"xxx xxx xxx
"Sec. 2. The Commission on Elections shall have exclusive

charge of the enforcement and administration of all laws relative to the
conduct of elections and shall exercise all other functions which may
be conferred upon it by law. It shall decide, save those involving the
right to vote, all administrative questions, affecting elections, including
the determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials. All
law enforcement agencies and instrumentalities of the Government,
when so required by the Commission, shall act as its deputies for the
purpose of insuring free, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to review by the
Supreme Court.
"xxx xxx xxx." 39
a. Who may vote in a plebiscite under

Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a
limitation upon the exercise of the right of suffrage. They claim that no other
persons than "citizen of the Philippines not otherwise disqualified by law,
who are twenty-one years of age or over and are able to read and write, and
who shall have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the election,"
may exercise the right of suffrage in the Philippines. Upon the other hand,
the Solicitor General contends that said provision merely guarantees the
right of suffrage to persons possessing the aforementioned qualifications
and none of the disqualifications, prescribed by law, and that said right may
be vested by competent authorities in persons lacking some or all of the
aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive nature of
the language — "(s)uffrage may be exercised" — used in Section 1 of Art. V
of the Constitution, and the provisions of the Revised Barrio Charter,
Republic Act No. 3590, particularly Sections 4 and 6 thereof, providing that
citizens of the Philippines "eighteen years of age or over," who are registered
in the list of barrio assembly members, shall be members thereof and may
participate as such in the plebiscites prescribed in said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution declares
who may exercise the right of suffrage, so that those lacking the qualifications
therein prescribed may not exercise such right. This view is borne out by the
records of the Constitutional Convention that drafted the 1935 Constitution.
Indeed, Section 1 of Art. V of the 1935 Constitution was largely based on the
report of the committee on suffrage of the Convention that drafted said
Constitution, which report was, in turn, "strongly influenced by the election laws
then in force in the Philippines . . ." 40 Said committee had recommended: 1)
"That the right of suffrage should be exercised only by male citizens of the
Philippines." 2) "That it should be limited to those who could read and write." 3)
"That the duty to vote should be made obligatory." It appears that the first
recommendation was discussed extensively in the Convention, and that, by
way of compromise, it was eventually agreed to include, in Section 1 of Art. V of
the Constitution, the second sentence thereof imposing upon the National
Assembly, established by the original Constitution — instead of the bicameral
Congress subsequently created by amendment of said Constitution — the duty
to "extend the right of suffrage to women, if in a plebiscite to be held for that
purpose within two years after the adoption of this Constitution, not less than
three hundred thousand women possessing the necessary qualifications shall
vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also, debated
upon rather extensively, after which it was rejected by the Convention. 42
This accounts, in my opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age qualification —
amendments having been proposed to reduce the same to 18 or 20, which
were rejected, and the residence qualification, as well as the
disqualifications to the exercise of the right of suffrage — the second
recommendation limiting the right of suffrage those who could "read and
write" was — in the language of Dr. Jose M. Aruego, one of the Delegates to
said Convention — " readily approved in the Convention without any
dissenting vote," although there was some debate on whether the
Fundamental Law should specify the language or dialect that the voter could
read and write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the
constitutional provision under consideration was meant to be and is a grant
or conferment of a right to persons possessing the qualifications and none of
the disqualifications therein mentioned, which in turn, constitute a limitation
of or restriction to said right, and cannot, accordingly, be dispensed with,
except by constitutional amendment. Obviously, every such constitutional
grant or conferment of a right is necessarily a negation of the authority of
Congress or of any other branch of the Government to deny said right to the
subject of the grant — and, in this sense only, may the same partake of the
nature of a guarantee. But, this does not imply not even remotely, that the
Fundamental Law allows Congress or anybody else to vest in those lacking
the qualifications and having the disqualifications mentioned in the
Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage
responsible for the adoption of Section 1 of Art. V of the Constitution was
"strongly influenced by the election laws then in force in the Philippines."
Our first Election Law was Act 1582, passed on January 9, 1907, which was
partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into
the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and
then in the Administrative Code of 1971 — Act 2711 — as chapter 18
thereof, which, in turn, was amended by Act 3387, approved on December 3,
1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively,
the qualifications for and disqualifications from voting, are quoted below. 44
In all of these legislative acts, the provisions concerning the qualifications of
voters partook of the nature of a grant or recognition of the right of suffrage,
and, hence, of a d e n i a l thereof to those who lacked the requisite
qualifications and possessed any of the statutory disqualifications. In short,
the history of Section 1, Art. V of the Constitution, shows beyond doubt that
the same conferred — not guaranteed — the authority to exercise the right
of suffrage to persons having the qualifications prescribed therein and none
of the disqualifications to be specified in ordinary laws and, by necessary
implication, denied such right to those lacking any of said qualifications or
having any of the aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial amendment"
to said Section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however, did
not materialize on account of the decision of this Court in Tolentino vs.
Commission on Elections, 45 granting the writs of prohibition and injunction
therein applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct
elections, and that the proposed amendment sought to be submitted to a
plebiscite was not even a complete amendment, but a "partial amendment"
of said Section 1, which could be amended further, after its ratification, had
the same taken place, so that the aforementioned partial amendment was,
for legal purposes, no more than a provisional or temporary amendment.
Said partial amendment was predicated upon the generally accepted
contemporary construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of suffrage, without
a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of
barrio assemblies may vote in barrio assembly plebiscites is, to say the least,
a debatable one. Indeed, there seems to be a conflict between the last
paragraph of said Section 6 of Rep. Act No. 3590, 46 pursuant to which the
"majority vote of all the barrio assembly members" (which include all barrio
residents 18 years of age or over, duly registered in the list of barrio
assembly members) is necessary for the approval, in an assembly plebiscite,
of "any budgetary, supplemental appropriations or special tax ordinances,"
whereas, according to the paragraph preceding the penultimate one of said
section, 47 "(a)ll duly registered barrio assembly members qualified to vote"
— who, pursuant to Section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and
residents of the barrio "during the six months immediately preceding
election, duly registered in the list of voters" and "otherwise disqualified . . ."
— just like the provisions of the present and past election codes of the
Philippines and Art. V of the 1935 Constitution — "may vote in the
plebiscite."
I believe, however, that the apparent conflict should be resolved in
favor of the 21-year-old members of the assembly, not only because this
interpretation is in accord with Art. V of the Constitution, but, also, because
provisions of a Constitution — particularly of a written and rigid one, like ours
— are generally accorded a mandatory status — unless the intention to the
contrary is manifest, which is not so as regards said Art. V — for otherwise
they would not have been considered sufficiently important to be included in
the Fundamental Law of the land. 48 Besides, it would be illogical, if not
absurd, to believe that Republic Act No. 3590 requires, for the most
important measures for which it demands — in addition to the favorable
action of the barrio council — the approval of the barrio assembly through a
plebiscite, lesser qualifications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935
Constitution intended Section 1 of Art. V thereof to apply only to elections of
public officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or a revision thereof, or of an entirely new Constitution,
and to permit the legislature to require lesser qualifications for such
ratification, notwithstanding the fact that the subject thereof is much more
important — if not fundamental, such as the basic changes introduced in the
draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which are intended to be in force permanently, or, at least, for
many decades, and to affect the way of life of the nation — and, accordingly
demands greater experience and maturity on the part of the electorate than
that required for the election of public officers, 49 whose average term
ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years,
regardless of whether or not they possessed the other qualifications laid
down in both the Constitution and the present Election Code, 50 and of
whether or not they are disqualified under the provisions of said Constitution
and Code, 51 or those of Republic Act No. 3590, 52 have participated and
voted in the Citizens' Assemblies that have allegedly ratified the new or
revised Constitution drafted by the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of
registered voters 21 years of age or over in the entire Philippines, available
in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states
that 14,976,561 "members of all the Barangays (Citizens Assemblies) voted
for the adoption of the proposed Constitution, as against . . . 743,869 who
voted for its rejection," whereas, on the question whether or not the people
still wanted a plebiscite to be called to ratify the new Constitution, ". . .
14,298,814 answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people who
allegedly voted at the Citizens' Assemblies for exceeded the number of
registered voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies —
and We have more to say on this point in subsequent pages — were
fundamentally irregular, in that persons lacking the qualifications prescribed
in Section 1 of Art. V of the Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid votes of those
less than 21 years of age can be separated or segregated from those of the
qualified voters, the proceedings in the Citizens' Assemblies must be
considered null and void. 53
It has been held that "(t)he power to reject an entire poll . . . should be
exercised . . . in a case where it isimpossible to ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal
votes from the illegal or spurious . . ." 54
In Usman vs. Commission on Elections, et al., 55 We held:
"Several circumstances, defying exact description and dependent

mainly on the factual milieu of the particular controversy, have the
effect of destroying the integrity and authenticity of disputed election
returns and of avoiding their prima facie value and character. If
satisfactorily proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested parties, stamp
the election returns with the indelible mark of falsity and irregularity,
and, consequently, of unreliability, and justify their exclusion from the
canvass."
Then, too, the 1935 Constitution requires "a majority of the votes cast"
for a proposed amendment to the Fundamental Law to be "valid" as part
thereof, and the term "votes cast" has a well-settled meaning.
"The term 'votes cast' . . . was held in Smith vs. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
equivalent of 'ballots cast.'" 56
"The word 'cast' is defined as 'to deposit formally or officially.'" 57
"It seems to us that a vote is cast when a ballot is deposited

indicating a 'choice.' . . . The word 'cast' means 'deposit (a ballot)
formally or officially . . .'
". . . In simple words, we would define a 'vote cast' as the

exercise on a ballot of the choice of the voter on the measure
proposed." 58

In short, said Art. XV envisages — with the term "votes cast" — choices
made on ballots — not orally or by raising hands — by the persons taking
part in plebiscites. This is but natural and logical, for, since the early years of
the American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballots prepared and furnished
by the Government and secrecy in the voting, with the advantage of keeping
records that permit judicial inquiry, when necessary, into the accuracy of the
election returns. And the 1935 Constitution has been so consistently
interpreted in all plebiscites for the ratification or rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the
Citizens' Assemblies was and is null and void ab initio.
b. How should the plebiscite be held?
(COMELEC supervision indispensable;
essential requisites)
Just as essential as compliance with said Art. V of the 1935 Constitution
is that of Art. X thereof, particularly its Sections 1 and 2. Indeed, Section 1
provides that "(t)here shall be an independent Commission on Elections. . . ."
The point to be stressed here is the term "independent." Indeed, why was
the term used?
In the absence of said constitutional provision as to the independence
of the Commission, would it have been dependent upon either Congress or
the Judiciary? The answer must be in the negative, because the functions of
the Commission — "enforcement and administration" of election laws — are
neither legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be
under the "control" of the President, pursuant to Section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it
(the Commission) is an "independent" body. In other words, in amending the
original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said Commission
independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior, through its
Executive Bureau, one of the offices under the supervision and control of
said Department. The same — like other departments of the Executive
Branch of the Government — was, in turn, under the control of the Chief
Executive, before the adoption of the 1935 Constitution, and had been —
until the abolition of said Department, sometime ago — under the control of
the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of
control over the Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in power,
and, hence, to enable the same to perpetuate itself therein. To forestall this
possibility, the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a constitutional body
independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened
by the long term of office of its members — nine (9) years, except those first
appointed 59 — the longest under the Constitution, second only to that of the
Auditor General; 60 by providing that they may not be removed from office
except by impeachment, placing them, in this respect, on the same plane as
the President, the Vice-President, the Justices of the Supreme Court and the
Auditor General; that they may not be reappointed; that their salaries "shall
be neither increased nor diminished during their term of office"; that the
decisions of the Commission "shall be subject to review by the Supreme
Court" only; 61 that "(n)o pardon, parole, or suspension of sentence for the
violation of any election law may be granted without the favorable
recommendation of the Commission"; 62 and that its chairman and members
"shall not, during their continuance in office, engage in the practice of any
profession, or intervene, directly or indirectly, in the management or control
of any private enterprise which in anyway may be affected by the functions
of their office; nor shall they, directly or indirectly, be financially interested
in any contract with the Government or any subdivision or instrumentality
thereof." 63 Thus, the framers of the amendment to the original Constitution
of 1935 endeavored to do everything possible to protect and insure the
independence of each member of the Commission.
With respect to the functions thereof as a body, Section 2 of said Art. X
ordains that "(t)he Commission on Elections shall have exclusive charge of
the enforcement and administration of all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon it
by law." It further provides that the Commission "shall decide, save those
involving the right to vote, all administrative questions, affecting elections,
including the determination of the number and location of polling places, and
the appointment of election inspectors and of other election officials." And,
to forestall possible conflicts or frictions between the Commission, on the
one hand, and the other offices or agencies of the executive department, on
the other, said Section 2 postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the Commission,
shall act as its deputies for the purpose of insuring free, orderly, and honest
elections." Not satisfied with this, it declares, in effect, that "(t)he decisions,
orders, and rulings of the Commission" shall not be subject to review, except
by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the
Constitution, Rep. Act No. 6388, otherwise known as Election Code of 1971,
implements the constitutional powers of the Commission on Elections and
grants additional powers thereto, some of which are enumerated in Sections
5 and 6 of said Act, quoted below. 64 Moreover, said Act contains, inter alia,
detailed provisions regulating contributions and other (corrupt) practices;
the establishment of election precincts; the designation and arrangement of
polling places, including voting booths, to protect the secrecy of the ballot;
the formation of lists of voters, the identification and registration of voters,
the proceedings therefor, as well as for the inclusion in, or exclusion or
cancellation from said list and the publication thereof; the establishment of
municipal, provincial and national files of registered voters; the composition
and appointment of boards of election inspectors; the particulars of the
official ballots to be used and the precautions to be taken to insure the
authenticity thereof; the procedure for the casting of votes; the counting of
votes by boards of inspectors; the rules for the appreciation of ballots and
the preparation and disposition of election returns; the constitution and
operation of municipal, provincial and national boards of canvassers; the
representation of political parties and/or their candidates in each election
precinct; the proclamation of the results, including, in the case of election of
public officers, election contests; and the jurisdiction of courts of justice in
cases of violations of the provisions of said Election Code and penalties for
such violations.
Few laws may be found with such a meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest elections," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the so-
called Barangays or Citizens' Assemblies. And no reasons have been given,
or even sought to be given therefor. In many, if not most, instances, the
elections were held a viva voce, thus depriving the electorate of the right to
vote secretly — one of the most fundamental and critical features of our
election laws from time immemorial — particularly at a time when the same
was of utmost importance, owing to the existence of Martial Law.
I n Glen vs. Gnau, 65 involving the casting of many votes, openly,
without complying with the requirements of the law pertinent thereto, it was
held that the "election officers" involved "cannot be too strongly
condemned" therefor and that if they 'could legally dispense with such
requirement . . . they could with equal propriety dispense with all of them,
including the one that the vote shall be by secret ballot, or even by ballot at
all . . ."
Moreover, upon the formal presentation to the Executive of the
proposed Constitution drafted by the 1971 Constitutional Convention, or on
December 1, 1972, Presidential Decree No. 73 (on the validity of which —
which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases 66 — We need not, in the cases at bar, express any opinion)
was issued, calling a plebiscite, to be held on January 15, 1973, at which the
proposed Constitution would be submitted to the people for ratification or
rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provisions of the Election Code of 1971,
insofar as they are not inconsistent" with said decree — excepting those
"regarding rights and obligations of political parties and candidates" — "shall
apply to the conduct of the plebiscite." Indeed, Section 2 of said Election
Code of 1971 provides that "(a)ll elections of public officers except barrio
officials and plebiscites shall be conducted in the manner provided by this
Code." General Order No. 20, dated January 7, 1973, postponing, until
further notice, "the plebiscite scheduled to be held on January 15, 1973,"
said nothing about the procedure to be followed in the plebiscite to take
place at such notice, and no other order or decree has been brought to Our
attention, expressly or impliedly repealing the provisions of Presidential
Decree No. 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended
"the provisions of Section 3 of Presidential Decree No. 73 insofar as they
allow free public discussion of the proposed Constitution . . . temporarily
suspending the effects of Proclamation No. 1081 for the purposes of free and
open debate on the proposed Constitution. . . ." This specific mention of the
portions of the decrees or orders or instructions suspended by General Order
No. 20 necessarily implies that all other portions of said decrees, orders or
instructions — and, hence, the provisions of Presidential Decree No. 73
outlining the procedure to be followed in the plebiscite for the 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 67 — the Executive declared, inter alia, that the
collective views expressed in the Citizens' Assemblies "shall be considered in
the formulation of national policies or programs and, wherever practicable,
shall be translated into concrete and specific decision"; that such Citizens'
Assemblies "shall consider vital national issues . . . like the holding of the
plebiscite on the new Constitution . . . and others in the future, which shall
serve as guide or basis for action or decision by the national government";
and that the Citizens' Assemblies "shall conduct between January 10 and 15,
1973, a referendum on important national issues, including those specified
in paragraph 2 hereof, and submit the results thereof to the Department of
Local Governments and Community Development immediately thereafter, . .
." As in Presidential Decree No. 86, this Decree No. 86-A does not and cannot
exclude the exercise of the constitutional supervisory power of the
Commission on Elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute the "election" or
plebiscite required in Art. V of the 1935 Constitution. The provision of
Presidential Decree No. 86-A directing the immediate submission of the
result thereof to the Department of Local Governments and Community
Development is not necessarily inconsistent with, and must be subordinate
to the constitutional power of the Commission on Elections to exercise its
"exclusive" authority over the "enforcement and administration of all laws
relative to the conduct of elections," if the proceedings in the Assemblies
would partake of the nature of an "election" or plebiscite for the ratification
or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by
Presidential Decree No. 86-B, dated January 7, 1973, ordering "that
important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 and that the initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention" and that "(t)he Secretary
of the Department of Local Governments and Community Development shall
insure the implementation of this order." As in the case of Presidential
Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily
exclude the exercise of the powers vested by the 1935 Constitution in the
Commission on Elections, even if the Executive had the authority to repeal
Art. X of our Fundamental Law — which he does not possess. Copy of
Presidential Decree No. 86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department
sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the Executive Department, who had been
publicly urged and ostensibly promised to work for the ratification of the
proposed revised Constitution would be favored thereby, owing to the
practically indefinite extension of their respective terms of office in
consequence of Section 9 of the Transitory Provisions, found in Art. XVII of
the proposed Constitution, without any elections therefor. And the procedure
therein mostly followed is such that there is no reasonable means of
checking the accuracy of the returns filed by the officers who conducted said
plebiscites. This is another patent violation of Art. X of the Constitution which
can hardly be sanctioned. And, since the provisions of this article form part
of the fundamental scheme set forth in the 1935 Constitution, as amended,
to insure the "free, orderly, and honest" expression of the people's will, the
aforementioned violation thereof renders null and void the contested
proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the
same are claimed to have ratified the revised Constitution proposed by the
1971 Constitutional Convention. ". . . (a)ll the authorities agree that the legal
definition of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or a selection by those having a right
to participate (in the selection) of those who shall fill the offices, or of the
adoption or rejection of any public measures affecting the territory involved.
15 Cyc. 279; Lewis vs. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders vs.
Haynes, 13 Cal. 145; Seaman vs. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State vs. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170;
Bouvier's Law Dictionary." 68
IV
Has the proposed Constitution
aforementioned been approved by a majority
of the people in the Citizens' Assemblies
allegedly held throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No.
1102, the validity of which is precisely being contested by petitioners herein.
Respondents claim that said proclamation is "conclusive" upon this Court, or
is, at least, entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or adopted by the
"overwhelming" majority of the people; that Art. XV of the 1935 Constitution
has thus been "substantially" complied with; and that the Court should
refrain from passing upon the validity of Proclamation No. 1102, not only
because such question is political in nature, but, also, because should the
Court invalidate the proclamation, the former would, in effect, veto the
action of the people in whom sovereignty resides and from whom its powers
are derived.
The major flaw in this process of rationalization is that it assumes, as a
fact, the very premise on which it is predicated, and which, moreover, is
contested by the petitioners. As the Supreme Court of Minnessota has aptly
put it —
". . . every officer under a constitutional government must
act according to law and subject to its restrictions, and every
departure therefrom or disregard thereof must subject him to the
restraining and controlling power of the people, acting through the
agency of the judiciary; for it must be remembered that the people
act through courts, as well as through the executive or the
Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the
special duty of determining the limitations which the law places
upon all official action. . . . ."
Accordingly, the issue boils down to whether or not the Executive acted
within the limits of his authority when he certified in Proclamation No. 1102
"that the Constitution proposed by the nineteen hundred and seventy-one
(1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into
effect."
In this connection, it is not claimed that the Chief Executive had
personal knowledge of the data he certified in said proclamation. Moreover,
Art. X of the 1935 Constitution was precisely inserted to place beyond the
Executive the power to supervise or even exercise any authority whatsoever
over "all laws relative to the conduct of elections," and, hence, whether the
elections are for the choice or selection of public officers or for the
ratification or rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also, referred to
in said Art. XV as "elections."
The Solicitor General stated, in his argument before this Court, that he
had been informed that there was in each municipality a municipal
association of presidents of the citizens' assemblies for each barrio of the
municipality; that the president of each such municipal association formed
part of a provincial or city association of presidents of such municipal
associations; that the president of each one of these provincial or city
associations in turn formed part of a National Association or Federation of
Presidents of such Provincial or City Associations; and that one Francisco
Cruz from Pasig, Rizal, as President of said National Association or
Federation, reported to the President of the Philippines, in the morning of
January 17, 1973, the total result of the voting in the citizens' assemblies all
over the country from January 10 to January 15, 1973. The Solicitor General
further intimated that the said municipal associations had reported the
results of the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results
of the voting in the province to the Department of Local Governments and
Community Development, which tabulated the results of the voting in the
citizens' assemblies throughout the Philippines and then turned them over to
Mr. Francisco Cruz, as President or acting President of the National
Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of Local
Governments and Community Development) to the Chief Executive, who,
accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of
any barrio council since 1972, 80 that he could not possibly have been a
member on January 17, 1973, of a municipal association of presidents of
barrio or ward citizens' assemblies, much less of a Provincial, City or National
Association or Federation of Presidents of any such provincial or city
associations.
Secondly, at the conclusion of the hearing of these cases on February
16, 1973, and in the resolution of this Court of the same date, the Solicitor
General was asked to submit, together with his notes on his oral argument,
a true copy of the aforementioned report of Mr. Cruz to the President and of
the "(p)roclamation, decree, instruction, order, regulation or circular, if any,
creating or directing or authorizing the creation, establishment or
organization" of said municipal, provincial and national associations, but
neither a copy of said alleged report to the President, nor a copy of any said
"(p)roclamation, decree, instruction, order, regulation or circular," has been
submitted to this Court. In the absence of said report, "(p)roclamation,
decree, instruction," etc., Proclamation No. 1102 is devoid of any factual and
legal foundation. Hence, the conclusion set forth in the dispositive portion of
said Proclamation No. 1102, to the effect that the proposed new or revised
Constitution had been ratified by the majority of the votes cast by the
people, can not possibly have any legal effect or value.
The theory that said proclamation is "conclusive" upon the Court is
clearly untenable. If it were, acts of the Executive and those of Congress
could not possibly be annulled or invalidated by courts of justice. Yet, such is
not the case. In fact, even a resolution of Congress declaring that a given
person has been elected President or Vice-President of the Philippines as
provided in the Constitution 69 is not conclusive upon the courts. It is no
more than prima facie evidence of what is attested to by said resolution. 70 If
assailed directly in appropriate proceedings, such as an election protest, if
and when authorized by law, as it is in the Philippines, the Court may receive
evidence and declare, in accordance therewith, who was duly elected to the
office involved. 71 If prior to the creation of the Presidential Electoral
Tribunal, no such protest could be filed, it was not because the resolution of
Congress declaring those had been elected President or Vice-President was
conclusive upon courts of justice, but because there was no law permitting
the filing of such protest and declaring what court or body would hear and
decide the same. So, too, a declaration to the effect that a given amendment
to the Constitution or revised or new Constitution has been ratified by a
majority of the votes cast therefor, may be duly assailed in court and be the
object of judicial inquiry, in direct proceedings therefor — such as the cases
at bar — and the issue raised therein may and should be decided in
accordance with the evidence presented.
The case of In re McConaughy 72 is squarely in point. "As the
Constitution stood from the organization of the state" — of Minnesota — "all
taxes were required to be raised under the system known as the 'general
property tax.' Dissatisfaction with the results of this method and the
development of more scientific and satisfactory methods of raising venue
induced the Legislature to submit to the people an amendment to the
Constitution which provided merely that taxes shall be uniform upon the
same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it was certified by
the state canvassing board and proclaimed by the Governor as having been
legally adopted. Acting upon the assumption that the amendment had
become a part of the Constitution, the Legislature enacted statutes providing
for a State Tax Commission and a mortgage registry tax, and the latter
statute, upon the same theory, was held constitutional" by said Court. "The
district court found that the amendment had not in fact been adopted, and
on this appeal" the Supreme Court was "required to determine the
correctness of that conclusion."
Referring to the effect of the certification of the State Board of
Canvassers created by the Legislature and of the proclamation made by the
Governor based thereon, the Court held: "It will be noted that this board
does no more than tabulate the reports received from the various county
boards and add up and certify the results. State vs. Mason, 45 Wash. 234, 88
Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election
officers, and canvassing boards are not conclusive and that the final decision
must rest with the courts, unless the law declares that the decisions of the
board shall be final" — and there is no such law in the cases at bar. ". . . The
correctness of the conclusion of the state board rests upon the correctness
of the returns made by the county boards and it is inconceivable that it was
intended that this statement of result should be final and conclusive
regardless of the actual facts. The proclamation of the Governor adds
nothing in the way of conclusiveness to the legal effect of the action of the
canvassing board. Its purpose is to formally notify the people of the state of
the result of the voting as found by the canvassing board. James on Const.
Conv. (4th Ed.) Sec. 523."
In Bott vs. Wartz, 73 the Court reviewed the statement of results of the
election made by the canvassing board, in order that the true results could
be judicially determined. And so did the court in Rice vs. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the
"exclusive" charge of the Commission on Elections, "the enforcement and
administration of all laws relative to the conduct of elections," independently
of the Executive, and there is not even a certification by the Commission in
support of the alleged results of the citizens' assemblies relied upon in
Proclamation No. 1102 — apart from the fact that on January 17, 1973
neither the alleged president of the Federation of Provincial or City
Barangays nor the Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over the
Philippines — it follows necessarily that, from a constitutional and legal
viewpoint, Proclamation No. 1102 is not even prima facie evidence of the
alleged ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as
pointed out in the discussion of the preceding topic, the new or revised
Constitution proposed by the 1971 Constitutional Convention was not ratified
in accordance with the provisions of the 1935 Constitution. In fact, it has not
even been ratified in accordance with said proposed Constitution, the
minimum age requirement therein for the exercise of the right of suffrage
being eighteen (18) years, apart from the fact that Art. VI of the proposed
Constitution requires "secret" voting, which was not observed in many, if not
most, Citizens' Assemblies. Besides, both the 1935 Constitution and the
proposed Constitution require a "majority of the votes cast" in an election or
plebiscite called for the ratification of an amendment or revision of the first
Constitution or the effectivity of the proposed Constitution, and the phrase
"votes cast" has been construed to mean "votes made in writing," not orally,
as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied with,
and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in these
cases, the burden of proving such defense — which, if true, should be within
their peculiar knowledge — is clearly on such respondents. Accordingly, if
despite the extensive notes and documents submitted by the parties herein,
the members of the Court do not know or are not prepared to say whether or
not the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step
would be to give due course to these cases, require the respondents to file
their answers, and the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues
raised thereby. Otherwise, we would be placing upon the petitioners the
burden of disproving a defense set up by the respondents, who have not so
far established the truth of such defense.
Even more important, and decisive, than the foregoing is the
circumstance that there is ample reason to believe that many, if not most, of
the people did not know that the Citizens' Assemblies were, at the time they
were held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter
alia:

"Meanwhile, or on December 17, 1972, the President had issued
an order temporarily suspending the effects of Proclamation No. 1081,
for the purpose of free and open debate on the Proposed Constitution.
On December 23, the President announced the postponement of the
plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing 'that the plebiscite
scheduled to be held on January 15, 1973, he postponed until further
notice.' Said General Order No. 20, moreover, 'suspended in the
meantime' the 'order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open
debate on the proposed Constitution.'
"In view of these events relative to the postponement of the

aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then again, Congress was, pursuant to
the 1935 Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections — the Court deemed it more imperative to
defer its final action on these cases."
And, apparently, the parties in said cases entertained the same belief,
for, on December 23, 1972 — four (4) days after the last hearing of said
cases 76 — the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15, 1973,
after consultation with the Commission on Elections and the leaders of
Congress, owing to doubts on the sufficiency of the time available to
translate the proposed Constitution into some local dialects and to comply
with some pre-electoral requirements, as well as to afford the people a
reasonable opportunity to be posted on the contents and implications of said
transcendental document. On January 7, 1973, General Order No. 20 was
issued formally, postponing said plebiscite "until further notice." How can
said postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10, to January 15,
1973, were "plebiscites," in effect, accelerated, according to the theory of
the Solicitor General, for the ratification of the proposed Constitution? If said
Assemblies were meant to be the plebiscites or elections envisaged in Art.
XV of the Constitution, what, then, was the "plebiscite" postponed by
General Order No. 20? Under these circumstances, it was only reasonable
for the people who attended such assemblies to believe that the same were
not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.

And, this belief is further bolstered up by the questions propounded in
the Citizens' Assemblies, namely:
"[1] Do you like the New Society?
"[2] Do you like the reforms under martial law?
"[3] Do you like Congress again to hold sessions?
"[4] Do you like the plebiscite to be held later?
"[5] Do you like the way President Marcos is running the

affairs of the government? [Bulletin Today, January 10, 1973; additional
question italicized.]
"[6] Do you approve of the citizens assemblies as the base of

popular government to decide issues of national interests?
"[7] Do you approve of the new Constitution?
"[8] Do you want a plebiscite to be called to ratify the new

Constitution?
"[9] Do you want the elections to be held in November, 1973

in accordance with the provisions of the 1935 Constitution?
"[10] If the elections would not be held, when do you want

the next elections to be called?
"[11] Do you want martial law to continue?" [Bulletin Today,

January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not

proper in a plebiscite for the ratification of a proposed Constitution or of a
proposed amendment thereto. Secondly, neither is the language of question
No. 7 — "Do you approve of the new Constitution?" One approves "of" the
act of another which does not need such approval for the effectivity of said
act, which the first person, however, finds to be good, wise or satisfactory.
The approval of the majority of the votes cast in a plebiscite is, however,
essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a
plebiscite, question No. 8 would have been unnecessary and improper,
regardless of whether question No. 7 were answered affirmatively or
negatively. If the majority of the answers to question No. 7 were in the
affirmative, the proposed Constitution would have become effective and no
other plebiscite could be held thereafter in connection therewith, even if the
majority of the answers to question No. 8 were, also, in the affirmative. If the
majority of the answers to question No. 7 were in the negative, neither may
another plebiscite be held, even if the majority of the answers to question
No. 8 were in the affirmative. In either case, not more than one plebiscite
could be held for the ratification or rejection of the proposed Constitution. In
short, the insertion of said two (2) questions — apart from the other
questions adverted to above — indicates strongly that the proceedings
therein did not partake of the nature of a plebiscite or election for the
ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed
Constitution has been approved or adopted by the people in the citizens'
assemblies all over the Philippines, when it is, to my mind, a matter of
judicial knowledge that there have been no such citizens' assemblies in
many parts of Manila and suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January
15, 1973, to the Chief Executive, the former reported:
". . . This report includes a resume (sic) of the activities we

undertook in effecting the referendum on the eleven questions you
wanted our people consulted on and the Summary of Results thereof
for each municipality and for the whole province.
"xxx xxx xxx
". . . Our initial plans and preparations, however, dealt only on

the original five questions. Consequently, when we received an
instruction on January 10 to change the questions, we urgently
suspended all scheduled Citizens Assembly meetings on that day and
called all Mayors, Chiefs of Offices and other government officials to
another conference to discuss with them the new set of guidelines and
materials to be used.
"On January 11, . . . another instruction from the top was

received to include the original five questions among those to be
discussed and asked in the Citizens' Assembly meetings. With this
latest order, we again had to make modifications in our instructions to
all those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province . . . Aside from the
coordinators we had from the Office of the Governor, the splendid
cooperation and support extended by almost all government officials
and employees in the province, particularly of the Department of
Education, PC and PACD personnel, provided us with enough hands to
trouble shoot and implement sudden changes in the instructions
anytime and anywhere needed . . .
". . . As to our people, in general, their enthusiastic participation

showed their preference and readiness to accept this new method of
government to people consultation in shaping up government policies."
Thus, as late as January 10, 1973, the Bataan officials had tosuspend
"all scheduled Citizens' Assembly meetings . . ." and call all available officials
". . . to discuss with them the new set of guidelines and materials to be used
. . ." Then, "on January 11 . . . another instruction from the top was received
to include the original five questions among those to be discussed and asked
in the Citizens' Assembly meetings. With this latest order, we again had to
make modifications in our instructions to all those managing and supervising
the holding of the Citizens' Assembly meetings throughout the province . . .
As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept the new method of government to
people consultation in shaping up government policies."
This communication manifestly shows: 1) that, as late as January 11,
1973, the Bataan officials had still to discuss — not put into operation —
means and ways to carry out the changing instructions from the top on how
to organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the
assemblies would involve no more than consultations or dialogues between
people and government — not decisions to be made by the people; and 3)
that said consultations were aimed only at "shaping up government policies"
and, hence, could not, and did not, partake of the nature of a plebiscite for
the ratification or rejection of a proposed amendment of a new or revised
Constitution, for the latter does not entail the formulation of a policy of the
Government, but the making of a decision by the people on the new way of
life, as a nation, they wish to have, once the proposed Constitution shall
have been ratified.
If this was the situation in Bataan — one of the provinces nearest to Manila —
as late as January 11, 1973, one can easily imagine the predicament of the
local officials and people in the remote barrios in northern and southern Luzon,
in the Bicol region, in the Visayan Islands and Mindanao. In fact, several
members of the Court, including those of their immediate families and their
household, although duly registered voters in the area of Greater Manila, were
not even notified that citizens' assemblies would be held in the places where
their respective residences were located. In the Prohibition and Amendment
case, 77 attention was called to the "duty cast upon the court of taking judicial
cognizance of anything affecting the existence and validity of any law or portion
of the Constitution . . ." In line with its own pronouncement in another case, the
Federal Supreme Court of the United States stressed, in Baker v. Carr, 78 that
"a court is not at liberty to shut its eyes to an obvious mistake, when the
validity of the law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the negative.
V
Have the people acquiesced in the
proposed Constitution?
It is urged that the present Government of the Philippines is now and
has been run, since January 17, 1973, under the Constitution drafted by the
1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign
relations are being conducted under such new or revised Constitution; that
the Legislative Department has recognized the same, and that the people, in
general, have, by their acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government, I gather
that respondents refer mainly to the offices under the Executive
Department. In a sense, the latter performs some functions which, from a
constitutional viewpoint, are political in nature, such as in recognizing a new
state or government, in accepting diplomatic representatives accredited to
our Government, and even in devising administrative means and ways to
better carry into effect Acts of Congress which define the goals or objectives
thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do so,
expressly or impliedly, to the Executive. This, notwithstanding, the political
organ of a government that purports to be republican is essentially the
Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department — specially under a written, rigid
Constitution, with a republican system of Government like ours — the role of
that Department is inherently, basically and fundamentally executive in
nature — to "take care that the laws be faithfully executed," in the language
of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts of the
officers and offices of the Executive Department, in line with Proclamation
No. 1102, connote a recognition thereof or an acquiescence thereto.
Whether they recognized the proposed Constitution or acquiesce thereto or
not is something that cannot legally, much less necessarily or even normally,
be deduced from their acts in accordance therewith, because they are bound
to obey and act in conformity with the orders of the President, under whose
"control" they are, pursuant to the 1935 Constitution. They have absolutely
no other choice, specially in view of Proclamation No. 1081 placing the
Philippines under Martial Law. Besides, by virtue of the very decrees, orders
and instructions issued by the President thereafter, he had assumed all
powers of Government — although some question his authority to do so —
and, consequently, there is hardly anything he has done since the issuance
of Proclamation No. 1102, on January 17, 1973 — declaring that the
Constitution proposed by the 1971 Constitutional Convention has been
ratified by the overwhelming majority of the people — that he could not do
under the authority he claimed to have under Martial Law, since September
21, 1972, except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under the Supreme
Court, and which the President has not ostensibly exercised, except as to
some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in
connection therewith pending final determination of these cases, in which
the effectivity of the aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally
be said to have "recognized" its own acts. Recognition normally connotes the
acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the commands
of a superior officer or office, under whose supervision and control he or it is,
the former merely obeys the latter. Strictly speaking, and from a legal and
constitutional viewpoint, there is no act of recognition involved therein.
Indeed, the lower officer or office, if he or it acted otherwise, would just be
guilty of insubordination.
Thus, for instance, the case of Taylor vs. Commonwealth 80 — cited by
respondents herein in support of the theory of the people's acquiescence —
involved a constitution ordained in 1902 and "proclaimed by a convention
duly called by a direct vote of the people of the state to revise and amend
the Constitution of 1869. The result of the work of that Convention has been
recognized, accepted and acted upon as the only valid Constitution of the
State" by —
1. The "Governor of the State in swearing fidelity to it and
proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the
Convention . . .";
3. The "individual oaths of its members to support it, and by its
having been engaged for nearly a year, in legislating under it and putting its
provisions into operation . . .";
4. The "judiciary in taking the oath prescribed thereby to support it
and by enforcing its provisions . . . "; and
5. The "people in their primary capacity by peacefully accepting it
and acquiescing in it, by registering as voters under it to the extent of
thousands throughout the State, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States."
Note that the New Constitution of Virginia, drafted by a convention
whose members were elected directly by the people, was not submitted to
the people for ratification or rejection thereof. But, it was recognized, not by
the convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature — not merely by individual acts of its members,
but by formal joint resolution of its two (2) chambers; by the judiciary; and
by the people, in the various ways specified above. What is more, there was
no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict
enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the effectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the Government,
and complied with by the people who participated in the elections held
pursuant to the provisions of the new Constitution. In the cases under
consideration, the legality of Presidential Decree No. 73 calling a plebiscite
to be held on January 15, 1973, was impugned as early as December 7,
1972, or five (5) weeks before the scheduled plebiscite, whereas the validity
of Proclamation No. 1102 declaring on January 17, 1973, that the proposed
Constitution had been ratified — despite General Order No. 20, issued on
January 7, 1972, formally and officially suspending the plebiscite until further
notice — was impugned as early as January 20, 1973, when L-36142 was
filed, or three (3) days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of
Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad Interim
Assembly established in the Transitory Provisions of said Constitution.
Individual acts of recognition by members of our legislature, as well as of
other collegiate bodies under the government, are invalid as acts of said
legislature or bodies, unless its members have performed said acts in
session duly assembled, or unless the law provides otherwise, and there is
no such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible reason
has been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the
proposed Constitution, why did it become necessary to padlock its premises
to prevent its meeting in session on January 22, 1973, and thereafter as
provided in the 1935 Constitution? It is true that, theoretically, the members
of Congress, if bent on discharging their functions under said Constitution,
could have met in any other place, the building in which they perform their
duties being immaterial to the legality of their official acts. The force of this
argument is, however, offset or dissipated by the fact that, on or about
December 27, 1972, immediately after a conference between the Executive,
on the one hand, and members of Congress, on the other, some of whom
expressed the wish to meet in session on January 22, 1973, as provided in
the 1935 Constitution, a Daily Express columnist (Primitivo Mijares)
attributed to Presidential Assistant Guillermo de Vega a statement to the
effect that "'certain members of the Senate appear to be missing the point in
issue' when they reportedly insisted on taking up first the question of
convening Congress." The Daily Express of that date, 82 likewise, headlined,
on its front page, a "Senatorial Plot Against — Martial Law Government'
Disclosed." Then, in its issue of December 29, 1972, the same paper imputed
to the Executive an appeal "to diverse groups involved in a conspiracy to
undermine" his powers "under martial law to desist from provoking a
constitutional crisis . . . which may result in the exercise by me of authority I
have not exercised."
No matter how good the intention behind these statements may have
been, the idea implied therein was too clear and ominous for any member of
Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under these
conditions, I do not feel justified in holding that the failure of the members of
Congress to meet since January 22, 1973, was due to their recognition,
acquiescence in or conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I prepared to
declare that the people's inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or
instructions — some or many of which have admittedly had salutary effects
— issued subsequently thereto amounts, constitutes or attests to a
ratification, adoption or approval of said Proclamation No. 1102. In the words
of the Chief Executive, "martial law connotes power of the gun, meant
coercion by the military, and compulsion and intimidation." 83 The failure to
use the gun against those who comply with the orders of the party wielding
the weapon does not detract from the intimidation that Martial Law
necessarily connotes. It may reflect the good, reasonable and wholesome
attitude of the person who has the gun, either pointed at others, without
pulling the trigger, or merely kept in its holster, but not without warning that
he may or would use it if he deemed it necessary. Still, the intimidation is
there, and inaction or obedience of the people, under these conditions, is not
necessarily an act of conformity or acquiescence. This is specially so when
we consider that the masses are, by and large, unfamiliar with the
parliamentary system, the new form of government introduced in the
proposed Constitution, with the particularity that it is not even identical to
that existing in England and other parts of the world, and that even
experienced lawyers and social scientists find it difficult to grasp the full
implications of some provisions incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it
is well to remember that the same refers to a document certified to the
President — for his action under the Constitution — by the Senate President
and the Speaker of the House of Representatives, and attested to by the
Secretary of the Senate and the Secretary of the House of Representatives,
concerning legislative measures approved by the two Houses of Congress.
The argument of the Solicitor General is, roughly, this: If the enrolled bill is
entitled to full faith and credence and, to this extent, it is conclusive upon
the President and the judicial branch of the Government, why should
Proclamation No. 1102 merit less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If,
instead of being certified by the aforementioned officers of Congress, the so-
called enrolled bill were certified by, say, the President of the Association of
Sugar Planters and/or Millers of the Philippines, and the measure in question
were a proposed legislation concerning Sugar Plantations and Mills
sponsored by said Association, which even prepared the draft of said
legislation, as well as lobbied actually for its approval, for which reason the
officers of the Association, particularly, its aforementioned president —
whose honesty and integrity are unquestionable — were present at the
deliberations in Congress when the same approved the proposed legislation,
would the enrolled bill rule apply thereto? Surely, the answer would have to
be in the negative. Why? Simply, because said Association President has
absolutely no official authority to perform in connection therewith, and,
hence, his certification is, legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of
Local Governments and Community Development about the tabulated
results of the voting in the Citizens' Assemblies allegedly held all over the
Philippines — and the records do not show that any such certification, either
to the President of the Philippines or to the President of the Federation or
National Association of presidents of Provincial Associations of presidents of
municipal associations of presidents of barrio or ward assemblies of citizens
— would not, legally and constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not the officer
designated by law to superintend plebiscites or elections held for the
ratification or rejection of a proposed amendment or revision of the
Constitution and, hence, to tabulate the results thereof. Worse still, it is the
officer or department which, according to Article X of the 1935 Constitution,
should not and must not be allowed to participate in said plebiscite — if
plebiscite there was.
After citing approvingly its ruling in United States vs. Sandoval, 84 the
Highest Court of the United States declared that courts "will not stand
impotent before an obvious instance of a manifestly unauthorized exercise
of power." 85
I cannot honestly say, therefore, that the people have impliedly or
expressly indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words must be said
about the procedure followed in these five (5) cases. In this connection, it
should be noted that the Court has not as yet decided whether or not to give
due course to the petitions herein or to require the respondents to answer
thereto. Instead, it has required the respondents to comment on the
respective petitions — with three (3) members of the Court voting to dismiss
them outright — and then considered the comments thus submitted by the
respondents as motions to dismiss, as well as set the same for hearing. This
was due to the transcendental nature of the main issue raised, the necessity
of deciding the same with utmost dispatch, and the main defense set up by
respondents herein, namely, the alleged political nature of said issue,
placing the same, according to respondents, beyond the ambit of judicial
inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions involved,
a reasoned resolution was demanded by public interest. At the same time,
respondents had cautioned against a judicial inquiry into the merits of the
issues posed on account of the magnitude of the evil consequences, it was
claimed, which would result from a decision thereon, if adverse to the
Government.
As a matter of fact, some of those issues had been raised in the
plebiscite cases, which were dismissed as moot and academic, owing to the
issuance of Proclamation No. 1102 subsequently to the filing of said cases,
although before the rendition of judgment therein. Still one of the members
of the Court (Justice Zaldivar) was of the opinion that the aforementioned
issues should be settled in said cases, and he, accordingly, filed an opinion
passing upon the merits thereof. On the other hand, three (3) members of
the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions
favorable to the respondents in the plebiscite cases, Justice Barredo holding
"that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution in force by virtue of Proclamation
1102." 86 When the petitions at bar were filed, the same three (3) members
of the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view,
believing that the main question that arose before the rendition of said
judgment had not been sufficiently discussed and argued as the nature and
importance thereof demanded.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question. Thus,
apart from hearing the parties in oral argument for five (5) consecutive days
— morning and afternoon, or a total of exactly 26 hours and 31 minutes —
their respective counsel filed extensive notes on their oral arguments, as
well as on such additional arguments as they wished to submit, and reply
notes or memoranda, in addition to rejoinders thereto, aside from a sizeable
number of documents in support of their respective contentions, or as
required by the Court. The arguments, oral and written, submitted have
been so extensive and exhaustive, and the documents filed in support
thereof so numerous and bulky, that, for all intents and purposes, the
situation is as if — disregarding forms — the petitions had been given due
course and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same were
being decided on the merits, and they have done so in their individual
opinions attached hereto. Hence, the resume of the votes cast and the tenor
of the resolution, in the last pages hereof, despite the fact that technically
the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ ofmandamus
prayed for against Gil J. Puyat and Jose Roy, as President and President Pro
Tempore respectively of the Senate, it being settled in our jurisdiction, based
upon the theory of separation of powers, that the judiciary will not issue such
writ to the head of a co-equal department, like the aforementioned officers
of the Senate.
In all other respects and with regard to the other respondents in said
case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is
that the petitions therein should be given due course, there being more than
prima facie showing that the proposed Constitution has not been ratified in
accordance with Article XV of the 1935 Constitution, either strictly or
substantially, or has been acquiesced in by the people or a majority thereof;
that said proposed Constitution is not in force and effect; and that the 1935
Constitution is still the Fundamental Law of the Land, without prejudice to
the submission of said proposed Constitution to the people at a plebiscite for
its ratification or rejection in accordance with Articles V, X and XV of the
1935 Constitution and the provisions of the Revised Election Code in force at
the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks
what they might consider to be the demands of "judicial statesmanship,"
whatever may be the meaning of such phrase. I am aware of this possibility,
if not probability; but "judicial statesmanship," though consistent with Rule of
Law, cannot prevail over the latter. Among consistent ends or consistent
values, there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which
would have been very difficult, if not impossible, to accomplish under the old
dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law
and faithful adherence thereto are basic, fundamental and essential parts of
statesmanship itself.
Resumé of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of
their individual opinions and/or concurrences as appended hereto, the writer
will now make, with the concurrence of his colleagues, a resumé or summary
of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views
expressed during the deliberations, it was agreed to synthesize the basic
issues at bar in broad general terms in five questions for purposes of taking
the votes. It was further agreed of course that each member of the Court
would expound in his individual opinion and/or concurrence his own
approach to the stated issues and deal with them and state (or not) his
opinion thereon singly or jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues
herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable,
or political and therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional
Convention been ratified validly (with substantial, if not strict, compliance)
conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution been acquiesced
in (with or without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed
by the members of the Court in their respect opinions and/or concurrences,
are as follows:
1. On the first issue involving the political-question doctrine,
Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six
(6) members of the Court, hold that the issue of the validity of Proclamation
No. 1102 presents a justiciable and non-political question. Justices Makalintal
and Castro did not vote squarely on this question, but, only inferentially, in
their discussion of the second question. Justice Barredo qualified his vote,
stating that "inasmuch as it is claimed that there has been approval by the
people, the Court may inquire into the question of whether or not there has
actually been such an approval, and, in the affirmative, the Court should
keep its hands-off out of respect to the people's will, but, in the negative, the
Court may determine from both factual and legal angles whether or not
Article XV of the 1935 Constitution has been complied with." Justices
Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that
the issue is political and "beyond the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article
XV, Section 1 of the 1935 Constitution, which provides only one way for
ratification, i.e., "in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters." 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not
the 1973 Constitution has been validly ratified pursuant to Article XV, I still
maintain that in the light of traditional concepts regarding the meaning and
intent of said Article, the referendum in the Citizens' Assemblies, specially in
the manner the votes therein were cast, reported and canvassed, falls short
of the requirements thereof. In view, however, of the fact that I have no
means of refusing to recognize as a judge that factually there was voting
and that the majority of the votes were for considering as approved the
1973 Constitution without the necessity of the usual form of plebiscite
followed in past ratifications, I am constrained to hold that, in the political
sense, if not in the orthodox legal sense, the people may be deemed to have
cast their favorable votes in the belief that in doing so they did the part
required of them by Article XV, hence, it may be said that in its political
aspect, which is what counts most, after all, said Article has been
substantially complied with, and, in effect, the 1973 Constitution has been
constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the
Court hold that under their view there has been in effect substantial
compliance with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in
the aforementioned proposed Constitution, no majority vote has been
reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that "the people have already accepted the 1973
Constitution." 88
Two (2) members of the Court, namely, Justice Zaldivar and myself
hold that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in
some American decisions to the effect that independently of the validity of
the ratification, a new Constitution once accepted or acquiesced in by the
people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is
the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law."
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are joined
by Justice Teehankee in their statement that "Under a regime of martial law,
with the free expression of opinions through the usual media vehicles
restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court,
namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra
voted to DISMISS the petition. Justices Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the
final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, and therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
Teehankee and myself voted to deny respondents' motion to dismiss and to
give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is
in force:
Four (4) members of the Court, namely, Justices Barredo,

Makasiar, Antonio and Esguerra hold that it is in force by virtue of the
people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal,

Castro, Fernando and Teehankee cast no vote thereon on the premise
stated in their votes on the third question that they could not state
with judicial certainty whether the people have accepted or not
accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and

myself voted that the Constitution proposed by the 1971 Constitutional
Convention is not in force;
with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4)
dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.
IT IS SO ORDERED.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Concepcion, C.J., dissents.
Zaldivar, J., dissents in line with the personal opinion of the Chief
Justice, and also dissents in a separate opinion.
Fernando, J., dissents in conformity with the personal views of the Chief
Justice, except as to such portions thereof on which he expresses his own
thoughts as set forth in his dissenting opinion.
Teehankee, J., dissents in conformity with the Chief Justice's personal
opinion and files a separate dissent.
ANNEX A
PERTINENT PORTIONS OF THE MINNESSOTA SUPREME COURT DECISION ON
THE CASE
IN RE McCONAUGHY 92
"(a) An examination of the decisions shows that the courts have
almost uniformly exercised the authority to determine the validity of the
proposal, submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton vs. St. Paul, 22 Minn. 400; Rice v.
Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl.
744, 881, 45 L.R.A. 251; State vs. Foraker, 46 Ohio St. 677, 23 N.E. 491; 6
L.R.A. 422; Tecumseh National Bank v. Saunders, 51 Neb. 801, 71 N.W. 779;
Green vs. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134
Fed. 423); whether a proposed amendment is a single amendment, within
the constitutional requirement that every amendment must be separately
submitted (State vs. Powell, 77 Miss. 543, 27 South. 927; Gabbert vs.
Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State vs. Timme, 54 Wis.
318,11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Lobaugh vs. Cook, 127 Iowa, 181, 102 N.W. 1121; People vs. Sours, 31 Colo.
369, 74 Pac. 167, 102 Am. St. Rep. 34; State vs. Board, 34 Mont. 426, 87
Pac. 450; State vs. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the legislative
journals invalidates the amendment (Koehler vs. Hill, 60 Iowa, 543, 14 N.W.
738, 15 N.W. 609; Oakland Paving Co. vs. Hilton, 69 Cal. 479, 11 Pac. 3;
West vs. State, 50 Fla. 154, 39 South. 412; Durfee vs. Harper, 22 Mont. 354,
56 Pac. 582; State vs. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895);
whether the description of the amendment and the form of the ballot are
sufficient (Russell vs. Croy, 164 Mo. 69, 63 S.W. 849; State vs. Winnett
[Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149; Murphy Chair Co. vs. Attorney
General [Mich.] 112 N.W. 127); whether the method of submission is
sufficient (Lovett vs. Ferguson, 10 S.D. 44, 71 N.W. 765; Russell vs. Croy,
164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a
notice relative to it is sufficient (Com. vs. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A. 568; Russell vs. Croy, 164 Mo. 69, 63 S.W. 849); whether the
submission may be as well by resolution as by a legislative act approved by
the executive (Com. vs. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568;
Warfield vs. Vandiver, 101 Md. 78, 60 Atl. 538; Edward vs. Lesueur, 132 Mo.
410, 33 S.W. 1130, 31 L.R.A. 815; Hays vs. Hays, 5 Idaho, 154, 47 Pac. 732;
State vs. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment must be submitted (People vs. Curry, 130 Cal. 82, 62 Pac. 516).
"In Rich vs. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court
said: 'It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise of
political, and not judicial, power. If this be so, it follows that the promulgation
of any purported amendment by the executive or any executive department
is final, and that the action cannot be questioned by the judiciary; but, with
reference to the conditions precedent to submitting a proposed amendment
to a vote of the people, it has been repeatedly held, by courts of the highest
respectability, that it is within the power of the judiciary to inquire into the
question, even in a collateral proceeding. . . . It is to be noted that under
Section 1 of article 20 of the Constitution of the state no amendment can
become a part of the Constitution until ratified by a vote of the people. One
prerequisite is equally as essential as the other. The amendment must first
receive the requisite majority in the Legislature, and afterwards be adopted
by the requisite vote . . . It is the fact of a majority vote which makes the
amendment a part of the Constitution.'
"In considering the cases it is necessary to note whether in the
particular case the court was called upon to determine between rival
governments, or whether the Legislature, or some board or official, had
legally performed the duty imposed by the Constitution or statutes. In State
vs. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General
Assembly, under the power granted by the Constitution, could change the
Constitution only in the manner prescribed by it, and that it was the duty of
the court to determine whether all prerequisites had been complied with. In
Collier vs. Frierson, 24 Ala. 100, it was held that a Constitution can be
changed only by the people in convention or in a mode described by the
Constitution itself, and that if the latter mode is adopted every requisite of
the Constitution must be observed. 'It has been said,' says the court,' that
certain acts are to be done, certain requisitions are to be observed, before a
change can be effected; but to what purpose are these acts required, or
these requisitions enjoined, if the Legislature or any other department of the
government can dispense with them. To do so would be to violate the
instrument which they are sworn to support; and every principle of public law
and sound constitutional policy requires the court to pronounce against
every amendment which is shown not to have been made in accordance
with the rules prescribed by the fundamental law.'
"In State vs. Swift, 69 Ind. 505, it was said that: 'The people of a state
may form an original Constitution, or abrogate an old one and form a new
one, at any time, without any political restriction, except the Constitution of
the United States; but if they undertake to add an amendment, by the
authority of legislation to a Constitution already in existence, they can do it
only by the method pointed out by the Constitution to which the amendment
is added. The power to amend a Constitution by legislative action does not
confer the power to break it, any more than it confers the power to legislate
on any other subject contrary to its prohibitions.' So, in State vs. Timme, 54
Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the
Constitution of the state without a compliance with the provisions thereof,
both in the passage of such amendment by the Legislature and the manner
of submitting it to the people. The courts have not all agreed as to the
strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court
determined judicially whether an amendment to the Constitution had been
legally adopted. After approving the statement quoted from Collier vs.
Frierson, supra, that 'we entertain no doubt that, to change the Constitution
in any other mode than by a convention, every requisite which is demanded
by the instrument itself must be observed, and the omission of any one is
fatal to the amendment,' the court held that, 'as substance of right is
grander and more potent than methods of form,' there had been substantial
compliance with the constitutional requirement that a proposed amendment
to the Constitution must be entered at length on the legislative journal. It
appears that the joint resolution making a submission simply provided that a
proposition should be submitted to the electors at the general election of
1880. It did not declare that the machinery of the general election law
should control, or that any particular officers or board would receive, count,
or canvass the votes cast. But the existing election machinery was adequate,
and the votes were received, counted, and canvassed, and the result
declared as fully as though it had been in terms so ordered. These methods
had been followed in the adoption of previous amendments, and it was held
that, conceding the irregularity of the proceedings of the Legislature and the
doubtful scope of the provisions for the election, yet in view of the very
uncertainty of such provisions, the past legislative history of similar
propositions, the universal prior acquiescence in the same forms of
procedure, and the popular and unchallenged acceptance of the legal
pendency before the people of the question of the amendment for decision,
and in view of the duty cast upon the court of taking judicial knowledge of
anything affecting the existence and validity of any law or portion of the
Constitution, it must be adjudged that the proposed amendment became
part of the Constitution. The effect was to hold that a provision of the
Constitution requiring the proposed amendment to be entered in full on the
journals was directory, and not mandatory. This liberal view was approved in
State vs. Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.) 149, and People vs.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34. But it has not been
universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the learned
court reached the conclusion it did is not based on any sound legal
principles, but contrary to them. Neither the argument nor the conclusion
can command our assent or approval. The argument is illogical, and based
on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the well-considered case of Kadderly vs. Portland, 44
Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of
the court to determine whether, in submitting a proposed amendment to the
people, the Legislature legally observed the constitutional provisions as to
the manner of procedure. In Livermore vs. Waite, 102 Cal. 113, 36 Pac. 424,
25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people a
proposed amendment to the Constitution agreed to by the Legislature on the
ground that the Legislature had not acted in conformity with the Constitution
and that the proposed amendment was of such a character that it could not
properly become a part of the Constitution. The Supreme Court of Colorado,
in People vs. Sours, supra, refused to exercise this authority.
"The entire question received elaborate consideration in Koehler vs.
Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which
concededly had been adopted by the people, had not, before its submission,
been entered in full upon the legislative journals, as required by the
Constitution, and it was held that this was a material variance in both form
and substance from the constitutional requirements, and that the
amendment did not, therefore, become a part of the Constitution. As to the
claim that the question was political, and not judicial, it was said that, while
it is not competent for courts to inquire into the validity of the Constitution
and the form of government under which they themselves exist, and from
which they derive their powers, yet, where the existing Constitution
prescribes a method for its own amendment, an amendment thereto, to be
valid, must be adopted in strict conformity to that method; and it is the duty
of the courts in a proper case, when an amendment does not relate to their
own power or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have been observed,
and, if not, to declare the amendment invalid and of no force. This case was
followed in State vs. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University vs. McIver, 72 N.C. 76, the question whether a proposed
amendment to the Constitution had been legally adopted was treated as a
judicial question. By the Constitution a proposed amendment was required
to be approved by two Legislatures before its submission to the people. In
this instance a bill was passed which contained 17 amendments. The next
Legislature rejected 9 and adopted 8 of these amendments, and submitted
them to the people. The majority of the people voted for their adoption; but
it was contended that the Constitution contemplated and required that the
same bill and the same amendments, without change, should be approved
b y both Legislatures, and that it did not follow that because the second
Legislature adopted separately 8 out of the 17 amendments adopted by the
first Legislature, it would have adopted the 17, or any of them, if they had
been voted upon by the second in the form adopted by the first body. The
substance of the contention was that there had not been a concurrence of
the two Legislatures on the same amendments, according to the letter and
spirit of the Constitution. The court held that the power of the Legislature in
submitting amendments could not be distinguished from the powers of the
convention, and that, as the people had spoken and ratified the
amendments, they became a part of the Constitution.
"In Westinghausen vs. People, 44 Mich. 265, 6 N.W. 641, it was held
that prior to 1876 a proposed amendment to the Constitution could not be
submitted to the people at any other than a general election; but, as the
amendment under consideration had been submitted after the Constitution
had been changed, it had been legally submitted and adopted.
"In State vs. Powell, 77 Miss. 543, 27 South. 927, the question whether
an amendment to the Constitution had been legally submitted and adopted
by the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for
an elective, instead of an appointive, judiciary. It was contended that the
amendments had been improperly submitted, and not adopted by a majority
of the qualified voters voting at the election, as required by the Constitution.
The law did not direct how the result of the election should be determined.
The Legislature by joint resolution recited that the election had been duly
held throughout the state, and, as it appeared from the returns made to the
Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the manner
prescribed by the Constitution, and it did not receive a majority of all the
qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution 'are all for the guidance of the Legislature,
and from the very nature of the thing the Legislature must be the exclusive
judge of all questions to be measured or determined by these rules. Whether
the question be political, and certainly a legislative one, or judicial, to be
determined by the courts, this section of rules, not only of procedure, but of
final judgment as well, confides to the separate magistracy of the legislative
department full power to hear, consider, and adjudge that question. The
Legislature puts the question to the qualified electors. The qualified electors
answer back to the Legislature. "If it shall appear" to the Legislature that its
question has been answered in the affirmative, the amendment is inserted
and made a part of the Constitution. The Governor and the courts have no
authority to speak at any stage of the proceedings between the sovereign
and the Legislature, and when the matter is thus concluded it is closed, and
the judiciary is as powerless to interfere as the executive.' But it was held
that the question whether the proposition submitted to the voters
constituted one, or more than one, amendment, whether the submission was
according to the requirements of the Constitution, and whether the
proposition was in fact adopted, were all judicial, and not political, questions.
'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed
upon us by the Constitution. We could not, if we would, escape the exercise
of that jurisdiction which the Constitution has imposed upon us. In the
particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and
maintain it in its integrity, imposed on us a most difficult and embarrassing
duty, one which we have not sought, but one which, like all others, must be
discharged.'
"In Bott vs. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 46 L.R.A. 251, it
was held that it was the duty of the judicial department of the government to
determine whether the legislative department or its officers had observed
the constitutional injunctions in attempting to amend the Constitution, and to
annul their acts if they had not done so. The case is an interesting and well-
considered one. The Constitution provided the manner in which proposed
amendments should be submitted to the people, but did not provide a
method for canvassing the votes. The Legislature, having agreed to certain
proposed amendments, passed an act for submitting the same to the
people. This statute provided for the transmission to the Secretary of State
of certificates showing the result of the voting throughout the state, and
made it the duty of the Governor at the designated time to summon four or
more Senators, who, with the Governor, should constitute a board of state
canvassers to canvass and estimate the votes for and against each
amendment. This board was to determine and declare which of the proposed
amendments had been adopted and to deliver a statement of the results to
the Secretary of State, and any proposed amendment, which by said
certificate and determination of the board of canvassers shall appear to have
received in its favor the majority of all the votes cast in the state for and
against said proposed amendment, shall from the time of filing such
certificate be and become an amendment to and a part of the Constitution of
the state; and it shall be the duty of the Governor of the state forthwith,
after such a determination, to issue a proclamation declaring which of the
said proposed amendments have been adopted by the people.' This board
was required to file a statement of the result of the election, and the
Governor to issue his proclamation declaring that the amendment had been
adopted and become a part of the Constitution. At the instance of a taxpayer
the Supreme Court allowed a writ of certiorari to remove into the court for
review the statement of the results of the election made by the canvassing
board, in order that it might be judicially determined whether on the facts
shown in that statement the board had legally determined that the proposed
amendment had been adopted. The Supreme Court decided that the
concurrence of the board of state canvassers and the executive department
of the government in their respective official functions placed the subject-
matter beyond the cognizance of the judicial department of the state. The
Court of Appeals, after a full review of the authorities, reversed this decision,
and held that the questions were of a judicial nature, and properly
determinable by the court on their merits. Mr. Justice Dixon, after stating the
facts, said: 'It thus becomes manifest that there was present in the Supreme
Court, and is now pending in this court, every element tending to maintain
jurisdiction over the subject-matter, unless it be true, as insisted, that the
judicial department of the government has not the right to consider whether
the legislative department and its agencies have observed constitutional
injunctions in attempting to amend the Constitution, and to annul their acts
in case that they have not done so. That such a proposition is not true seems
to be indicated by the whole history of jurisprudence in this country.' The
court, after considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in question
was legally submitted and adopted.
"The recent case of Rice vs. Palmer, 78 Ark. 432, 96 S.W. 396,
presented the identical question which we have under consideration. In
reference to the contention that the Constitution intended to delegate to the
Speaker of the House of Representatives the power to determine whether an
amendment had been adopted, and that the question was political, and not
judicial, the court observed: 'This argument has often been made in similar
cases to the courts, and it is found in many dissenting opinions; but, with
probably a few exceptions, it is not found in any prevailing opinion.'
"In State vs. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held
that the constitutional requirement of publication of a proposed
constitutional provision for three months prior to the election at which it is to
be submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."
ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit to them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the
people believe that the submission of the proposed Constitution to the
Citizens Assemblies or Barangays should be taken as a plebiscite in itself in
view of the fact that freedom of debate has always been limited to the
leadership in political, economic and social fields, and that it is now
necessary to bring this down to the level of the people themselves through
the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that the initial
referendum shall include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR

Executive Secretary
MAKALINTAL and CASTRO, JJ., concurring:

The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima facie case in their petitions to
justify their being given due course. Considering on the one hand the
urgency of the matter and on the other hand its transcendental importance,
which suggested the need for hearing the side of the respondents before
that preliminary question was resolved, We required them to submit their
comments on the petitions. After the comments were filed We considered
them as motions to dismiss so that they could be orally argued. As it turned
out, the hearing lasted five days, morning and afternoon, and could not have
been more exhaustive if the petitions had been given due course from the
beginning.
The major thrust of the petitions is that the act of the Citizens
Assemblies as certified and proclaimed by the President on January 17, 1973
(Proclamation No. 1102) was not an act of ratification, let alone a valid one,
of the proposed Constitution, because it was not in accordance with the
existing Constitution (of 1935) and the Election Code of 1971. Other grounds
are relied upon by the petitioners in support of their basic proposition, but to
our mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that
amendments (proposed either by Congress in joint session or by a
Convention called by it for the purpose) "shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification." At
the time that Constitution was approved by the Constitutional Convention on
February 8, 1935, and ratified in a plebiscite held on the following May 14,
the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure
prescribed by statute for ascertaining the people's choices among
candidates for public offices, or their will on important matters submitted to
them, pursuant to law, for approval. It was in this sense that the word was
used by the framers in Article XV (also in Articles VI and VII), and in
accordance with such procedure that plebiscites were held to ratify the very
same Constitution in 1935 as well as the subsequent amendments thereto,
thus: in 1939 (Ordinance appended to the Constitution); 1940
(establishment of a bicameral legislature; eligibility of the President and the
Vice-President for re election: creation of the Commission on Elections);
1947 (Parity Amendment); and 1967 (increase in membership of the House
of Representatives and eligibility of members of Congress to run for the
Constitutional Convention without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials and plebiscites shall be conducted in
the manner provided by this Code." This is a statutory requirement designed,
as were the other election laws previously in force, to carry out the
constitutional mandate relative to the exercise of the right of suffrage, and
with specific reference to the term "plebiscites," the provision of Article XV
regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the
Code is spelled out in other sections thereof. Section 99 requires that
qualified voters be registered in a permanent list, the qualifications being
those set forth in Article V, Section 1, of the 1935 Constitution on the basis
of age (21), literacy and residence. These qualifications are reiterated in
Section 101 of the Election Code. Section 102 enumerates the classes of
persons disqualified to vote. Succeeding sections prescribe the election
paraphernalia to be used, the procedure for registering voters, the records of
registration and the custody thereof, the description and printing of official
ballots, the actual casting of votes and their subsequent counting by the
boards of inspectors, the rules for appreciation of ballots, and then the
canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution,
several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which
had been convened pursuant to Resolution No. 2 passed by Congress on
March 16, 1967, which provides:
"Sec. 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution when
approved by a majority of the votes cast in an election at which
they are submitted to the people for their ratification pursuant to
Article XV of the Constitution."
(2) Article XVII, Section 16, of the draft itself states:
"Sec. 16. This Constitution shall take effect immediately upon
its ratification by a majority of the votes cast in a plebiscite called for
the purpose and, except as herein provided, shall supersede the
Constitution of nineteen hundred and thirty-five and all amendments
thereto."
The same procedure is prescribed in Article XVI, Section 2, for the

ratification of any future amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the Constitutional
Convention on November 30, 1972 the said body adopted Resolution No.
5843, proposing "to President Ferdinand E. Marcos that a decree be issued
calling a plebiscite for the ratification of the proposed New Constitution on
such appropriate date as he shall determine and providing for the necessary
funds therefor." Pursuant to said Resolution the President issued Decree No.
73 on the same day, calling a plebiscite to be held on January 15, 1973, at
which the proposed Constitution "shall be submitted to the people for
ratification or rejection." The Decree had eighteen (18) sections in all,
prescribing in detail the different steps to be taken to carry out the process
of ratification, such as: (a) publication of the proposed Constitution in English
and Pilipino; (b) freedom of information and discussion; (c) registration of
voters: (d) appointment of boards of election inspectors and designation of
watchers in each precinct; (e) printing of official ballots; (f) manner of voting
to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and
(h) in general, compliance with the provisions of the Election Code of 1971,
with the Commission on Elections exercising its constitutional and statutory
powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the
framers of the 1935 Constitution through all the Congresses since then to
the 1971 Constitutional Convention — amendments to the Constitution
should be ratified in only one way, that is, in an election or plebiscite held in
accordance with law and participated in only by qualified and duly registered
voters. Indeed, so concerned was this Court with the importance and
indispensability of complying with the mandate of the (1935) Constitution in
this respect that in the recent case of Tolentino vs. Commission on Elections,
No. L-34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971)
Constitutional Convention submitting a proposed amendment for ratification
to a plebiscite to be held in November 1971 was declared null and void. The
amendment sought to reduce the voting age from twenty-one to eighteen
years and was approved by the Convention for submission to a plebiscite
ahead of and separately from other amendments still being or to be
considered by it, so as to enable the youth to be thus enfranchised to
participate in the plebiscite for the ratification of such other amendments
later. This Court held that such separate submission was violative of Article
XV, Section 1, of the Constitution, which contemplated that "all the
amendments to be proposed by the same Convention must be submitted to
the people in a single 'election' or plebiscite." 93 Thus a grammatical
construction based on a singular, instead of plural, rendition of the word
"election" was considered a sufficient ground to rule out the plebiscite which
had been called to ratify a proposed amendment in accordance with the
procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the
ratification of just one amendment, as in Tolentino vs. COMELEC, but the
ratification of an entire charter setting up a new form of government; and
the issue has arisen not because of a disputed construction of one word or
one provision in the 1935 Constitution but because no election or plebiscite
in accordance with that Constitution and with the Election Code of 1971 was
held for the purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft
Constitution were created by Presidential Decree No. 86 dated December 31,
1972, "to broaden the base of citizen participation in the democratic process
and to afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who
are residents of the barrio, district or ward for at least six months, fifteen
years of age or over, citizens of the Philippines and who are registered in the
lists of Citizen Assembly members kept by the barrio, district or ward
secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the
Assemblies were convened for a referendum between January 10 and 15, to
"consider vital national issues now confronting the country, like the holding
of the plebiscite on the new Constitution, the continuation of martial rule,
the convening of Congress on January 22, 1973, and the holding of elections
in November 1973."
On January 5, 1973 the newspapers came out with a list of four
questions to be submitted to the Citizens Assemblies, the fourth one being
as follows: "How soon would you like the plebiscite on the new Constitution
to be held?" It should be noted in this connection that the President had
previously announced that he had ordered the postponement of the
plebiscite which he had called for January 15, 1973 (Presidential Decree No.
73) for the ratification of the draft Constitution, and that he was considering
two new dates for the purpose — February 19 or March 5; that he had
ordered that the registration of voters (pursuant to Decree No. 73) be
extended to accommodate new voters; and that copies of the new
Constitution would be distributed in eight dialects the people. (Bulletin
Today, December 24, 1972.)
On January 10, 1973 it was reported that one more question would be
added to the original four which were to be submitted to the Citizens
Assemblies. The question concerning the plebiscite was reworded as follows:
"Do yon like the plebiscite to be held later?" The implication, it may likewise
be noted, was that the Assemblies should express their views as to when the
plebiscite should be held, not as to whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions
would be submitted, namely:
"(1) Do you approve of the citizens assemblies as the base of

popular government to decide issues of national interest?
"(2) Do you approve of the new Constitution?
"(3) Do you want a plebiscite to be called to ratify the new

Constitution?
"(4) Do you want the elections to be held in November, 1973

in accordance with the provisions of the 1935 Constitution?
"(5) If the elections would not be held, when do you want the
next elections to be called?
"(6) Do you want martial law to continue?" [Bulletin Today ,

January 11, 1973: italics supplied].
Appended to the six additional questions above quoted were the

suggested answers, thus:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in
government.
QUESTION No. 2
QUESTION No. 3
considered the plebiscite on the New Constitution.
then the new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed
up with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We
want him to exercise his powers with more authority. We
want him to be strong and firm so that he can accomplish all
his reform program and establish normalcy in the country. If
all other measures fail, we want President Marcos to declare
a revolutionary government along the lines of the new
Constitution without the ad interim Assembly."
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the Assemblies
deemed equivalent to ratification. This was done, not in the questionnaire
itself, but in the suggested answer to question No. 3. Strangely, however, it
was not similarly suggested that an unfavorable vote be considered as
rejection.
There should be no serious dispute as to the fact that the manner in
which the voting was conducted in the Citizens' Assemblies, assuming that
such voting was held, was not within the intendment of Article XV, Section 1,
of the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite
contemplated in Section 2 of said Code and in Article XVII, Section 16, of the
draft Constitution itself, or as the election intended by Congress when it
passed Resolution No. 2 on March 16, 1967 calling a Convention for the
revision of the 1935 Constitution. The Citizens Assemblies were not limited
to qualified, let alone registered, voters, but included all citizens from the
age of fifteen, and regardless of whether or not they were illiterates, feeble-
minded, or ex-convicts 94 — these being the classes of persons expressly
disqualified from voting by Section 102 of the Election Code. In short, the
constitutional and statutory qualifications were not considered in the
determination of who should participate. No official ballots were used in the
voting; it was done mostly by acclamation or open show of hands. Secrecy,
which is one of the essential features of the election process, was not
therefore observed. No set of rules for counting the votes or of tabulating
them and reporting the figures was prescribed or followed. The Commission
on Elections, which is the constitutional body charged with the enforcement
and administration of all laws relative to the conduct of elections, took no
part at all, either by way of supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102
the overwhelming majority of all the members of the Citizens Assemblies
had voted for the adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the 1935 Constitution
and with the Election Code of 1971. The suggestion misses the point
entirely. It is of the essence of a valid exercise of the right of suffrage that
not only must a majority or plurality of the voters carry the day but that the
same must be duly ascertained in accordance with the procedure prescribed
by law. In other words the very existence of such majority or plurality
depends upon the manner of its ascertainment, and to conclude that it exists
even if it has not been ascertained according to law is simply to beg the
issue, or to assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions of the
Election Law as long as it is certified that a majority of the citizens had voted
favorably or adversely on whatever it was that was submitted to them to
vote upon.
However, a finding that the ratification of the draft Constitution by the
Citizens Assemblies, as certified by the President in Proclamation No. 1102,
was not in accordance with the constitutional and statutory procedure laid
down for the purpose does not quite resolve the questions raised in these
cases. Such a finding, in our opinion, is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire into. It imports
nothing more than a simple reading and application of the pertinent
provisions of the 1935 Constitution, of the Election Code and of other related
laws and official acts. No question of wisdom or of policy is involved. But
from this finding it does not necessarily follow that this Court may justifiably
declare that the Constitution has not become. effective, and for that reason
give due course to these petitions or grant the writs herein prayed for. The
effectivity of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases, to resolve which considerations
other than judicial, and therefore beyond the competence of this Court, are
relevant and unavoidable.
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process adopted by
the Citizens Assemblies and on that premise would have this Court grant the
reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government,
challenge the jurisdiction of this Court on the ground that the questions
raised in the petitions are political and therefore non-justiciable, and that in
any case popular acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution against interposition
of the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-
36165) in their respective capacities as President and President Pro-Tempore
of the Senate of the Philippines, and through their counsel, Senator Arturo
Tolentino, likewise invoke the political-question doctrine, but on a ground
not concurred in by the Solicitor General, namely, that "the approval of the
1973 Constitution by the people was made under a revolutionary
government, in the course of a successful political revolution, which was
converted by act of the people to the present de jure government under the
1973 Constitution."
Heretofore, constitutional disputes which have come before this Court
for adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of the
entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The
process employed was one of interpretation and synthesis. In the cases at
bar there is no such assumption: the Constitution (1935) has been derogated
and its continued existence as well as the validity of the act of derogation is
the issue. The legal problem posed by the situation is aggravated by the fact
that the political arms of the Government — the Executive Departments and
the two Houses of Congress — have accepted the new Constitution as
effective: the former by organizing themselves and discharging their
functions under it, and the latter by convening on January 22, 1973 or at any
time thereafter, as ordained by the 1935 Constitution, and in the case of a
majority of the members by expressing their option to serve in the Interim
National Assembly in accordance with Article XII, Section 2, of the 1973
Constitution. 95
The theory advanced by Senator Tolentino, as counsel for respondents
Puyat and Roy, may be taken up and restated at some length if only because
it would constitute, if sustained, the most convenient ground for the
invocation of the political-question doctrine. In support of his theory, Senator
Tolentino contends that after President Marcos declared martial law on
September 21, 1972 (Proclamation No. 1081) he established a revolutionary
government when he issued General Order No. 1 the next day, wherein he
proclaimed "that I shall govern the nation and direct the operation of the
entire government, including all its agencies and instrumentalities, in my
capacity, and shall exercise all the powers and prerogatives appurtenant and
incident to my position as such Commander-in-Chief of all the Armed Forces
of the Philippines." By this order, it is pointed out, the Commander-in-Chief of
the Armed Forces assumed all the powers of government — executive,
legislative, and judicial; and thereafter proceeded to exercise such powers
by a series of Orders and Decrees which amounted to legislative enactments
not justified under martial law and, in some instances, trenched upon the
domain of the judiciary, by removing from its jurisdiction certain classes of
cases, such as "those involving the validity, legality, or constitutionality of
Proclamation No. 1081, or of any decree, order or act issued, promulgated or
performed by me or by my duly designated representative pursuant
thereto." (General Order No. 3 as amended by General Order No. 3-A, dated
September 24, 1972.) The ratification by the Citizens Assemblies, it is
averred, was the culminating act of the revolution, which thereupon
converted the government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the
1973 Constitution and that such ratification as well as the establishment of
the government thereunder formed part of a revolution, albeit peaceful, then
the issue of whether or not that Constitution has become effective and, as a
necessary corollary, whether or not the government legitimately functions
under it instead of under the 1935 Constitution, is political and therefore
non-judicial in nature. Under such a postulate what the people did in the
Citizens Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be
the least doubt that their act would be political and not subject to judicial
review but only to the judgment of the same body politic that is the people.
This concept of what is a political act, in the context just set forth, is based
on realities. If a new government gains authority and dominance through
force, it can be effectively challenged only by a stronger force; no judicial
dictum can prevail against it. We do not see that the situation would be any
different, as far as the doctrine of judicial review is concerned, if no force
had been resorted to and the people, in defiance of the existing Constitution
but peacefully because of the absence of any appreciable opposition,
ordained a new Constitution and succeeded in having the government
operate under it. Against such a reality there can be no adequate judicial
relief; and so courts forbear to take cognizance of the question but leave it to
be decided through political means.
The logic of the political-question doctrine is illustrated in a statement
of the U.S. Supreme Court in a case 96 relied upon, curiously enough, by the
Solicitor General, who disagrees with the revolutionary-government theory
of Senator Tolentino. The case involved the issue of which of two opposing
governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before
the courts of the State, which uniformly held that the inquiry belonged to the
political power and not to the judicial. Commenting on the ruling thus arrived
at, the U.S. Supreme Court said: "And if a State court should enter upon the
inquiry proposed in this case, and should come to the conclusion that the
government under which it acted had been put aside and displaced by an
opposing government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook to try. If it
decides at all as a court, it necessarily affirms the existence and authority of
the government under which it is exercising judicial power." In other words,
since the court would have no choice but to decide in one way alone in order
to be able to decide at all, the question could not be considered proper for
judicial determination.
It should be noted that the above statement from Luther vs. Borden
would be applicable in the cases at bar only on the premise that the
ratification of the Constitution was a revolutionary act and that the
government now functioning under it is the product of such revolution.
However, we are not prepared to agree that the premise is justified.
In the first place, with specific reference to the questioned ratification,
several significant circumstances may be noted. (1) The Citizens Assemblies
were created, according to Presidential Decree No. 86, "to broaden the base
of citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose
consultation with the people." (3) The question, as submitted to them on the
particular point at issue here, was "Do you approve of the Constitution?" (4)
President Marcos, in proclaiming that the Constitution had been ratified,
stated as follows: "(S)ince the referendum results show that more than
ninety-five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng mga
Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people." (5) There was not enough
time for the Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were submitted to
them. In fact the plebiscite planned for January 15, 1973 under Presidential
Decree No. 73 had been postponed to an indefinite date, the reasons for the
postponement being, as attributed to the President in the newspapers, that
"there was little time to campaign for or against ratification" (Daily Express,
Dec. 22, 1972); that he would base his decision (as to the date of the
plebiscite) on the compliance by the Commission (on Elections) on the
publication requirement of the new Charter and on the position taken by
national leaders" (Daily Express, Dec. 23, 1972); and that "the
postponement would give us more time to debate on the merits of the
Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that
the Citizens Assemblies could not have understood the referendum to be for
the ratification of the Constitution, but only for the expression of their views
on a consultative basis. Indeed, if the expression of those views had been
intended as an act of ratification (or of rejection as a logical corollary) —
there would have been no need for the Katipunan ng mga Barangay to
recommend that the Constitution should already be deemed ratified, for
recommendation imports recognition of some higher authority in whom the
final decision rests.
But then the President, pursuant to such recommendation, did proclaim
that the Constitution had been ratified and had come into effect. The more
relevant consideration, therefore, as far as we can see, should be as to what
the President had in mind in convening the Citizens Assemblies, submitting
the Constitution to them and proclaiming that the favorable expression of
their views was an act of ratification. In this respect subjective factors, which
defy judicial analysis and adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we
find no need to consider whether or not the regime established by President
Marcos since he declared martial law and under which the new Constitution
was submitted to the Citizens Assemblies was a revolutionary one. The
pivotal question is rather whether or not the effectivity of the said
Constitution by virtue of Presidential Proclamation No. 1102, upon the
recommendation of the Katipunan ng mga Barangay, was intended to be
definite and irrevocable, regardless of non-compliance with the pertinent
constitutional and statutory provisions prescribing the procedure for
ratification. We must confess that after considering all the available evidence
and all the relevant circumstances we have found no reasonably reliable
answer to the question. On one hand we read, for instance, the following
public statements of the President:
Speaking about the proclamation of martial law, he said:
"I reiterate what I have said in the past: there is no turning back
for our people.
"We have committed ourselves to this revolution. We have

pledged to it our future, our fortunes, our lives, our destiny. We have
burned our bridges behind us. Let no man misunderstand the strength
of our resolution." (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17,
1973, President said the following, among other things:
". . . We can, perhaps delimit the power of the people to speak on

legal matters, on justiciable matters, on matters that may come before
the experts and interpreters of the law. But we cannot disqualify the
people from speaking on what we and the people consider purely
political matters especially those that affect the fundamental law of the
land.
". . . The political questions that were presented to the people are
exactly those that refer to the form of government which the people
want . . . The implications of disregarding the people's will are too
awesome to be even considered. For if any power in government
should even dare to disregard the people's will there would be valid
ground for revolt."
". . . Let it be known to everybody that the people have spoken

and they will no longer tolerate any attempt to undermine the stability
of their Republic; they will rise up in arms not in revolt against the
Republic but in protection of the Republic which they have installed. It
is quite clear when the people say, we ratify the Constitution, that they
mean they will not discard, the Constitution."
On January 19, 1973 the Daily Express published a statement of the

President made the day before, from which the following portion is quoted:
". . . the times are too grave and the stakes too high for us to
permit the customary concessions to traditional democratic process to
hold back our people's clear and unequivocal resolve and mandate to
meet and overcome the extraordinary challenges presented by these
extraordinary times."
On the same occasion of the signing of Proclamation No. 1102 the

President made pointed reference to "the demand of some of our citizens . .
. that when all other measures should fail, that the President be directed to
organize and establish a Revolutionary Government," but in the next breath
added: ". . . if we do ratify the Constitution how can we speak of a
Revolutionary Government? They cannot be compatible . . ." "(I)t is my
feeling," he said, "that the Citizens' Assemblies which submitted this
recommendation merely sought to articulate their impatience with the status
quo that has brought about anarchy, confusion and misery to the masses . .
." The only alternatives which the President clearly implied by the foregoing
statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary,
in his opinion, because precisely the Constitution had been ratified. The third
obvious alternative was entirely ruled out, namely, a return to the 1935
Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear: rather
than return to such status quo, he would need the recommendation of the
Citizens' Assemblies to establish a revolutionary government, because that
would be the only other way to carry out the reforms he had envisioned and
initiated — reforms which, in all fairness and honesty, must be given credit
for the improved quality of life in its many aspects, except only in the field of
civil liberties.
If there is any significance, both explicit and implicit, and certainly
unmistakable, in the foregoing pronouncements, it is that the step taken in
connection with the ratification of the Constitution was meant to be
irreversible, and that nothing anyone could say would make the least
difference. And if this is a correct and accurate assessment of the situation,
then we would say that since it has been brought about by political action
and is now maintained by the government that is in undisputed authority
and dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in
terms, President Marcos has professed fealty to the Constitution. In "Today's
Revolution: Democracy" he says:
"I believe, therefore, in the necessity of Revolution as an

instrument of individual and social change . . . but that in a democratic
society, revolution is of necessity, constitutional, peaceful, and legal."
In his TV address of September 23, 1972, President Marcos told the

nation:
"I have proclaimed martial law in accordance with the powers

vested in the President by the Constitution of the Philippines.
"xxx xxx xxx
"I repeat, this is not a military takeover of civil government

functions. The Government of the Republic of the Philippines which was
established by our people in 1946 continues.
"xxx xxx xxx
"I assure you that I am utilizing this power vested in me by the

Constitution to save the Republic and reform our society . . .
"I have had to use this constitutional power in order that we may
not completely lose the civil rights and freedom which we cherish . . .
". . . We are against the wall. We must now defend the Republic
with the stronger powers of the Constitution."

(Vital Documents, pp. 1-12; italics supplied)
In the report of an interview granted by the President to the Newsweek

Magazine (published in the issue of January 29, 1973), the following appears:
"xxx xxx xxx
"Q. Now that you have gotten off the constitutional track,
won't you be in serious trouble if you run into critical
problems with your programs?
"A. I have never gotten off the constitutional track. Everything
I am doing is in accordance with the 1930 Constitution. The
only thing is that instead of 18-year-old voting, we have
allowed 15-year-old the right to vote. But the 15-year-old of
today are high-school students, if not graduates, and they
are better informed than my contemporaries at that age. On
the matter of whether it is constitutional to proclaim martial
law, it is constitutional because the Constitution provides for
it in the event of invasion, insurrection, rebellion or
immediate danger thereof. We may quarrel about whether
what we have gone through is sufficient cause to proclaim
martial law but at the very least there is a danger of
rebellion because so many of our soldiers have been killed.
You must remember this (martial law provision) was lifted
from the American legislation that was the fundamental law
of our country.
"xxx xxx xxx"
In the light of this seeming ambivalence, the choice of what course of
action to pursue belongs to the President. We have earlier made reference to
subjective factors on which this Court, to our mind, is in no position to pass
judgment. Among them is the President's own assessment of the will of the
people as expressed through the Citizens Assemblies and of the importance
of the 1973 Constitution to the successful implementation of the social and
economic reforms he has started or envisioned. If he should decide that
there is no turning back, that what the people recommended through the
Citizens Assemblies, as they were reported to him, demanded that the action
he took pursuant thereto be final and irrevocable, then judicial review is out
of the question.
In articulating our view that the procedure of ratification that was
followed was not in accordance with the 1935 Constitution and related
statutes, we have discharged our sworn duty as we conceive it to be. The
President should now perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a consideration, if only to
dispel any cloud of doubt that may now and in the future shroud the nation's
Charter.
In the deliberations of this Court one of the issues formulated for
resolution is whether or not the new Constitution, since its submission to the
Citizens Assemblies, has found acceptance among the people, such issue
being related to the political-question theory propounded by the
respondents. We have not tarried on the point at all since we find no reliable
basis on which to form a judgment. Under a regime of martial law, with the
free expression of opinions through the usual media vehicles restricted, we
have no means of knowing, to the point of judicial certainty, whether the
people have accepted the Constitution. In any event, we do not find the
issue decisive insofar as our vote in these cases is concerned. To interpret
the Constitution — that is judicial. That the Constitution should be deemed in
effect because of popular acquiescence — that is political, and therefore
beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
Makalintal and Ruiz Castro, JJ., concur.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more
than mere reiterations of the Supplemental Petitions filed by Counsel
Lorenzo M. Tañada on January 15, 1973 in the so-called Plebiscite Cases
decided by this Court on January 22, 1973. Of course, there are
amplifications of some of the grounds previously alleged and in the course of
the unprecedented five-day hearing that was held from February 12 to 16
last, more extensive and illuminating arguments were heard by Us, but, in
my estimation, and with due recognition of the sincerity, brilliance and
eloquence of counsels, nothing more cogent and compelling than what had
already been previously presented by Counsel Tañada is before Us now.
Accordingly, I cannot see any reason why I should change the position I took
in regard to the earlier cases. I reiterate, therefore, the vote I cast when
these petitions were initially considered by the Court namely, to dismiss
them.
In view, however, of the transcendental importance of the issues
before the Court and the significance to our people and in history of the
individual stands of the members of the Court in relation to said issues and
to the final outcome of these cases, and considering that I reserved before
the filing of a more extended opinion, I will take this opportunity to explain
further why I hold that the 1973 Constitution is already in force, if only to
clarify that apart from the people's right of revolution to which I made
pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens
Assemblies held on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly as a political
act than as a purely legal one, with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in
the form followed in the previous ratification plebiscites in 1935 of the
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947
of the parity amendments and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid
ratification substantially in compliance with the basic intent of Article XV of
the 1935 Constitution. If indeed this explanation may be considered as a
modification of my rationalization then, I wish to emphasize that my position
as to the fundamental issue regarding the enforceability of the new
Constitution is even firmer now than ever before. As I shall elucidate anon,
paramount considerations of national import have led me to the conviction
that the best interests of all concerned would be best served by the Supreme
Court holding that the 1973 Constitution is now in force, not necessarily as a
consequence of the revolutionary concept previously suggested by me, but
upon the ground that as a political, more than as a legal, act of the people,
the result of the referendum may be construed as a compliance with the
substantiality of Article XV of the 1935 Constitution.
I
The facts that gave rise to these proceedings are historical and well
known. Generally, they may be taken judicial notice of. They revolve around
the purported ratification of the Constitution of 1973 declared in
Proclamation 1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent
assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were elected
in accordance with the implementing law, Republic Act 6132, on November
10, 1970. Known as the Constitutional Convention of 1971, the assembly
began its sessions on June 1, 1971. After encountering a lot of difficulties,
due to bitter rivalries over important positions and committees and an
incomprehensible fear of overconcentrating powers in their officers, the
delegates went about their work in comparatively slow pace, and by the
third quarter of 1972 had finished deliberations and second-reading voting
only on an insignificant number of proposals — until September 21, 1972,
when the President, not altogether unexpectedly, yet abruptly, issued
Proclamation 1081 declaring martial law throughout the country. An attempt
was made to have the Convention recessed until after the lifting of martial
law, and not long after the motion of Delegate Kalaw to such effect was
turned down, the activities within the assembly shifted to high gear. As if
unmindful of the arrest and continued detention of several of its members,
the convention gathered swift momentum in its work, and on November 30,
1972, it approved by overwhelming vote the draft of a complete constitution,
instead of mere specific amendments of particular portions of the
Constitution of 1935. Needless to say, before martial law was declared, there
was full and unlimited coverage of the workings in the convention by the
mass media. At the same time, public debates and discussions on various
aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had approved
Resolution No. 5843 proposing "to President Ferdinand E. Marcos that a
decree be issued calling a plebiscite for the ratification of the proposed new
Constitution on such appropriate date as he shall determine and providing
for the necessary funds therefor." Acting under this authority, on December
1, 1972, the President issued Presidential Decree No. 73 submitting the draft
constitution for ratification by the people at a plebiscite set for January 15,
1973. This order contained provisions more or less similar to the plebiscite
laws passed by Congress relative to the past plebiscites held in connection
with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No.
17 was issued ordering and enjoining the authorities to allow and encourage
public and free discussions on the proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the President ordered the
suspension of the effects of martial law and lifted the suspension of the
privilege of the writ of habeas corpus insofar as activities connected with the
ratification of the draft constitution were concerned. These two orders were
not, however, to last very long. On January 7, 1973, the President, invoking
information related to him that the area of public debate and discussion he
had opened by his previous orders was being taken advantage of by
subversive elements to defeat the purposes for which they were issued and
to foment public confusion, withdrew said orders and enjoined full and
stricter implementation of martial law.
In the meantime, the President had issued on December 31, 1972
Presidential Decree No. 86 creating Citizens Assemblies "so as to afford
ample opportunities for the citizenry to express their views on important
national issues" and one of the questions presented to said assemblies was:
"Do you like the plebiscite on the proposed Constitution to be held later" So,
in the same order of January 7, 1973, General Order No. 20, the President
ordered, "that the plebiscite scheduled to be held on January 15, 1973, be
postponed until further notice."
In the meanwhile also, on January 5, 1973, the President issued
Presidential Decree No. 86-A providing as follows:
"PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES )
WHEREAS, on the basis of preliminary and initial reports
from the field as gathered from barangays (citizens assemblies)
that have so far been established, the people would like to decide
for themselves questions or issues, both local and national,
affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the
people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that
they be given legal status and due recognition as constituting the
genuine, legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to
conduct immediately a referendum on certain specified questions
such as the ratification of the new Constitution, continuance of
martial law, the convening of Congress on January 22, 1973, and
the elections in November 1973 pursuant to the 1935 Constitution.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me by the
constitution as Commander-in-Chief of all Armed Forces of the
Philippines, do hereby declare as part of the law of the land the
following:
1. The present barangays (citizens assemblies) are
created under Presidential Decree No. 86 dated December 31,
1972, shall constitute the base for citizen participation in
governmental affairs and their collective views shall be considered
in the formulation of national policies or programs and, wherever
practicable, shall be translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider
vital national issues now confronting the country, like the holding
of the plebiscite on the new Constitution, the continuation of
martial rule, the convening of Congress on January 22, 1973, and
the holding of elections in November 1973, and others in the
future, which shall serve as guide or basis for action or decision by
the national government;
3. The barangays (citizens assemblies) shall conduct
between January 10 and 15, 1973, a referendum on important
national issues, including those specified in paragraph 2 hereof,
and submit the results thereof to the Department of Local
Governments and Community Development immediately
thereafter, pursuant to the express will of the people as reflected
in the reports gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the
year of Our Lord, nineteen hundred and seventy three."
And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
"PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential
Decree No. 86 dated December 31, 1972, the Barangays (Citizens
Assemblies) have petitioned the Office of the President to submit
to them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned
refers to the ratification of the Constitution proposed by the 1971
Constitutional Convention;
"WHEREAS, on the basis of the said petitions, it is evident
that the people believe that the submission of the proposed
Constitution to the Citizens Assemblies or Barangays should be
taken as a plebiscite in itself in view of the fact that freedom of
debate has always been limited to the leadership in political,
economic and social fields, and that it is now necessary to bring
this down to the level of the people themselves through the
Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of
Constitution, do hereby order that important national issues shall
from time to time be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree
No. 86-A dated January 5, 1973 and that the initial referendum
shall include the matter of ratification of the Constitution proposed
by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this
Order.
Done in the City of Manila, this 7th day of January in the year
of Our Lord, nineteen hundred and seventy-three."
And so it was that by January 10, 1973, when the Citizens Assemblies
thus created started the referendum which was held from said date to
January 15, 1973, the following questions were submitted to them:
"(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
"(3) Do you like Congress again to hold sessions?
"(4) Do you like the plebiscite to be held later?
"(5) Do you like the way President Marcos is running the
affairs of the government?."
but on January 11, 1973, six questions were added as follows:
"(1) Do you approve of the citizens assemblies as the
base of popular government to decide issues of national interests?
(2) Do you approve of the new Constitution ?
(3) Do you want a plebiscite to be called to ratify the new
Constitution?
"(4) Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935 Constitution?
"(5) If the elections would not be held, when do you want
the next elections to be called?
"(6) Do you want martial law to continue?"
It is not seriously denied that together with the questions, the voters
were furnished "comments" on the said questions more or less suggestive of
the answer desired. It may be assumed that the said "comments" came from
official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
"COMMENTS ON
QUESTION No. 2
QUESTION No. 3
considered the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution,
then the new Constitution should be deemed ratified "
The Solicitor General claims, and there seems to be no showing
otherwise, that the results of the referendum were determined in the
following manner:
"Thereafter, the results of the voting were collated and sent
to the Department of Local Governments. The transmission of the
results was made by telegram, telephone, the provincial
government SSB System in each province connecting all towns;
the SSB communication of the PACD connecting most provinces;
the Department of Public Information Network System; the
Weather Bureau Communication System connecting provincial
capitals and the National Civil Defense Network connecting all
provincial capitals. The certificates of results were then flown to
Manila to confirm the previous figures received by the
aforementioned means of transmission. The certificates of results
tallied with the previous figures taken with the exception of few
cases of clerical errors.
"The Department adopted a system of regionalizing the
receiving section of the Citizens Assemblies operation at the
Department wherein the identity of the barrio and the province
was immediately given to a staff in charge of each region. Every
afternoon at 2:00 o'clock, the 11 regions submitted the figures
they received from the field to the central committee to tabulate
the returns. The last figures were tabulated at 12 midnight of
January 16, 1973 and early morning of January 17, 1973 and were
then communicated to the President by the Department of Local
Governments."
The development culminated in the issuance by the President of
Proclamation 1102 on January 17, 1973. Said proclamation reads:
"PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY
THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE
1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 6, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at
least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were established
precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the
citizenry to express their views on important national issues;
WHEREAS, responding to the clamor of the people and
pursuant to Presidential Decree No. 86-A, dated January 5, 1973,
the following questions were posed before Citizens' Assemblies or
Barangays: Do you approve of the New Constitution? Do you still
want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty one (14,976,561) members of all the
Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty nine (743,869) who voted for its
rejection; while on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight thousand
eight hundred fourteen (14,298,814) answered that there was no
need for a plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more
than ninety-five (95) percent of the members of the Barangays
(Citizens Assemblies) are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino
people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelmingly
majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines, and
IN WITNESS WHEREOF, I have hereunto set my hand and
caused the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the
year of Our Lord, nineteen hundred and seventy-three."
The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which were
filed by different petitioners during the first half of December 1972. 97 Their
common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them
moot and academic insofar as they referred exclusively to the said
Presidential Decree began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also
above-quoted, was issued and the six additional questions which were first
publicized on January 11, 1973 were known, together with the "comments",
petitioners sensed that a new and unorthodox procedure was being adopted
to secure approval by the people of the new Constitution, hence Counsel
Tañada, not being satisfied with the fate of his urgent motion for early
decision of the above ten cases dated January 12, 1973, filed on January 15,
1973, his supplemental motion seeking the prohibition against and injunction
of the proceedings going on. Principal objective was to prevent that the
President be furnished the report of the results of the referendum and
thereby disable him from carrying out what petitioners were apprehensively
foreseeing would be done — the issuance of some kind of proclamation,
order or decree, declaring that the new Constitution had been ratified.
Reacting swiftly, the Court resolved on the same day, January 15, which was
Monday, to consider the supplemental motion as a supplemental petition
and to require the respondents to answer the same the next Wednesday,
January 17th, before the hour of the hearing of the petition which set for
9:30 o'clock in the morning of that day. The details of what happened that
morning form part of the recital of facts in the decision rendered by this
Court in the ten cases on January 22, 1973 and need not be repeated here.
Suffice it to state now that before the hearing could be closed and while
Counsel Tañada was still insisting on his payer for preliminary injunction or
restraining order, the Secretary of Justice arrived and personally handed to
the Chief Justice a copy of Proclamation 1102 which had been issued at
about 11:00 o'clock that same morning. In other words, the valiant and
persistent efforts of petitioners and their counsels were overtaken by
adverse developments, and in the mind of the majority of the members of
the Court, the cases had become academic. For my part, I took the view that
even on the basis of the supplemental petition and the answer thereto filed
by respondents, the Court could already decide on the fundamental issue of
the validity of Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra
also believed, inasmuch as Counsel Tañada's pleading and argument had
anticipated its issuance, but the majority felt it was not ready to resolve the
matter, for lack, according to them, of full ventilation, and so, the decision
reserved to petitioners the filing of the "appropriate" cases, evidently, the
present ones.
II
At the threshold, I find myself confronted by a matter which, although
believed to be inconsequential by my learned brethren, I strongly feel needs
special attention. I refer to the point raised by Counsel Arturo M. Tolentino
for respondents Gil J. Puyat and Jose Roy, who have been sued as President
and President Pro Tempore of the Senate, to the effect that the change in the
composition of the Supreme Court provided for in the 1973 Constitution,
from the 11-man tribunal under the 1935 Constitution to a 15-man Court,
makes of these cases which were filed after January 17, 1973, the date when
Proclamation 1102 declared the new Constitution as ratified, political in
nature and beyond our jurisdiction. The main consideration submitted in this
connection is that inasmuch as the number of votes needed for a decision of
this Court has been increased from six to eight in ordinary cases and from
eight to ten for the declaration of unconstitutionality of a treaty, executive
agreement 98 or law, the Court would have to resolve first as a prejudicial
question whether the Court is acting in these cases as the 15-man or the 11-
man Court, in which event, it would be faced with the dilemma that if it acts
either as the former or as the latter, it would be prejudging the very matter
in issue one way or the other, and, in effect, it would be choosing between
two constitutions, which is a political determination not within the Court's
competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily preclude
this Court from taking a definite stand on whether the Court is acting in
these cases as the 15-man or the 11-man Court. I feel very strongly that the
issue should not be ignored or dodged, if only to make the world know that
the Supreme Court of the Philippines is never incognizant of the capacity in
which it is acting, much less lacking in courage or wisdom to resolve an issue
that relates directly to its own composition. What a disgrace it would be to
admit that this Supreme Court does not know, to use a common apt
expression, whether it is fish or fowl. Withal, scholars and researchers who
might go over our records in the future will inevitably examine minutely how
each of us voted and upon what considerations we have individually acted,
and, indeed, doubts may arise as to whether or not, despite the general
result we might announce, there had been the requisite number of votes for
a valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man Court,
only six votes would suffice to declare Proclamation 1102 ineffective, and if
upon analysis of our respective opinions it should be inferable therefrom
that six of us have considered the matter before the Court as justiciable and
at the same time have found the procedure of ratification adopted in
Presidential Decrees 86-A and 86-B and related orders of the President as
not being in conformity with Article XV of the old Constitution, a cloud would
exist as to the efficacy of the dispositive portion of Our decision dismissing
these cases, even if we have it understood that by the vote of six justices in
favor of such dismissal, We intended to mean that the implementation or
enforcement of the new Constitution now being done could continue
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation, and as a
member of the Supreme Court, the last thing I should knowingly
countenance is uncertainty as to the juridical significance of any decision of
the Court which is precisely being looked upon as the haven in which doubts
are supposed to be authoritatively dispelled. Besides, from the very nature
of things, one thing is indubitably beyond dispute — we cannot act in both
capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitutions can be
considered by Us as both in force. Our inescapable duty is to make a choice
between them, according to what law and other considerations inherent to
our function dictate. I cannot bear the thought that someone may someday
say that the Supreme Court of the Philippines once decided a case without
knowing the basis of its authority to act or that it was ever wanting in judicial
courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by
my sense of duty and propriety to straighten out this grave issue touching
on the capacity in which the Court is acting in these cases, I hold that we
have no alternative but to adopt in the present situation the orthodox rule
that when the validity of an act or law is challenged as being repugnant to a
constitutional mandate, the same is allowed to have effect until the Supreme
Court rules that it is unconstitutional. Stated differently, We have to proceed
on the assumption that the new Constitution is in force and that We are
acting in these present cases as the 15-man Supreme Court provided for
therein. Contrary to counsel's contention, there is here no prejudgment for
or against any of the two constitutions. The truth of the matter is simply that
in the normal and logical conduct of governmental activities, it is neither
practical nor wise to defer the course of any action until after the courts
have ascertained their legality, not only because if that were to be the rule,
the functioning of government would correspondingly be undesirably
hesitative and cumbersome, but more importantly, because the courts must
at the first instance accord due respect to the acts of the other departments,
as otherwise, the smooth running of the government would have to depend
entirely on the unanimity of opinions among all its departments, which is
hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole
interpreter, which is contrary to all norms of juridical and political thinking.
To my knowledge, there is yet no country in the world that has recognized
judicial supremacy as its basic governmental principle, no matter how
desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our
acting on the assumption that this Court is still functioning under the 1935
Constitution. It is undeniable that the whole government, including the
provincial, municipal and barrio units and not excluding the lower courts up
to the Court of Appeals, is operating under the 1973 Constitution. Almost
daily, presidential orders and decrees of the most legislative character
affecting practically every aspect of governmental and private activity as
well as the relations between the government and the citizenry are pouring
out from Malacañang under the authority of said Constitution. On the other
hand, taxes are being exacted and penalties in connection therewith are
being imposed under said orders and decrees. Obligations have been
contracted and business and industrial plans have been and are being
projected pursuant to them. Displacements of public officials and employees
in big numbers are going on in obedience to them. For the ten justices of the
Supreme Court to constitute an island of resistance in the midst of these
developments, which even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and complicated
consequences such a position entails in the internal workings within the
judiciary amount its different components, what with the lower courts
considering such orders and decrees as forming part of the law of the land in
making their orders and decisions, whereas the Supreme Court is holding, as
it were, their effectivity at bay if it is not being indifferent to or ignoring
them.
It is suggested that the President, being a man of law, is committed to
abide by the decision of the Supreme Court, and if the Court feels that it
cannot in the meantime consider the enforcement of the new Constitution,
he can wait for its decision. Accepting the truth of this assertion, it does not
necessarily follow that by this attitude of the President, he considers the
Supreme Court as still operating under the Old Constitution. Quite on the
contrary, it is a fact that he has given instructions for the payment of the
justices in accordance with the rate fixed in the New Constitution. Not only
that, his official alter ego, the Secretary of Justice, has been shoving to this
Court, since January 18, 1973, all matters related to the administrative
supervision of the lower courts which by the new charter has been
transferred from the Department of Justice to the Supreme Court, and as far
as I know, the President has not countermanded the Secretary's steps in that
direction. That, on the other hand, the President has not augmented the
justices of the Court to complete the prescribed number of fifteen is, in my
appraisal, of no consequence, considering that with the presence of ten
justices who are in the Court now, there is a working quorum, and the
addition of new justices cannot in anyway affect the voting on the
constitutional questions now before Us because, while there are sufficient
justices to declare by their unanimous vote the illegality of Proclamation
1102, the votes of the justices to be added would only be committed to
upholding the same, since they cannot by any standard be expected to vote
against the legality of the very Constitution under which they would be
appointed.
Moreover, what makes the premise of presumptive validity preferable
and, even imperative, is that We are dealing here with a whole constitution
that radically modifies or alters not only the form of our government from
presidential to parliamentary but also other constitutionally based
institutions vitally affecting all levels of society. It is, to my mind, unrealistic
to insist on that, fundamentally, the 1973 Constitution is the same 1935
Constitution, with a few improvements. A cursory perusal of the former
should convince anyone that it is in essence a new one. While it does retain
republicanism as the basic governmental tenet, the institutional changes
introduced thereby are rather radical and its social orientation is decidedly
more socialistic, just as its nationalistic features are somewhat different in
certain respects. One cannot but note that the change embraces practically
every part of the old charter, from its preamble down to its amending and
effectivity clauses, involving as they do the statement of general principles,
the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and
responsibilities not only of citizens but also of officers of the government and
the provisions on the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the general provisions.
What is more, the transitory provisions notably depart from traditional and
orthodox views in that, in general, the powers of government during the
interim period are more or less concentrated in the President, to the extent
that the continuation or discontinuance of what is now practically a one-
man-rule, is even left to his discretion. Notably, the express ratification of all
proclamations, orders, decrees and acts previously issued or done by the
President, obviously meant to encompass those issued during martial law, is
a commitment to the concept of martial law powers being implemented by
President Marcos, in defiance of traditional views and prevailing
jurisprudence, to the effect that the Executive's power of legislation during a
regime of martial law is all inclusive and is not limited to the matters
demanded by military necessity. In other words, the new constitution unlike
any other constitution countenances the institution by the executive of
reforms which normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII
which provides that this constitution shall "supersede the Constitution of
nineteen hundred and thirty-five and all amendments thereto" and (2) its
transitory provisions expressly continue the effectivity of existing laws,
offices and courts as well as the tenure of all incumbent officials, not
adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "
(T)he incumbent members of the Judiciary (which include the Chief Justice
and Associate Justices of the Supreme Court) may continue in office (under
the new constitution) until they reach the age of seventy years, etc." By
virtue of the presumptive validity of the new charter, all of Us form part of
the 15-man-Court provided for therein and, correspondingly, We have in
legal contemplation, ceased in the meanwhile to be members of the 11 man
Court in the 1935 new Constitution. Should the Court finally decide that the
new Constitution is invalid, then We would automatically revert to our
positions in the 11-man Court, otherwise, We would just continue to be in our
membership in the 15-man Court, unless We feel We cannot in conscience
accept the legality of its existence. On the other hand, if it is assumed that
We are still the 11-man Court and it happens that Our collective decision is
in favor of the new constitution, it would be problematical for any dissenting
justice to consider himself as included automatically in the 15-man Court,
since that would be tantamount to accepting a position he does not honestly
believe exists.
III
In brief, the main contention of the petitioners is that Proclamation
1102 is invalid because the ratification of the 1973 Constitution it purports to
declare as having taken place as a result of the referendum above-referred
to is ineffective. Since it cannot be said on the basis of the said referendum
that said Constitution has been "approved by a majority of the votes cast at
an election" in the manner prescribed by Article XV of the Constitution of
1935. More specifically, they maintain that the word "election" in the said
Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no
other form of ratification can be considered contemplated by the framers of
the Old Constitution than that which had been followed in 1935, 1937, 1939,
1940, 1946 and 1967, the last three or four of which were held under the
supervision of the Commission on Elections. Furthermore, they emphatically
deny the veracity of the proclaimed results of the referendum because,
according to them the referendum was a farce and its results were
manufactured or prefabricated, considering that Mr. Francisco Cruz, who is
supposed to have submitted the final report to the President, which served
as basis for Proclamation 1102, had no official authority to render the same,
and it is inconceivable and humanly impossible for anyone to have been able
to gather, tabulate and canvass the 15 million votes allegedly reported
within the short period of time employed. Of course, they also contend that
in any event, there was no proper submission because martial law per se
creates constructive duress which deprives the voters of the complete
freedom needed for the exercise of their right of choice and actually, there
was neither time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for
the respondents is that the matter raised in the petitions is a political one
which the courts are not supposed to inquire into, and, anyway, there has
been a substantial compliance with Article XV of the 1935 Constitution,
inasmuch as, disregarding unessential matters of form, the undeniable fact
is that the voting in the referendum resulted in the approval by the people of
the New Constitution.
I need not dwell at length on these variant positions of the parties. In
my separate opinion in the Plebiscite Cases, I already made the observation
that in view of the lack of solemnity and regularity in the voting as well as in
the manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been
complied with, albeit I held that nonetheless, the Constitution of 1973 is
already in force. In order, however, to make myself clearer on some relevant
points, I would like to add a few considerations to what I have already said in
the former cases.
In my opinion in those cases, the most important point I took into
account was that in the face of the Presidential certification through
Proclamation 1102 itself that the New Constitution has been approved by a
majority of the people and having in mind facts of general knowledge which I
have taken judicial notice of, I am in no position to deny that the result of
the referendum was as the President had stated. I can believe that the
figures referred to in the proclamation may not be accurate, but I cannot say
in conscience that all of them are manufactured or prefabricated, simply
because I saw with my own eyes that people did actually gather and listen to
discussions, if brief and inadequate for those who are not abreast of current
events and general occurrences, and that they did vote. I believe I can safely
say that what I have seen have also been seen by many others throughout
the country and unless it can be assumed, which honestly, I do not believe to
be possible, that in fact there were actually no meetings held and no voting
done in more places than those wherein there were such meetings and
votings, I am not prepared to discredit entirely the declaration that there
was voting and that the majority of the votes were in favor of the New
Constitution. If in fact there were substantially less than 14 million votes of
approval, the real figure, in my estimate, could still be significant enough
and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the
referendum among the Citizens Assemblies was to be in the nature merely of
a loose consultation and not an outright submission for purposes of
ratification. I can see that at the outset, when the first set of questions was
released, such may have been the idea. It must not be lost sight of, however,
that if the newspaper reports are to be believed, and I say this only because
petitioners would consider the newspapers as the official gazettes of the
administration, the last set of six questions were included precisely because
the reaction to the idea of mere consultation was that the people wanted
greater direct participation, thru the Citizens Assemblies, in decision-making
regarding matters of vital national interest. Thus, looking at things more
understandingly and realistically, the two questions emphasized by counsel,
namely, (1) Do you approve of the New Constitution? and (2) Do you want a
plebiscite to be called to ratify the new Constitution? should be considered
no longer as loose consultations but as direct inquiries about the desire of
the voters regarding the matters mentioned. Accordingly, I take it that if the
majority had expressed disapproval of the new Constitution, the logical
consequence would have been the complete abandonment of the idea of
holding any plebiscite at all. On the other hand, it is very plain to see that
since the majority has already approved the new Constitution, a plebiscite
would be superfluous. Clear as these rationalizations may be, it must have
been thought that if the holding of a plebiscite was to be abandoned, there
should be a direct and expressed desire of the people to such effect in order
to forestall as much as possible any serious controversy regarding the non-
holding of the plebiscite required by the letter of Section 16 of Article XVII,
the effectivity clause, of the new Constitution. Oddly enough, the
"comments" accompanying the questions do strongly suggest this view. And
as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New
Constitution? capital is being made of the point that as so framed, the thrust
of the said question does not seek an answer of fact but of opinion. It is
argued that it would have been factual were it worded categorically thus —
Do you approve the New Constitution? The contention would have been
weighty were it not unrealistic. I remember distinctly that the observation
regarding the construction of the subject question was not originally made
by any of the talented counsels for petitioners. It came from Mr. Justice Fred
Ruiz Castro whose mastery of the English language can rightly be the cause
of envy of even professors of English. None of the other members of the
Court, as far as I can recall, ever noticed how the said question is phrased, or
if anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and learned
counsels nor any member of the Court understood the said question
otherwise than calling for a factual answer instead of a mere opinion, how
could anyone expect the millions of unlettered members of the Citizens
Assemblies to have noticed the point brought out by Justice Castro? Truth to
tell, I myself did not realize the difference until Justice Castro gave it
emphasis. Besides, reading the question in the light of the accompanying
"comment" corresponding to it in particular, I am certain that any one who
answered the same understood it in no other sense than a direct inquiry as
to whether or not, as a matter of fact, he approves the New Constitution, and
naturally, his affirmative answer must be taken as a categorical vote of
approval thereof, considering, particularly, that according to the reported
result of the referendum said answer was even coupled with the request that
the President defer the convening of the Interim National Assembly.
It is also contended that because of this reference in the answer to that
question to the deferment of the convening of the interim assembly, the said
answer is at best a conditional approval not proper nor acceptable for
purposes of a ratification plebiscite. The contention has no basis. In the
interest of accuracy, the additional answer proposed in the pertinent
"comment" reads as follows: "But we do not want the Ad Interim Assembly to
be convoked etc." On the assumption that the actual answer, as reported,
was of similar tenor, it is not fair to ascribe to it the imposition of a condition.
At the most, the intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that after martial
law was declared, the circumstances surrounding the making of the
Constitution acquired a different and more meaningful aspect, namely, the
formation of a new society. From the point of view of the President and on
the basis of intelligence reports available to him, the only way to meet the
situation created by the subversive elements was to introduce immediately
effective reforms calculated to redeem the people from the depth of
retrogression and stagnation caused by rampant graft and corruption in high
places, influence peddling, oligarchic political practices, private armies,
anarchy, deteriorating conditions of peace and order, the social inequalities
widening the gap between the rich and the poor, and many other deplorable
long standing maladies crying for early relief and solution. Definitely, as in
the case of the rebellious movement that threatened the Quirino
Administration, the remedy was far from using bullets alone. If a constitution
was to be approved as an effective instrument towards the eradication of
such grave problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past
obstructed rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident objective in having a new
constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these
considerations in mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as evidence of
corruption of the will of those who attended the assemblies, but actually,
they may also be viewed in the same light as the sample ballots commonly
resorted to in the elections of officials, which no one can contend are per se
means of coercion. Let us not forget that the times are abnormal, and
prolonged dialogue and exchange of ideas are not generally possible, nor
practical, considering the need for faster decisions and more resolute action.
After all voting on a whole new constitution is different from voting on one,
two or three specific proposed amendments, the former calls for nothing
more than a collective view of all the provisions of the whole charter, for
necessarily, one has to take the good together with the bad in it. It is rare for
anyone to reject a constitution only because of a few specific objectionable
features, no matter how substantial, considering the ever present possibility
that after all it may be cured by subsequent amendment. Accordingly, there
was need to indicate to the people the paths open to them in their quest for
the betterment of their conditions, and as long as it is not shown that those
who did not agree to the suggestions in the "comments" were actually
compelled to vote against their will, I am not convinced that the existence of
said "comments" should make any appreciable difference in the Court's
appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during
martial law detracts somehow from the value that the referendum would
otherwise have had. As I intimated, however, in my former opinion, it is not
fair to condemn and disregard the result of the referendum barely because
of martial law per se. For one thing, many of the objectionable features of
martial law have not actually materialized, if only because the
implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed wishes
of the President that the same be made "Philippine style", which means
without the rigor that has attended it in other lands and other times.
Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects
on the area of information which should be open to a voter, in its real sense
what "chills" his freedom of choice and mars his exercise of discretion is the
suspension of the privilege of the writ of habeas corpus. The reason is simply
that a man may freely and correctly vote even if the needed information he
possesses as to the candidates or issues being voted upon is more or less
incomplete, but when he is subject to arrest and detention without
investigation and without being informed of the cause thereof, that is
something else which may actually cause him to cast a captive vote. Thus it
is the suspension of the writ of habeas corpus accompanying martial law
that can cause possible restraint on the freedom of choice in an election held
during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ
o f habeas corpus has never produced any chilling effect upon the voters,
since it is known by all that only those who run afoul of the law, saving
inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in
the elections of 1951 and 1971, held while the privilege of writ of habeas
corpus was under suspension, the Filipino voters gave the then opposition
parties overwhelming if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to
show that the result of the referendum may be considered as sufficient basis
for declaring that the New Constitution has been ratified in accordance with
the amending clause of the 1935 Constitution. I reiterate that in point of law,
I find neither strict nor substantial compliance. The foregoing discussion is
only to counter, if I may, certain impressions regarding the general
conditions obtaining during and in relation to the referendum which could
have in one way or another affected the exercise of the freedom of choice
and the use of discretion by the members of the Citizens Assemblies, to the
end that as far as the same conditions may be relevant in my subsequent
discussions of the acceptance by the people of the New Constitution they
may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been
accepted or adopted by the people. And on this premise, my considered
opinion is that the Court may no longer decide these cases on the basis of
purely legal considerations. Factors which are non-legal but nevertheless
ponderous and compelling cannot be ignored, for their relevancy is inherent
in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding
that the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon
by petitioners are to this effect. In view, however, of the factual background
of the cases at bar which include ratification itself, it is necessary for me to
point out that when it comes to ratification, I am persuaded that there
should be a boundary beyond which the competence of the courts no longer
has any reason for being, because the other side is exclusively political
territory reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by
the people. Others may feel there is not enough indication of such
acceptance in the record and in the circumstances the Court can take
judicial notice of. For my part, I consider it unnecessary to be strictly judicial
in inquiring into such fact. Being personally aware, as I have already stated,
that the Citizens Assemblies did meet and vote, if irregularly and crudely, it
is not for me to resort, for the purposes of these cases, to judicial tape and
measure, to find out with absolute precision the veracity of the total number
of votes actually cast. After all, the claims that upon a comparison of
conflicting reports, cases of excess votes may be found, even if extrapolated
will not, as far as I can figure out, suffice to overcome the outcome officially
announced. Rather than try to form a conclusion out of the raw evidence
before Us which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it must
not be overlooked that, after all, their having been accepted and adopted by
the President, based on official reports submitted to him in due course of the
performance of duty of appropriate subordinate officials, has elevated them
to the category of an act of a coordinate department of the government
which under the principle of separation of powers is clothed with
presumptive correctness or at least entitled to a high degree of acceptability,
until overcome by better evidence, which in these cases does not exist. In
any event, considering that due to the unorthodoxy of the procedure
adopted and the difficulty of an accurate checking of all the figures, I am
unable to conceive of any manageable means of acquiring information upon
which to predicate a denial, I have no alternative but to rely on what has
been officially declared. At this point, I would venture to express the feeling
that if it were not generally conceded that there has been sufficient showing
of the acceptance in question, by this time, there would have been already
demonstrative and significant indications of a rather widespread, if not
organized resistance in one form or another. Much as they are to be given
due recognition as magnificent manifestations of loyalty and devotion to
principles, I cannot accord to the filing of these cases as indicative enough of
the general attitude of the people.
It is true that in the opinion I had the privilege of penning for the Court
i n Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution of
1935, to be valid, must appear to have been made in strict conformity with
the requirements of Article XV thereof. What is more, that decision asserted
judicial competence to inquire into the matter of compliance or non-
compliance as a justiciable matter. I still believe in the correctness of those
views and I would even add that I sincerely feel it reflects the spirit of the
said constitutional provision. Without trying to strain any point, however, I
submit the following considerations in the context of the peculiar
circumstances of the cases now at bar, which are entirely different from
those in the backdrop of the Tolentino rulings I have referred to:
1. Consider that in the present case what is involved is not just an
amendment of a particular provision of an existing Constitution; here, it is,
as I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy,
who was himself the petitioner in the case I have just referred to is, now
inviting Our attention to the exact language of Article XV and suggesting
that the said Article may be strictly applied to proposed amendments but
may hardly govern the ratification of a new Constitution. It is particularly
stressed that the Article specifically refers to nothing else but "amendments
to this Constitution" which if ratified "shall be valid as part of this
Constitution." Indeed, how can a whole new constitution be by any manner
of reasoning an amendment to any other constitution and how can it, if
ratified, form part of such other constitution? In fact, in the Tolentino case I
already somehow hinted this point, when I made reference in the resolution
denying the motion for reconsideration to the fact that Article XV must be
followed "as long as any amendment is formulated and submitted under the
aegis of the present Charter." Said resolution even added. "(T)his is not to
say that the people may not, in the exercise of their inherent revolutionary
powers, amend the Constitution or promulgate an entirely new one
otherwise."
It is not strange at all to think that the amending clause of a
constitution should be confined in its application only to proposed changes
in any part of the same constitution itself, for the very fact that a new
constitution is being adopted implies a general intent to put aside the whole
of the old one, and what would be really incongruous is the idea that in such
an eventuality, the new Constitution would subject its going into effect to
any provision of the constitution it is to supersede, to use the language
precisely of Section 16, Article XVII, the effectivity clause, of the New
Constitution. My understanding is that generally, constitutions are self-born,
they very rarely, if at all, come into being, by virtue of any provision of
another constitution. 99 This must be the reason why every constitution has
its own effectivity clause, so that if, the Constitutional Convention had only
anticipated the idea of the referendum and provided for such a method to be
used in the ratification of the New Constitution, I would have had serious
doubts as to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede the
existing one, we cannot but take into consideration the forces and the
circumstances dictating the replacement. From the very nature of things, the
proposal to ordain a new constitution must be viewed as the most eloquent
expression of a people's resolute determination to bring about a massive
change of the existing order, a meaningful transformation of the old society
and a responsive reformation of the contemporary institutions and
principles. Accordingly, should any question arise as to its effectivity and
there is some reasonable indication that the new charter has already
received in one way or another the sanction of the people, I would hold that
the better rule is for the courts to defer to the people's judgment, so long as
they are convinced of the fact of their approval, regardless of the form by
which it is expressed, provided it be reasonably feasible and reliable.
Otherwise stated, in such instances, the courts should not bother about
inquiring into compliance with technical requisites, and as a matter of policy
should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great
relevancy. I refer to the ostensible reaction of the component elements, both
collective and individual, of the Congress of the Philippines. Neither the
Senate nor the House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they were supposed
to do under the Constitution of 1935 on January 22, 1973 for the regular
session. It must be assumed that being composed of experienced,
knowledgeable and courageous members, it would not have been difficult for
said parliamentary bodies to have conceived some ingenious way of giving
evidence of their determined adherence to the Constitution under which
they were elected. Frankly, much as I admire the efforts of the handful of
senators who had their picture taken in front of the padlocked portals of the
Senate chamber, I do not feel warranted to accord such act as enough token
of resistance. As counsel Tolentino has informed the court, there was noting
to stop the senators and the congressmen to meet in any other convenient
place and somehow officially organize themselves in a way that can logically
be considered as a session, even if nothing were done than to merely call
the roll and disperse. Counsel Tolentino even pointed out that if there were
not enough members to form a quorum, any smaller group could have
ordered the arrest of the absent members. And with particular relevance to
the present cases, it was not constitutionally indispensable for the presiding
officers to issue any call to the members to convene, hence the present
prayers for mandamus have no legal and factual bases. And to top it all,
quite to the contrary, the records of the Commission on Elections show that
at least 15 of 24 senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing exercised the option
given to them to join the Interim National Assembly under the New
Constitution, thereby manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three
great departments of the government under the 1935 Constitution, two, the
Executive and the Legislative, have already accepted the New Constitution
and recognized its enforceability and enforcement, I cannot see how this
Supreme Court can by judicial fiat hold back the political developments
taking place and for the sake of being the guardian of the Constitution and
the defender of its integrity and supremacy make its judicial power prevail
against the decision of those who were duly chosen by the people to be their
authorized spokesmen and representatives. It is not alone the physical
futility of such a gesture that concerns me. More than that, there is the stark
reality that the Senators and the Congressmen, no less than the President,
have taken the same oath of loyalty to the Constitution that we, the Justices,
have taken and they are, therefore, equally bound with Us to preserve and
protect the Constitution. If as the elected representatives of the people, they
have already opted to accept the New Constitution as the more effective
instrument for the fulfillment of the national destiny, I really wonder if there
is even any idealistic worth in Our desperately clinging by Ourselves alone to
Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared
objectives of the new dispensation and cognizant of the decisive steps being
taken, with the least loss of time, towards their accomplishment, I cannot but
feel apprehensive that instead of serving the best interests of our people,
which to me is in reality the real meaning of our oath of office, the Court
might be standing in the way of the very thing our beloved country needs to
retrieve its past glory and greatness. In other words, it is my conviction that
what these cases demand most of all is not a decision demonstrative of our
legal erudition and Solomonic wisdom, but an all-rounded judgment resulting
from the consideration of all relevant circumstances, principally the political,
or, in brief, a decision more political than legal, which a court can render
only by deferring to the apparent judgment of the people and the
announcement thereof by the political departments of the government and
declaring the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial
methods of ascertainment, I cannot agree with the Solicitor General that in
the legal sense, there has been at least substantial compliance with Article
XV of the 1935 Constitution, but what I can see is that in a political sense,
the answers to the referendum questions were not given by the people as
legal conclusions. I take it that when they answered that by their signified
approval of the New Constitution, they do not consider it necessary to hold a
plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along
constitutional channels, they must have acted in the honest conviction that
what was being done was in conformity with prevailing constitutional
standards. We are not to assume that the sovereign people were indulging in
a futile exercise of their supreme political right to choose the fundamental
charter by which their lives, their liberties and their fortunes shall be
safeguarded. In other words, we must perforce infer that they meant their
decision to count, and it behooves this Court to render judgment herein in
that context. It is my considered opinion that viewed understandingly and
realistically, there is more than sufficient ground to hold that, judged by such
intent and, particularly, from the political standpoint, the ratification of the
1973 Constitution declared in Proclamation 1102 complies substantially with
Article XV of the 1935 Charter, specially when it is considered that the most
important element of the ratification therein contemplated is not in the word
"election", which conceivably can be in many feasible and manageable
forms but in the word "approved" which may be said to constitute the
substantiality of the whole article, so long as such approval is reasonably
ascertained. In the last analysis, therefore, it can be rightly said, even if only
in a broad sense, that the ratification here in question was constitutionally
justified and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the
New Constitution on legal grounds, the same should be dispelled by viewing
the situation in the manner suggested by Counsel Tolentino and by the
writer of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases — that is, as an extra-constitutional exercise by the people,
under the leadership of President Marcos, of their inalienable right to change
their fundamental charter by any means they may deem appropriate, the
moment they are convinced that the existing one is no longer responsive to
their fundamental, political and social needs nor conducive to the timely
attainment of their national destiny. This is not only the teaching of the
American Declaration of Independence but is indeed, a truth that is self-
evident. More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people have
given their sanction to a new charter, the latter may be deemed as
constitutionally permissible even from the point of view of the preceding
constitution. Those who may feel restrained to consider this view out of
respect to the import of Tolentino vs. Comelec, supra., would be well advised
to bear in mind that that case was decided in the context of submission, not
of accomplished ratification.
V
The language of the disputed amending clause of the 1935
Constitution should not be deemed as the be all and end of all the nation.
More important than even the Constitution itself with all its excellent
features, are the people living under it — their happiness, their posterity and
their national destiny. There is nothing that cannot be sacrificed in the
pursuit of these objectives, which constitute the totality of the reasons for
national existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have
hitherto observed are mere integral parts of this totality; they are less
important by themselves.
What seems to me to be bothering many of our countrymen now is
that by denying the present petitions, the Court would be deemed as
sanctioning, not only the deviations from traditional democratic concepts
and principles but also the qualified curtailment of individual liberties now
being practiced, and this would amount, it is feared, to a repudiation of our
oath to support and defend the Constitution of 1935. This is certainly
something one must gravely ponder upon. When I consider, however, that
the President, the Vice-President, the members of both Houses of Congress,
not to speak of all executive departments and bureaus under them, as well
as all the lower courts, including the Court of Appeals, have already
accepted the New Constitution as an instrument of a meaningful nationwide-
all-level change in our government and society purported to make more
realistic and feasible, rather than idealistic and cumbersomely deliberative,
the attainment of our national aspirations, I am led to wonder, whether or
not we, as members of the Supreme Court are being true to our duty to our
people by refusing to follow suit and to accept the realities of the moment,
despite our being convinced of the sincerity and laudableness of their
objectives, only because we feel that by the people's own act of ratifying the
Constitution of 1935, they have so encased themselves within its provisions
and may, therefore, no longer take measures to redeem themselves from
the situation brought about by the deficiencies of the old order, unless they
act in strict conformity therewith. I cannot believe that any people can be so
stifled and enchained. In any event, I consider it a God-given attribute of the
people to disengage themselves, if necessary, from any covenant that would
obstruct their taking what subsequently appears to them to be the better
road to the promotion and protection of their welfare. And once they have
made their decision in that respect, whether sophisticatedly or crudely,
whether in legal form or otherwise, certainly, there can be no court or power
on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Tañada and Salonga that these cases be
decided on the basis of conscience. That is exactly what I am doing. But if
counsel mean that only by granting their petitions can this Court be worthily
the bulwark of the people's faith in the government, I cannot agree, albeit
my admiration and respect are all theirs for their zeal and tenacity, their
industry and wisdom, their patriotism and devotion to principle. Verily, they
have brought out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the attainment of
the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo,
Antonio Luna, Mabini and so also with our patriots of the recent generations,
Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them,
had their differences of views — and they did not hesitate to take
diametrically opposing sides — that even reached tragic proportions, but all
of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people
is more important than loyalty to any particular precept or provision of the
Constitution or to the Constitution itself. My oath to abide by the Constitution
binds me to whatever course of action I feel sincerely is demanded by the
welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is
national unity. May God grant that the controversies the events leading to
these cases have entailed will heal after the decision herein is promulgated,
so that all of us Filipinos may forever join hands in the pursuit of our national
destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss all these petitions
for mandamus and prohibition without costs.
Makasiar, J., insofar as not inconsistent with my separate opinion.
Antonio, J., insofar as not inconsistent with the separate opinion of Mr.
Justice Macasiar.
Esguerra, J., insofar as not inconsistent with the separate opinion of Mr.
Justice Makasiar and of my own.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments or
of a new Constitution and that such procedure was no complied with, the
validity of Presidential Proclamation No. 1102 is a political, not a justiciable,
issue; for it is inseparably or inextricably linked with and strikes at, because
it is decisive of, the validity of the ratification and adoption of, as well as
acquiescence of the people in, the 1973 Constitution and the legitimacy of
the government organized and operating thereunder. And being political, it
is beyond the ambit of judicial inquiry, tested by the definition of a political
question enunciated in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051),
Moreover, this view will not do violence to rights vested under the new
Constitution, to international commitments forged pursuant thereto and to
decisions rendered by the judicial as well as quasi-judicial tribunals
organized and functioning under or whose jurisdiction has been altered by
the 1973 Constitution and by the government it established, and will
dissipate any confusion in the minds of the citizenry, who have been obeying
the mandates of the new Constitution, as well as exercising the rights and
performing the obligations defined by the new Constitution, and decrees and
orders issued in implementation of the same and cooperating with the
administration in the renovation of our social, economic and political system
as re-structured by the 1973 Constitution and by the implementing decrees
and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice,
in behalf as the court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada, et al. vs.
Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall
be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the
people for ratification." Under Article XV of the 1935 Constitution, the power
to propose constitutional amendments is vested in Congress or in a
constitutional convention; while the power to ratify or reject such proposed
amendments or new Constitution is reserved by the sovereign people. The
nullification of Proclamation No. 1102 would inevitably render inoperative
the 1973 Constitution, which is in fact the express prayer of the petitioners
in G.R. No. L-36164. Regardless of the modality of submission or ratification
or adoption — even if it deviates from or violates the procedure delineated
therefore by the old Constitution — once the new Constitution is ratified,
adopted and/or acquiesced in by the people or ratified even by a body or
agency not duly authorized therefor but is subsequently adopted or
recognized by the people and by the other official organs and functionaries
of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or
acquiescence and of the consequent effectivity of the new Constitution. This
is as it should be in a democracy, for the people are the repository of all
sovereign powers as well as the source of all governmental authority (Pole
vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is
expressly restated in Section 1 of Article II of the Declaration of Principles of
the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people
and all government authority emanates from them."
The legality of the submission is no longer relevant; because the
ratification, adoption and/or acquiescence by the people cures any infirmity
in its submission or any other irregularities therein which are deemed
mandatory before submission as they are considered merely directory after
such ratification or adoption or acquiescence by the people. As Mr. Justice
Brewer, then of the Kansas State Supreme Court and later Associate Justice
of the Federal Supreme Court, stated in re Prohibitory Amendment Cases (24
Kansas 700 & 710, Reprint 499, 506) : "The two important, vital elements in
any constitutional amendment are the assent of 2/3 of the Legislature and a
majority of the popular vote. Beyond these, other provisions are mere
machineries and forms. They may not be disregarded, because by them
certainty as to the essential is secured. But they are not themselves the
essentials. " (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case of
Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes,
speaking for the majority, stated that:
". . . Thus the political departments of the government dealt with
the effect of both previous rejection and attempted withdrawal and
determined that both were ineffectual in the presence of an actual
ratification . . . This decision by the political departments of the
Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
"We think that in accordance with this historic precedent the
question of the efficacy of ratifications by state legislatures, in the
light of previous rejection or attempted withdrawal, should be
regarded as a political question pertaining to the political
departments, with the ultimate authority in the Congress in the
exercise of its control over the promulgation of the adoption of the
amendment."
This view was likewise emphasized by Mr. Justice Black in his
concurring opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas
join, thus:
"The Constitution grants Congress exclusive power to control
submission of constitutional amendments. Final determination by
Congress that ratification by three-fourths of the States has taken
place 'is conclusive upon the courts.' In the exercise of that power
Congress, of course, is governed by the Constitution. However,
whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the
Constitution, calls for decisions by a 'political department' of
questions of a type which this Court has frequently designated
'political.' And decision of a 'political question' by the 'political
department' to which the Constitution has committed it
'conclusively binds the judges, as well as all other officers, citizens
and subjects of . . . government.' Proclamation under authority of
Congress that an amendment has been ratified will carry with it a
solemn assurance by the Congress that ratification has taken
place as the Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of
interpretation. To the extent that the Court's opinion in the
present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress
over submission and ratification of amendments, we are unable to
agree . . ." (American Constitutional Issues, by Pritchett, 1962 Ed.,
p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted
by Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov.
29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16,
1971, 41 SCRA 702) — on which petitioners place great reliance that the
courts may review the propriety of a submission of a proposed constitutional
amendment before the ratification or adoption of such proposed amendment
by the sovereign people, hardly applies to the cases at bar; because the
issue involved in the aforesaid cases refers to only the propriety of the
submission of a proposed constitutional amendment to the people for
ratification, unlike the present petitions, which challenge inevitably the
validity of the 1973 Constitution after its ratification or adoption thru
acquiescence by the sovereign people. As heretofore stated, it is specious
and pure sophistry to advance the reasoning that the present petitions pray
only for the nullification of Proclamation No. 1102, not the nullification of the
1973 Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held
that:
"Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of
legislative powers to Congress. It is part of the inherent powers of
the people — as the repository of sovereignty in a republican
state, such as ours — to make, and hence, to amend their own
Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such
power. Hence, when exercising the same, it is said that Senators
and Members of the House of Representatives act, not as
members of Congress, but as component elements of a
constituent assembly. When acting as such, the members of
Congress derive their authority from the Constitution, unlike the
people, when performing the same function, for their authority
does not emanate from the Constitution — they are the very
source of all powers of government, including the Constitution
itself." (21 SCRA 787)
WE did not categorically and entirely overturn the doctrine in Mabanag
vs. Lopez Vito (78 Phil. 1) that both the proposal to amend and the
ratification of such a constitutional amendment are political in nature
forming as they do the essential parts of one political scheme — the
amending process. WE merely stated therein that the force of the ruling in
the said case of Mabanag vs. Lopez Vito has been weakened by subsequent
cases. Thus, We pronounced therein:
"It is true that in Mabanag vs. Lopez Vito, this Court characterizing
the issue submitted thereto as a political one, declined to pass
upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution —
which was being submitted to the people for ratification —
satisfied the three-fourths vote requirement of the fundamental
law. The force of this precedent has been weakened, however, by
Suanes vs. Chief Accountant of the Senate, Avelino vs. Cuenco,
Tañada vs. Cuenco, and Macias vs. Commission on Elections. In
the first, we held that the officers and employees of the Senate
Electoral Tribunal are under its supervision and control, not of that
of the Senate President, as claimed by the latter; in the second,
this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullified the
election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act on behalf of
the party having the second largest number of votes therein, of
two (2) Senators belonging to the first party, as members, for the
second party, of the Senate Electoral Tribunal; and in the fourth,
we declared unconstitutional an act of Congress purporting to
apportion the representative districts of the House of
Representatives, upon the ground that the apportionment had not
been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory
advanced in these four (4) cases, that the issues therein raised
were political questions the determination of which is beyond
judicial review." (21 SCRA pp. 785-786);
for which reason We concluded
"In short, the issue whether or not a resolution of Congress —
before acting as a constituent assembly — violates the
Constitution is essentially justiciable, not political, and, hence,
subject to judicial review, and to the extent that this view may be
consistent with the stand taken in Mabanag vs. Lopez Vito, the
latter should be deemed modified accordingly. " (p. 787, italics
supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements
(41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the
ratification or adoption of or acquiescence by the people in the 1973
Constitution, remains a political issue removed from the jurisdiction of this
Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed constitutional
amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act; it
inquires into the existence of power or lack of it. Judicial wisdom is not to be
pitted against the wisdom of the political department of the government.
The classic example of an illegal submission that did not impair the
validity of the ratification or adoption of a new Constitution is the case of the
Federal Constitution of the United States. It should be recalled that the
thirteen (13) original states of the American Union — which succeeded in
liberating themselves from England after the revolution which began on April
19, 1775 with the skirmish at Lexington, Massachusetts and ended with the
surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781
(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Articles of
Confederation and Perpetual Union, that was written from 1776 to 1777 and
ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525).
About six years thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal Constitutional
Convention " for the sole and express purpose of revising the articles of
confederation . . . ." (Appendix I, Federalist, Modern Library ed., p. 577,
italics supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII
of the Articles of Confederation and Perpetual Union stated specifically:
"The articles of this confederation shall be inviolably observed by
every state, and the union shall be perpetual; nor shall any
alteration at any time hereafter be made in any of them; unless
such alteration be agreed to in a congress of the united states, and
be afterwards confirmed by the legislatures of every state." (See
the Federalist, Appendix II, Modern Library Ed., 1937, p. 584;
italics supplied.)
But the foregoing requirements prescribed by the Articles of
Confederation and Perpetual Union for the alteration and for the ratification
of the Federal Constitution as drafted by the Philadelphia Convention were
not followed. Fearful that the said Federal Constitution would not be ratified
by the state legislatures as prescribed, the Philadelphia Convention adopted
a resolution requesting the Congress of the Confederation to pass a
resolution providing that the Federal Constitution should be submitted to
elected state conventions and if ratified by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said Constitution shall
take effect.
Thus, history Professor Edward Earle Mead of Princeton University
recorded that:
"It would have been a counsel of perfection to consign the
new Constitution to the tender mercies of the legislatures of each
and all of the 13 states. Experience clearly indicated that
ratification then would have had the some chance as the scriptural
camel passing thru the eye of a needle. It was therefore
determined to recommend to Congress that the new Constitution
be submitted to conventions as in the several states specially
elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified
by nine of the thirteen states . . ." (The Federalist, Modern Library
Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix; italics
supplied).
Historian Samuel Eliot Morison similarly recounted:
"The Convention, anticipating that the influence of many
state politicians would be Antifederalist, provided for ratification of
the Constitution by popularly elected conventions in each state.
Suspecting that Rhode Island, at least, would prove recalcitrant, it
declared that the Constitution would go into effect as soon as nine
states ratified. The convention method had the further advantage
that judges, ministers, and others ineligible to state legislatures,
could be elected to a convention. The nine-state provision was, of
course, mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on federal
government until relieved, formally submitted the new
constitution to the states and politely faded out before the first
presidential inauguration." (The Oxford History of the Am. People,
by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on
June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679
footnote, 16 C.J.S. 27 — by the state conventions and not by all thirteen (13)
state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequoted — and in spite of the fact that the Federal
Constitution as originally adopted suffers from two basic infirmities, namely,
the absence of a bill of rights and of a provision affirming the power of
judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review has
become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison
(1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of
the ratification of the American Constitution, or against the legitimacy of the
government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-
330), which enunciated the principle that the validity of a new or revised
Constitution does not depend on the method of its submission or ratification
by the people, but on the fact of fiat or approval or adoption or acquiescence
by the people, which fact of ratification or adoption or acquiescence is all
that is essential, the Court cited precisely the case of the irregular revision
and ratification by state conventions of the Federal Constitution, thus:
"No case identical in its facts with the case now under
consideration has been called to our attention, and we have found
none. We think that the principle which we apply in the instant
case was very clearly applied in the creation of the constitution of
the United States. The convention created by a resolution of
Congress had authority to do one thing, and one only, to wit,
amend the articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a new constitution.
In this manner was the constitution of the United States submitted
to the people and it became operative as the organic law of this
nation when it had been properly adopted by the people.
"Pomeroy's Constitutional Law, p. 55, discussing the
convention that formulated the constitution of the United States,
has this to say: 'The convention proceeded to do, and did
accomplish, what they were not authorized to do by a resolution of
Congress that called them together. That resolution plainly
contemplated amendments to the articles of confederation, to be
submitted to and passed by the Congress, and afterwards ratified
by all the State legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced
that any amendments were powerless to effect a cure; that the
disease was too deeply seated to be reached by such tentative
means. They saw that the system they were called to improve
must be totally abandoned, and that the national idea must be re-
established at the center of their political society. It was objected
by some members, that they had no power, no authority, to
construct a new government. They had no authority, if their
decisions were to be final; and no authority whatever, under the
articles of confederation, to adopt the course they did. But they
knew that their labors were only to be suggestions; and that they
as well as any private individuals, and any private individuals as
well as they, had a right to propose a plan of government to the
people for their adoption. They were, in fact, a mere assemblage
of private citizens, and their work had no more binding sanction
than a constitution drafted by Mr. Hamilton in his office, would
have had. The people, by their expressed will, transformed this
suggestion, this proposal, into an organic law, and the people
might have done the same with a constitution submitted to them
by a single citizen.'
"xxx xxx xxx
". . . When the people adopt a completely revised or new
Constitution, the framing or submission of the instrument is not
what gives it binding force and effect. The fiat of the people, and
only the fiat of the people, can breathe life into a constitution.
"xxx xxx xxx
". . . We do not hesitate to say that a court is never justified
in placing by implication a limitation upon the sovereign. This
would be an unauthorized exercise of sovereign power by the
court. In State vs. Swift, 69 Ind. 505, 519, the Indiana Supreme
Court said: "The people of a State may form an original
constitution, or abrogate an old one and form a new one, at any
time, without any political restriction except the constitution of the
United States; . . . ." (37 SE 327-328, 329, italics supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
"It remains to be said that if we felt at liberty to pass upon
this question, and were compelled to hold that the act of February
23, 1887, is unconstitutional and void, it would not, in our opinion,
by any means follow that the amendment is not a part of our state
Constitution. In the recent case of Taylor vs. Commonwealth (Va.)
44 S.E. 754, the Supreme Court of Virginia hold that their state
Constitution of 1902, having been acknowledged and accepted by
the officers administering the state government, and by the
people, and being in force without opposition, must be regarded as
an existing Constitution irrespective of the question as to whether
or not the convention which promulgated it had authority so to do
without submitting it to a vote of the people. In Brittle vs. People, 2
Neb. 198, is a similar holding as to certain provisions of the
Nebraska Constitution of 1886, which were added by the
Legislature at the requirement of Congress, though never
submitted to the people for their approval." (97 NW 349-350;
italics supplied).
Against the decision in the Wheeler case, supra, confirming the validity
of the ratification and adoption of the American Constitution, in spite of the
fact that such ratification was in clear violation of the prescription on
alteration and ratification of the Articles of Confederation and Perpetual
Union, petitioners in G.R. No. L-36165 dismissed this most significant
historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris
Secundum, p. 27, that it was a revolutionary constitution because it did not
obey the requirement that the Articles of Confederation and Perpetual Union
can be amended only with the consent of all thirteen (13) state legislatures.
This opinion does not cite any decided case, but merely refers to the
footnotes on the brief historical account of the United States Constitution on
p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to
pp. 270-316 of the Oxford History of the American People, 1965 Ed. by
Samuel Eliot Morison, who discusses the Articles of Confederation and
Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution
Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in
Politics, 1785-1788," Professor Morison delineates the genesis of the Federal
Constitution, but does not refer to it even implicitly as revolutionary
constitution (pp. 297-316). However, the Federal Constitution may be
considered revolutionary from the view point of MacIver if the term
revolution is understood in "its wider sense to embrace decisive changes in
the character of government, even though they do not involve the violent
overthrow of an established order, . . ." (R.M. MacIver, The Web of
Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and Perpetual Union
that was in force from July 12, 1776 to 1788, forged as it was during the war
of independence was a revolutionary constitution of the thirteen (13) states.
In the existing Federal Constitution of the United States which was adopted
seven (7) or nine (9) years after the thirteen (13) states won their
independence and long after popular support for the government of the
Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a "creation of the brain and purpose of man" in an era of
peace. It can only be considered revolutionary in the sense that it is a radical
departure from its predecessor, the Articles of Confederation and Perpetual
Union.
It is equally absurd to affirm that the present Federal Constitution of
the United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no further
refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No.
1102 strikes at the validity and enforceability of the 1973 Constitution and of
the government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L-36164). If
Proclamation No. 1102 is nullified, then there is no valid ratification of the
1973 Constitution and the inevitable conclusion is that the government
organized and functioning thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political
and not justiciable, had long been decided as early as the 1849 case of
Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of
Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912
in the case of Pacific States Telephone and Telegraph Company vs. Oregon
(223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the
pronouncements in both Borden and Beckham cases, it is sufficient for us to
quote the decision in Pacific States Telephone and Telegraph Co., supra,
penned by Mr. Chief Justice White, who re-stated:
"In view of the importance of the subject, the apparent
misapprehension on one side and seeming misconception on the
other, suggested by the argument as to the full significance of the
previous doctrine, we do not content ourselves with a mere
citation of the cases, but state more at length than we otherwise
would the issues and the doctrine and the doctrine expounded in
the leading and absolutely controlling case — Luther vs. 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, as
proposed by the plaintiff, and it should be decided that the charter
government had no legal existence during the period of time
above mentioned, — if it had been annulled by the adoption of the
opposing government, — then the laws passed by its legislature
during that time were nullities; its taxes wrongfully collected; its
salaries and compensation to its officers illegally paid; its public
accounts improperly settled; and the judgments and sentences of
its courts in civil and criminal cases null and void, and the officers
who carried their decisions into operation answerable as
trespassers, if not in some cases as criminals.'
"xxx xxx xxx
"'The fourth section of the fourth article of the Constitution
of the United States shall guarantee to every state in the Union a
republican form of government, and shall protect each of them
against invasion; and on the application of the Legislature or of the
Executive (when the legislature cannot be convened) against
domestic violence.
"'Under this article of the Constitution it rests with Congress
to decide what government is the established one in a state. For,
as the United States guarantee to each state a republican
government, Congress must necessarily decide what government
is established in the state before it can determine whether it is
republican or not. And when the senators and representatives of a
state are admitted into the councils of the Union, the authority of
the government under which they are appointed, as well as its
republican character, is recognized by the proper constitutional
authority. And its decision is binding on every other department of
the government, and could not be questioned in a judicial tribunal.
It is true that the contest in this case did not last long enough to
bring the matter to this issue; and as no senators or
representatives were elected under the authority of the
government of which Mr. Dorr was the head, Congress was not
called upon to decide the controversy. Yet the right to decide is
placed there, and not in the courts.'
"xxx xxx xxx

". . . We do not stop to cite other cases which indirectly or
incidentally refer to the subject, but conclude by directing
attention to the statement by the court, speaking through Mr.
Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed.
1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a
contention made concerning the 14th Amendment, and coming to
consider a proposition which was necessary to be decided
concerning the nature and effect of the guaranty of S 4 of article 4,
it was said (p. 578):
"'But it is said that the 14th Amendment must be read with S
4 of article 4, of the Constitution, providing that 'the United States
shall guarantee to every state in this Union a republican form of
government, and shall protect each of them against invasion; and
on application of the legislature, or the Executive (when the
legislature cannot be convened), against domestic violence.'
"xxx xxx xxx
"'It was long ago settled that the enforcement of this
guaranty belonged to the political department. Luther vs. Borden,
7 How. 1, 12 L.ed. 581. In that case it was held that the question,
which of the two opposing governments of Rhode Island, namely,
the charter government or the government established by a
voluntary convention, was the legitimate one, was a question for
the determination of the political department; and when that
department had decided, the courts were bound to take notice of
the decision and follow it '
"xxx xxx xxx
"As the issues presented, in their very essence, are, and
have long since by this Court been, definitely determined to be
political and governmental, and embraced within the scope of the
powers conferred upon Congress, and not, therefore, within the
reach of judicial power, it follows that the case presented is not
within our jurisdiction, and the writ of error must therefore be, and
it is, dismissed for want of jurisdiction. " (223 U.S. pp. 142-151;
italics supplied).
Even a constitutional amendment that is only promulgated by the
Constitutional Convention without authority therefor and without submitting
the same to the people for ratification, becomes valid, when recognized,
accepted and acted upon by the Chief of State an a other government
functionaries as well as by the people. In the 1903 case of Taylor vs.
Commonwealth (44 SE 754-755), the Court ruled:
"The sole ground urged in support of the contention that the
Constitution proclaimed in 1902 is invalid is that it was ordained
and promulgated by the convention without being submitted for
ratification or rejection by the people of the commonwealth.
"The Constitution of 1902 was ordained and proclaimed by a
convention duly called by direct vote of the people of the state to
revise and amend the Constitution of 1869. The result of the work
of that convention has been recognized, accepted, and acted upon
as the only valid Constitution of the state by the Governor in
swearing fidelity to it and proclaiming it, as directed thereby; by
the Legislature in its formal official act adopting a joint resolution,
July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the 12th
day of June, 1901, as the Constitution of Virginia; by the individual
oaths of its members to support it, and by its having been
engaged for nearly a year in legislating under it and putting its
provisions into operation; but the judiciary in taking the oath
prescribed thereby to support it, and by enforcing its provisions;
and by the people in their primary capacity by peacefully
accepting it and acquiescing in it, by registering as voters under it
to the extent of thousands throughout the state, and by voting,
under its provisions, at a general election for their representatives
in the Congress of the United States." (p. 755).
The Court in the Taylor case above-mentioned further said:
"While constitutional procedure for adoption or proposal to
amend the constitution must be duly followed, without omitting
any requisite steps, courts should uphold amendment, unless
satisfied that the Constitution was violated in submitting the
proposal . . . Substance more than form must be regarded in
considering whether the complete constitutional system or
submitting the proposal to amend the constitution was observed."
In the 1925 case of Taylor vs. King (130 A 407, 408-410), the Court
stated:
"There may be technical error in the manner in which a
proposed amendment is adopted, or in its advertisement, yet, if
followed, unobjected to, by approval of the electors, it becomes
part of the Constitution. Legal complaints to the submission may
be made prior to taking the vote but, if once sanctioned, the
amendment is embodied therein, and cannot be attacked, either
directly or collaterally, because of any mistake antecedent thereto.
Even though it be submitted at an improper time, it is effective for
all purposes when accepted by the majority. Armstrong vs. King,
281 Pa. 207, 126 A. 263." (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,
such act becomes valid upon ratification or adoption or acquiescence by the
people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company
(42 SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and
stated that: "The authorities are almost uniform that this ratification of an
unauthorized act by the people (and the people are the principal in this
instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying
the new Constitution are registered in the book of voters; it is enough that
they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740
[1899]; 45 LRA 251, italics supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370,
375), the Supreme Court of Wisconsin ruled that "irregularity in the
procedure for the submission of the proposed constitutional amendment will
not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd
769), the Alabama Supreme Court pronounced that "the irregularity in failing
to publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election was
held or once in each of the 7-day periods immediately preceding the day of
the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme
Court in Barnes, et al. vs. Ladner (131) SO 2nd 458, 462), where they
admitted irregularities or illegalities committed in the procedure for
submission of the proposed constitutional amendment to the people for
ratification consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a sufficient number of
ballot boxes 'secured by good and substantial locks,' as provided by Section
3249, Code of 1942, Rec., to be used in the holding of the special election on
the constitutional amendment, and (b) the alleged failure of the State
Election Commissioners to comply with the requirements of Code Sections
3204 and 3205 in the appointment of election commissioners in each of the
82 counties. The irregularities complained of, even if proved, were not such
irregularities as would have invalidated the election. " (Italics supplied; see
also Sylvester vs. Tindall, 18 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates to the
Constitutional Convention and during the deliberations of the Constitutional
Convention from June 1, 1971 until before martial law was proclaimed on
Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which
have long been desired by the people, had been thoroughly discussed in the
various committees of the Constitutional Convention, on the floor of the
convention itself, in civic forums and in all the media of information. Many of
the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan.
17, 1973 implement some of the reforms and had been ratified in Sec. 3(2)
of Article XVII of the Constitution.
Petitioners cannot safely state that during martial law the majority of
the people cannot freely vote for these reforms and are not complying with
the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had
free elections in 1951 and 1971 when the opposition won six out of eight
senatorial seats despite the suspension of the privileges of the writ of
habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448),
which suspension implies constraint on individual freedom as the
proclamation of martial law. In both situations, there is no total blackout of
human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or
Liberals, as well as officials of the Legislative and Executive branches of the
government elected and/or appointed under the 1935 Constitution have
either recognized or are now functioning under the 1973 Constitution, aside
from the fact of its ratification by the sovereign people through the Citizens'
Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of
the House of Representatives including the Speaker and the Speaker Pro
Tempore as well as about eleven (11) Congressmen who belong to the
Liberal Party and fifteen (15) of a total of twenty-four (24) senators including
Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the
Interim National Assembly, according to the certification of the Commission
on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165
close their eyes to a fait accompli. All the other functionaries recognize the
new government and are performing their duties and exercising their powers
under the 1973 Constitution, including the lower courts. The civil courts,
military tribunals and quasi-judicial bodies created by presidential decrees
have decided some criminal, civil and administrative cases pursuant to such
decrees. The foreign ambassadors who were accredited to the Republic of
the Philippines before martial law continue to serve as such in our country;
while two new ambassadors have been accepted by the Philippines after the
ratification of the 1973 Constitution on January 17, 1973. Copies of the 1973
Constitution had been furnished the United Nations Organization and
practically all the other countries with which the Philippines has diplomatic
relations. No adverse reaction from the United Nations or from the foreign
states has been manifested. On the contrary, our permanent delegate to the
United Nations Organization and our diplomatic representatives abroad
appointed before martial law continue to remain in their posts and are
performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions
of the 1973 Constitution by requiring all election registrars to register 18-
year old and above whether literates or not, who are qualified electors under
the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973
Constitution and the government which is enforcing the same for over 10
weeks now. With the petitioners herein, secessionists, rebels and
subversives as the only possible exceptions, the rest of the citizenry are
complying with the decrees, orders and circulars issued by the incumbent
President implementing the 1973 Constitution
Of happy relevance on this point is the holding in Miller vs. Johnson 18
SW 522):
"If a set of men, not selected by the people according to the
forms of law, were to formulate an instrument and declare it the
constitution, it would undoubtedly be the duty of the courts to
declare its work a nullity. This would be revolution, and this the
courts of the existing government must resist until they are
overturned by power, and a new government established. The
convention, however, was the offspring of law. The instrument
which we are asked to declare invalid as a constitution has been
made and promulgated according to the forms of law. It is a
matter of current history that both the executive and legislative
branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore,
one of a judicial character? It is our undoubted duty, if a statute be
unconstitutional, to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may be said,
however, that, for every violation of or non-compliance with the
law, there should be a remedy in the courts. This is not, however,
always the case. For instance, the power of a court as to the acts
of other departments of the government is not an absolute one,
but merely to determine whether they have kept within
constitutional limits, it is a duty, rather than a power. The judiciary
cannot compel a co-equal department to perform a duty. It is
responsible to the people; but if it does act, then, when the
question is properly presented, it is the duty of the court to say
whether it has conformed to the organic law. While the judiciary
should protect the rights of the people with great care and
jealousy, because this is its duty, and also because, in times of
great popular excitement, it is usually their last resort, yet it
should at the same time be careful to overstep the proper bounds
of its power, as being perhaps equally dangerous; and especially
where such momentous results might follow as would be likely in
this instance, if the power of the judiciary permitted, and its duty
required, the overthrow of the work of the convention.
"After the American Revolution the state of Rhode Island
retained its colonial character as its constitution, and no law
existed providing for the making of a new one. In 1841 public
meetings were held, resulting in the election of a convention to
form a new one, — to be submitted to a popular vote. The
convention framed one, submitted it to a vote, and declared it
adopted. Elections were held for state officers, who proceeded to
organize a new government. The charter government did not
acquiesce in these proceedings, and finally declared the state
under martial law. It called another convention, which in 1843
formed a new constitution. Whether the charter government, or
the one established by the voluntary convention, was the
legitimate one, was uniformly held by the courts of the state not to
be a judicial, but a political, question; and, the political
department having recognized the one, it was held to be the duty
of the judiciary to follow its decision. The Supreme Court of the
United States, in Luther vs. Borden, 7 How. 1, while not expressly
deciding the principle, as it held the federal court, yet in the
argument approves it, and in substance says that where the
political department has decided such a matter the judiciary
should abide by it.
"Let us illustrate the difficulty of a court deciding the
question: Suppose this court were to hold that the convention,
when it reassembled, had no power to make any material
amendment, and that such as were made are void by reason of
the people having theretofore approved the instrument. Then,
next, this court must determine what amendments were material;
and we find the court, in effect, making a constitution. This would
be arrogating sovereignty to itself. Perhaps the members of the
court might differ as to what amendments are material, and the
result would be confusion and anarchy. One judge might say that
all the amendments, material and immaterial, were void; another,
that the convention had then the implied power to correct
palpable errors, and then the court might differ as to what
amendments are material. If the instrument as ratified by the
people could not be corrected or altered at all, or if the court must
determine what changes were material, then the instrument, as
passed upon by the people or as fixed by the court could be
lacking a promulgation by the convention; and, if this be essential,
then the question would arise, what constitution are we now living
under, and what is the organic law of the state? A suggestion of
these matters shows what endless confusion and harm to the state
might and likely would arise. If, through error of opinion, the
convention exceeded its powers, and the people are dissatisfied,
they have ample remedy, without the judiciary being asked to
overstep the proper limits of its power. The instrument provides
for amendment and change. If a wrong has been done, it can, and
the proper way in which it should be remedied, is by the people
acting as a body politic. It is not a question of whether merely an
amendment to a constitution, made without calling a convention,
has been adopted, as required by that constitution. If it provides
how it is to be done, then, unless the manner be followed, the
judiciary, as the interpreter of that constitution, will declare the
amendment invalid. Koehler vs. Hill, 60 Iowa, 543,14 N.W. Rep.
738, and 15 N.W. Rep. 609; State vs. Tuffy, 19 Nev. 391, 12 Pac.
Rep. 835. But it is a case where a new constitution has been
formed and promulgated according to the forms of law. Great
interests have already arisen under it; important rights exist by
virtue of it; persons have been convicted of the highest crimes
known to the law, according to its provisions; the political power of
the government has in many ways recognized it; and, under such
circumstances, it is our duty to treat and regard it as a valid
constitution, and now the organic law of our commonwealth.
"We need not consider the validity of the amendments made
after the convention reassembled. If the making of them was in
excess of its powers, yet, as the entire instrument has been
recognized as valid in the manner suggested, it would be equally
an abuse of power by the judiciary and violative of the rights of the
people, — who can and properly should remedy the matter, if not
to their liking, — if it were to declare the instrument of a portion
invalid, and bring confusion and anarchy upon state." (italics
supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution, it would be exercising
a veto power on the act of the sovereign people, of whom this Court is
merely an agent, which to say the least, would be anomalous. This Court
cannot dictate to our principal, the sovereign people, as to how the approval
of the new Constitution should be manifested or expressed. The sovereign
people have spoken and we must abide by their decision, regardless of our
notion as to what is the proper method of giving assent to the new Charter.
In this respect, WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last January 8, 1973,
We affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8,
1973), was re-elected by the vote of over 5 million electors in 1969 for
another term of four years until noon of December 30, 1973 under the 1935
Constitution. This Court, not having a similar mandate by direct fiat from the
sovereign people, to execute the law and administer the affairs of
government, must restrain its enthusiasm to sally forth into the domain of
political action expressly and exclusively reserved by the sovereign people
themselves.
The people in Article XV of the 1935 Constitution did not intend to tie
their hands to a specific procedure for popular ratification of their organic
law. That would be incompatible with their sovereign character of which We
are reminded by Section 1, of Article II of both the 1935 and the 1973
Constitutions.
The Opinion of Judge Thomas McIntire Cooley that the sovereign
people cannot violate the procedure for ratification which they themselves
define in their Constitution, cannot apply to a unitary state like the Republic
of the Philippines. His opinion expressed in 1868 may apply to a Federal
State like the United States, in order to secure and preserve the existence of
the Federal Republic of the United States against any radical innovation
initiated by the citizens of the fifty (50) different states of the American
Union, which states may be jealous of the powers of the Federal government
presently granted by the American Constitution. This dangerous possibility
does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when
he wrote his opus "Constitutional Limitations." 100 (Vol. 6, Encyclopedia
Brit., 1969 ed. pp. 445-446). It is possible that, were he alive today, in a
milieu vastly different from 1868 to 1898, he might have altered his views
on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by
the President in Proclamation No. 1102 that the people through their
Citizens' Assemblies had overwhelmingly approved the new Constitution,
due regard to a separate, coordinate and co-equal branch of the government
demands adherence to the presumption of correctness of the President's
declaration. Such presumption is accorded under the law and jurisprudence
to officials in the lower levels of the Executive branch; there is no over-riding
reason to deny the same to the Chief of State as head of the Executive
Branch. WE cannot reverse the rule on presumptions, without being
presumptuous, in the face of the certifications by the Office of the Secretary
of the Department of Local Government and Community Development.
(Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestation
filed by the Solicitor General on behalf of the respondents public officers
dated March 7, 1973). There is nothing in the record that contradicts, much
less overthrow the results of the referendum as certified. Much less are We
justified in reversing the burden of proof — by shifting it from the petitioners
to the respondents. Under the rules on pleadings, the petitioners have the
duty to demonstrate by clear and convincing evidence their claim that the
people did not ratify through the Citizens' Assemblies nor adopt by
acquiescence the 1973 Constitution. And petitioners have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by
the cases at bar on the basis of reports relayed to him from private sources
which could be biased and hearsay, aside from the fact that such reports are
not contained in the record. Proclamation No. 1102 is not just an ordinary
act of the Chief Executive. It is a well-nigh solemn declaration which
announces the highest act of the sovereign people — their imprimatur to the
basic Charter that shall govern their lives hereafter — maybe for decades, if
not for generations.
Petitioners decry that even 15-year old, ex-convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that the
term "Filipino people " in the preamble as well as "people" in Sections 1 and 5
of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill
of Rights includes all Filipino citizens of all ages, of both sexes, whether
literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts
or ex-convicts. Without admitting that ex-convicts and imbeciles voted in the
referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or derision and
whom petitioners would deny their sovereign right to pass upon the basic
Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law- abiding, and those who are 21
years of age or above to express their conformity or non-conformity to the
proposed Constitution, because their stake under the new Charter is not any
less than the stake of the more fortunate among us. As a matter of fact,
these citizens, whose juridical personality or capacity to act is limited by age,
civil interdiction or ignorance deserve more solicitude from the State than
the rest of the citizenry. In the ultimate analysis, the inclusion of those from
15 years up to below 21 years old, the ex-convicts and the ignorant, is more
democratic as it broadens the base of democracy and therefore more
faithful to the express affirmation in Section 1 of Article II of the Declaration
of Principles that "sovereignty resides in the people and all government
authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote.
Not all ex-convicts are banned from voting. Only those who had been
sentenced to at least one year imprisonment are disenfranchised, but they
recover their right of suffrage upon expiration of ten years after service of
sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and
imbeciles constitute a very negligible number in any locality or barrio,
including the localities of petitioners.
Included likewise in the delegated authority of the President, is the
prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification as to the results of the same from the Department of
Local Governments. But there was such certification as per Annexes 1 to 1-A
to the Notes submitted by the Solicitor General as counsel for respondents
public officers. This should suffice to dispose of this point. Even in the
absence of such a certification, in much the same way that in passing laws,
Congress or the legislative body is presumed to be in possession of the facts
upon which such laws are predicated (Justice Fernando, The Power of Judicial
Review, 1967 Ed., pp. 112-113, citing Lorenzo vs. Dir., etc., [1927] 50 Phil.
595 and O'Gonmore, et al, vs. Hartford, etc., [1931] 282 U.S. 251), it should
likewise be presumed that the President was in possession of the facts upon
which Proclamation No. 1102 was based. This presumption is further
strengthened by the fact that the Department of Local Governments, the
Department of National Defense and the Philippine Constabulary as well as
the Bureau of Posts are all under the President, which offices, as his alter
ego, are presumptively acting for and in behalf of the President and their
acts are valid until disapproved or reprobated by the President (Planas vs.
Gil, 67 Phil. 62, Villena vs. Secretary of Interior, 67 Phil. 451). To deny the
truth or the proclamation of the President as to the overwhelming majority
vote in the Citizens' Assemblies in favor of the new Constitution, is to charge
the President with falsification, which is a most grievous accusation. Under
the rules of pleadings and evidence, the petitioners have the burden of proof
by preponderance of evidence in civil cases and by proof beyond reasonable
doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the
petitioners all assert the contrary? Is the rule of law they pretend to invoke
only valid as long as it favors them?
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the Chief of
State. What reason is there to withhold such a presumption in favor of the
President? Does the fact that the President belong to the party in power and
that four (4) of the five (5) senators who are petitioners in L-36165 belong to
the opposition party, justify a discrimination against the President in matters
of this nature? Unsupported as their word is by any credible and competent
evidence under the rules of evidence, must the word of the petitioners
prevail over that of the Chief Executive, because they happen to be former
senators and delegates to the Constitutional Convention? More than any of
the petitioners herein in all these cases, the incumbent President realizes
that he risks the wrath of his people being visited upon him and the adverse
or hostile verdict of history; because of the restrictions on the civil liberties
of his people, inevitable concomitants of martial law, which necessarily entail
some degree of sacrifice on the part of the citizenry. Until the contrary is
established or demonstrated, herein petitioners should grant that the Chief
Executive is motivated by what is good for the security and stability of the
country, for the progress and happiness of the people. All the petitioners
herein cannot stand on the proposition that the rights under the 1935
Constitution are absolute and invulnerable to limitations that may be needed
for the purpose of bringing about the reforms for which the petitioners
pretend to be clamoring for and in behalf of the people. The five (5)
petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164
were all participants in the political drama of this country since 1946. They
are witness to the frustrations of well-meaning Presidents who wanted to
effect the reforms, especially for the benefit of the landless and the laboring
class — how politics and political bargaining had stymied the effectuation of
such reforms thru legislation. The eight (8) petitioners in L-36164 and L-
36165 may not have participated in the systematic blocking of the desired
reforms in Congress or outside of it; but the question may be asked as to
what exactly they did to support such reforms. For the last seven (7)
decades since the turn of the century, for the last thirty-five (35) years since
the establishment of the Commonwealth government in 1935 and for the
last twenty-seven (27) years since the inauguration of the Republic on July 4,
1946, no tangible substantial reform had been effected, funded and
seriously implemented, despite the violent uprisings in the thirties, and from
1946 to 1952, and the violent demonstrations of recent memory. Congress
and the oligarchs acted like ostriches, "burying their heads in timeless sand."
Now the hopes for the long-awaited reforms to be effected within a year or
two are brighter. It would seem therefore to be the duty of everyone
including herein petitioners to give the present leadership the opportunity to
institute and carry out the needed reforms as provided for in the new or
1973 Constitution and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in
placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and by the
sovereign people. This Court did not pay heed to the principle that the courts
are not the fountain spring of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment of
the people on the basic instrument which affects their very lives. WE cannot
determine what is good for the people or what ought to be their fundamental
law. WE can only exercise the power delegated to Us by the sovereign
people, to apply or interpret the Constitution and the laws for the benefit of
the people, not against them nor to prejudice them. WE cannot perform an
act inimical to the interest of Our principal, who at any time may directly
exercise their sovereign power of ratifying a new Constitution in the manner
convenient to them
It is pertinent to ask whether the present Supreme Court can function
under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where there
was at least another government claiming to be the legitimate organ of the
state of Rhode Island (although only on paper as it had no established organ
except Dorr who represented himself to be its head; in the cases at bar there
is no other government distinct from and maintaining a position against the
existing government headed by the incumbent Chief Executive. (See Taylor
vs. Commonwealth, supra). There is not even a rebel government duly
organized as such even only for domestic purposes, let alone a rebel
government engaged in international negotiations. As heretofore stated,
both the executive branch and the legislative branch established under the
1935 Constitution had been supplanted by the government functioning
under the 1973 Constitution as of January 17, 1973. The vice president
elected under the 1935 Constitution does not asset any claim to the
leadership of the Republic of the Philippines. Can this Supreme Court legally
exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant
in his appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero
of the American Bar," because during the American civil war he apparently
had the courage to nullify the proclamation of President Lincoln suspending
the privileges of the writ of habeas corpus in Ex parte Merryman (Federal
Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke
Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp.
778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777
in Calvert County, Maryland, of parents who were landed aristocrats as well
as slave owners. Inheriting the traditional conservatism of his parents who
belonged to the landed aristocracy, Taney became a lawyer in 1799,
practiced law and was later appointed Attorney General of Maryland. He also
was a member of the Maryland state legislature for several terms. He was a
leader of the Federalist Party, which disintegrated after the war of 1812,
compelling him to join the Democratic Party of Andrew Jackson, also a slave
owner and landed aristocrat, who later appointed him first as Attorney
General of the United States, then Secretary of the Treasury and in 1836
Chief Justice of the United States Supreme Court to succeed Chief Justice
John Marshall, in which position he continued for 28 years until he died on
October 21, 1864. His death "went largely unnoticed and unregretted."
Because he himself was a slave owner and a landed aristocrat, Chief Justice
Taney sympathized with the Southern States and, even while Chief Justice,
hoped that the Southern States would be allowed to secede peacefully from
the Union. That he had no sympathy for the Negroes was revealed by his
decision in Dred Scott vs. Sandford (19 How. 393 [1857]) where he
pronounced that the American Negro is not entitled to the rights of an
American citizen and that his status as a slave is determined by his
returning to a slave state. Once can therefore discern his hostility towards
President Lincoln when he decided Ex parte, Merryman, which animosity to
say the least does not befit a judicial mind. Such a man could hardly be
spoken of as a hero of the American Bar, least of all of the American nation.
The choice of heroes should not be expressed indiscriminately just to
embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical exuberance, when he
alluded to Marshal Ferdinand Foch as the "hero of Verdun". Nothing has
been said about Marshal Foch in the Encyclopedia Britannica (Vol. 9, 1969
ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica
(Vol. 17, Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal
Henri Philippe Petain as the genuine hero or "savior of Verdun"; because he
held Verdun against the 1916 offensive of the German army at the cost of
350,000 of his French soldiers, who were then demoralized and plotting
mutiny. Certainly, the surviving members of the family of Marshal Petain
would not relish the error. And neither would the members of the clan of
Marshal Foch acknowledge the undeserved accolade, although Marshal Foch
has a distinct place in history on his own merits. The foregoing clarification is
offered in the interest of true scholarship and historical accuracy, so that the
historians, researchers and students may not be led astray or be confused
by esteemed counsel's eloquence and mastery of the spoken and written
word as well as by his eminence as law professor, author of law books,
political leader, and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-
36164 did not address likewise his challenge to the five (5) senators who are
petitioners in L-36165 to also act as "heroes and idealists," to defy the
President by holding sessions by themselves alone in a hotel or in their
houses if they can muster a quorum or by causing the arrest of other
senators to secure a quorum and thereafter remove respondents Puyat and
Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most
vehemently in the justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or acquiesced in by the
people since January 18, 1973 until the present. The proclaimed conviction
of petitioners in L-36165 on this issue would have a ring of credibility, if they
proceeded first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he who exhorts
others to be brave must first demonstrate his own courage. Surely, they will
not affirm that the mere filing of their petition in L-36165 already made
them "heroes and idealists." The challenge likewise seems to insinuate that
the members of this Court who disagree with petitioners' views are
materialistic cowards or mercenary fence-sitters. The Court need not be
reminded of its solemn duty and how to perform it. WE refuse to believe that
petitioners and their learned as well as illustrious counsels, scholars and
liberal thinkers that they are, do not recognize the sincerity of those who
entertain opinions that clash with their own. Such an attitude does not sit
well with the dictum that "We can differ without being difficult; we can
disagree without being disagreeable," which distinguished counsel in L-
36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other
points raised by petitioners, which We do not find now necessary to deal
with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES
SHOULD BE DISMISSED.
Barredo, Antonio, and Esguerra, JJ., concur.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by
the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR
ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment or
the revised or new Constitution has been validly submitted to the people for
ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all the presumption of validity
to the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in
the new Constitution or amendment, although there was an illegal or
irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig.
935 [1934]; Hammond vs. Clark, 71 SE 479, 482-483; People vs. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb.
379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1,
68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81
Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs.
Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts
stressed that the constitutional amendment or the new Constitution should
not be condemned "unless in our judgment its nullity is manifest beyond
reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207
Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced
that the presumption of constitutionality must persist in the absence of
factual foundation of record to overthrow such presumption (Ermita-Malate
Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF
CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well
as independent of, the three grand departments of the Government, namely,
the legislative, the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as well
as form of the Charter that it proposes. It enjoys the same immunity from
interference or supervision by any of the aforesaid branches of the
Government in its proceedings, including the printing of its own journals
(Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8-
9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193).
Implicit in that independence, for the purpose of maintaining the same
unimpaired and in order that its work will not be frustrated, the Convention
has the power to fix the date for the plebiscite and to provide funds therefor.
To deny the Convention such prerogative, would leave it at the tender mercy
of both legislative and executive branches of the Government. An
unsympathetic Congress would not be disposed to submit the proposed
Constitution drafted by the Constitutional Convention to the people for
ratification, much less appropriate the necessary funds therefor. That could
have been the fate of the 1973 Constitution, because the same abolished
the Senate by creating a unicameral National Assembly to be presided by a
Prime Minister who wields both legislative and executive powers and is the
actual Chief Executive, for the President contemplated in the new
Constitution exercises primarily ceremonial prerogatives. The new
Constitution likewise shortened abruptly the terms of the members of the
present Congress (whose terms end on December 31, 1973, 1975 and 1977)
for it provides that the new Constitution shall take effect immediately upon
its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section
2 of the same Article XVII secures to the members of Congress membership
in the interim National Assembly as long as they opt to serve therein within
thirty (30) days after the ratification of the proposed Constitution, affords
them little comfort; because the convening of the interim National Assembly
depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973
Constitution). Under the foregoing circumstances, the members of Congress,
who were elected under the 1935 Constitution, would not be disposed to call
a plebiscite and appropriate funds therefor to enable the people to pass
upon the 1973 Constitution, ratification of which means their elimination
from the political scene. They will not provide the means for their own
liquidation.
Because the Constitutional Convention, by necessary implication as it
is indispensable to its independence and effectiveness, possesses the power
to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in the
estimation of the Convention can better determine the appropriate time for
such a referendum as well as the amount necessary to effect the same, for
which reason the Convention thru Resolution No. 29 approved on November
22, 1972, which superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a decree be issued calling a plebiscite
for the ratification of the proposed new Constitution on such appropriate
date as he shall determine and providing for the necessary funds therefor, . .
.," after stating in its "whereas" clauses that the 1971 Constitutional
Convention is expected to complete its work by the end of November, 1972,
that the urgency of instituting reforms rendered imperative the early
approval of the new Constitution, and that the national and local leaders
desire that there be continuity in the immediate transition from the old to
the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern
the power to promulgate subordinate rules and regulations to implement the
law, this authority to delegate implementing rules should not be denied to
the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional Convention
thru its Resolution No. 29, the organization of the Citizens' Assemblies for
consultation on national issues, is comprehended within the ordinance-
making power of the President under Section 63 of the Revised
Administrative Code, which expressly confers on the Chief Executive the
power to promulgate administrative acts and commands touching on the
organization or mode of operation of the government or re-arranging or re-
adjusting any district, division or part of the Philippines "or disposing of
issues of general concern . . . ." (Italics supplied). Hence, as consultative
bodies representing the localities including the barrios, their creation by the
President thru Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further need
of a plebiscite thereon, — both issues of national concern — is still within the
delegated authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution
No. 5843, does not prescribe that the plebiscite must be conducted by the
Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the
necessary phrase for the purpose, some such phrase like "to call a plebiscite
to be supervised by the Commission on Elections in accordance with the
provisions of the 1971 Revised Election Code (or with existing laws)." That
the Constitutional Convention omitted such phrase, can only mean that it
left to the President the determination of the manner by which the plebiscite
should be conducted, who shall supervise the plebiscite, and who can
participate in the plebiscite. The fact that said Resolution No. 29 expressly
states "that copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission on
Elections for implementation," did not in effect designate the Commission on
Elections as supervisor of the plebiscite. The copies of said resolution that
were transmitted to the Commission on Elections at best serve merely to
notify the Commission on Elections about said resolution, but not to direct
said body to supervise the plebiscite. The calling as well as conduct of the
plebiscite was left to the discretion of the President, who, because he is in
possession of all the facts funnelled to him by his intelligence services, was
in the superior position to decide when the plebiscite shall be held, how it
shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the
Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under martial
law by resolving to "propose to President Ferdinand E. Marcos that a decree
be issued calling a plebiscite . . ." The use of the term "decree" is significant;
for the basic orders regulating the conduct of all inhabitants are issued in
that form and nomenclature by the President as the Commander-in-Chief
and enforcer of martial law. Consequently, the issuance by the President of
Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor pursuant to said
Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule- making
power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power delegated, and
is beyond the competence of this Court to nullify. But even if adequate
criteria should be required, the same are contained in the "Whereas" clauses
of the Constitutional Convention Resolution No. 29, thus:
"WHEREAS, the 1971 Constitutional Convention is expected
to complete its work of drafting a proposed new Constitution for
the Republic by the end of November, 1972;
"WHEREAS, in view of the urgency of instituting reforms, the
early approval of the New Constitution has become imperative;
"WHEREAS, it is the desire of the national and local leaders
that there be continuity in the immediate political transition from
the old to the New Constitution;" (Annex "1" of Answer, Res. No.
29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio
and the writer concurred in the Plebiscite Cases, stated:
". . . Once its work of drafting has been completed, it could itself
direct the submission to the people for ratification as contemplated in
Article XV of the Constitution. Here it did not do so. With Congress not
being in session, could the President, by the decree under question,
call for such a plebiscite? Under such circumstances, a negative answer
certainly could result in the work of the Convention being rendered
nugatory. The view has been repeatedly expressed in many American
state court decisions that to avoid such undesirable consequence, the
task of submission becomes ministerial, with the political branches
devoid of any discretion as to the holding of an election for that
purpose. Nor is the appropriation by him of the amount necessary to be
considered as offensive to the Constitution. If it were done by him in his
capacity as President, such an objection would indeed have been
formidable, not to say insurmountable. If the appropriation were made
in his capacity as agent of the Convention to assure that there be
submission to the people, then such an argument loses force. The
Convention itself could have done so. It is understandable why it
should be thus. If it were otherwise, then a legislative body, the
appropriating arm of the government, could conceivably make use of
such authority to compel the Convention to submit to its wishes, on
pain of being rendered financially distraught. The President then, if
performing his role as its agent, could be held as not devoid of such
competence." (pp. 2-3, concurring opinion of J. Fernando in L-35925,
etc., italics supplied).
IV
VAGUENESS, INCOMPLETENESS AND OBJECTIONABLE PROVISIONS DO
NOT INVALIDATE THE 1973 CONSTITUTION.
(1) Petitioners challenge the 1973 draft as vague and incomplete,
and alluded to their arguments during the hearings on December 18 and 19,
1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. Dig., pp.
212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the
American Constitution, answering the critics of the Federal Constitution,
stated that: "I never expect to see a perfect work from imperfect man. The
result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and
wisdom, of the individuals of whom they are composed. The compacts which
are to embrace thirteen distinct States in a common bond of amity and
union, must necessarily be a compromise of as many dissimilar interests and
inclinations. How can perfection spring from such materials?" (The
Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that
it contains provisions which are ultra vires or beyond the power of the
Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of
government from Presidential to Parliamentary and including such provisions
as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12
of Article XVII in the 1973 Constitution.
Article IV —
"Sec. 3. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon
probable case to be determined by the judge, or such other responsible
officer as may be authorized by law , after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized."
Article XIV —
"Sec. 15. Any provision of paragraph one, Section fourteen,

Article Eight and of this Article notwithstanding, the Prime Minister may
enter into international treaties or agreements as the national welfare
and interest may require." (Without the consent of the National
Assembly.)
Article XVII —
"Sec. 3(2) All proclamations, orders, decrees, instructions,

and acts promulgated, issued, or done by the incumbent President
shall be part of the law of the land, and shall remain valid, legal,
binding and effective even after lifting of martial law or the ratification
of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts
of the incumbent President, or unless expressly and explicitly modified
or repealed by the regular National Assembly.
xxx xxx xxx
"Sec. 12. All treaties, executive agreements, and contracts

entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled
corporations, are hereby recognized as legal, valid and binding. When
the national interest so requires, the incumbent President of the
Philippines or the interim Prime Minister may review all contracts,
concessions, permits, or other forms of privileges for the exploration,
development, exploitation, or utilization of natural resources entered
into, granted, issued or acquired before the ratification of this
Constitution."
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948,

L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled
this objection, thus:
". . . Regardless of the wisdom and moral aspects of the
contested provisions of the proposed Constitution, it is my
considered view that the Convention was legally deem fit to
propose — save perhaps what is or may be insistent with what is
now known, particularly in international law, as Jus Cogens — not
only because the Convention exercised sovereign powers
delegated thereto by the people — although insofar only as the
determination of the proposals to be made and formulated by
said body is concerned — but also, because said proposals
cannot be valid as part of our Fundamental Law unless and until
'approved by the majority of the votes cast at an election which'
said proposals 'are submitted to the people for their ratification,'
as provided in Section 1 of Article XV of the 1935 Constitution."
(pp. 17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L- 32476,
Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has the
authority to "entirely overhaul the present Constitution and propose an
entirely new Constitution based on an ideology foreign to the democratic
system . . .; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no debate
about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: ". . . it
seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention . . ., is practically limitless" (citing
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch vs. Stoneman, 6 P
734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond vs. Clark,
71 SE 479, 136 Ga. 313 [1911]; Hamilton vs. Vaughan, 179 NW 533, 212
Mich. 31 [1920]; State vs. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; SchoolDistrict vs. City of
Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning, such
limitation of the scope of their function and objective was not in their minds."
V
1973 CONSTITUTION DULY ADOPTED AND PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention
adjourned on November 30, 1972 without officially promulgating the said
Constitution in Filipino as required by Sections 3 (1) of Article XV on General
Provisions of the 1973 Constitution. This claim is without merit because their
very Annex "M" is the Filipino version of the 1973 Constitution, and, like the
English version, contains the certification by President Diosdado Macapagal
of the Constitutional Convention, duly attested by its Secretary, that the
proposed Constitution was approved on second reading on the 27th day of
November, 1972 and on third reading in the Convention's 291st plenary
session on November 29, 1972 and accordingly signed on November 30,
1972 by the delegates whose signatures are thereunder affixed. It should be
recalled that Constitutional Convention President Diosdado Macapagal was,
as President of the Republic from 1962 to 1965, then the titular head of the
Liberal Party to which four (4) of the petitioners in L-36165 including their
counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE
FOR RATIFICATION OF 1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such
amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are
submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election called by Congress at which the
amendments are submitted for ratification by the qualified electors defined
in Article V hereof, supervised by the Commission on Elections in accordance
with the existing election law and after such amendments shall have been
published in all the newspapers of general circulation for at least four
months prior to such election."
This position certainly imposes limitation on the sovereign people, who
have the sole power of ratification, which imposition by the Court is never
justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained
and tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess — through some
kind of escamotage. This Court should not commit such a grave error in the
guise of judicial interpretation.
In all the cases where the court held that illegal or irregular
submission, due to absence of substantial compliance with the procedure
prescribed by the Constitution and/or the law nullifies the proposed
amendment or the new Constitution, the procedure prescribed by the state
Constitution is so detailed that it specifies that the submission should be at a
general or special election, or at the election for members of the State
legislature only or of all state officials only or of local officials only, or of both
state and local officials; fixes the date of the election or plebiscite limits the
submission to only electors or qualified electors; prescribes the publication of
the proposed amendment or a new Constitution for specific period prior to
the election or plebiscite, and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of the
ballot which should so state the substance of the proposed amendments to
enable the voter to vote on each amendment separately; or authorizes
expressly the Constitutional Convention or the legislature to determine the
procedure or certain details thereof. (See the State Constitutions of Alabama
[1901]; Arizona [1912]; Arkansas [1874]; Colorado [1876]; Connecticut
[1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa
[1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland [1867];
Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi
[1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
"Article XVIII. Mode of Amending the Constitution
"Sec. 284. Legislative Proposals. Amendments may be

proposed to this Constitution by the legislature in the manner
following: The proposed amendments shall be read in the house in
which they originate on three several days, and, if upon the third
reading three-fifths of all the members elected to that house shall vote
in favor thereof, the proposed amendments shall be sent to the other
house, in which they shall likewise be read on three several days, and
if upon the third reading three-fifths of all the members elected to that
house shall vote in favor of the proposed amendments, the legislature
shall order an election by the qualified electors of the state upon such
proposed amendments, to be held either at the general election next
succeeding the session of the legislature at which the amendments are
proposed or upon another day appointed by the legislature, not less
than three months after the final adjournment of the session of the
legislature at which the amendments were proposed. Notice of such
election , together with the proposed amendments, shall be given by
proclamation of the governor, which shall be published in every county
in such manner as the legislature shall direct, for at least eight
successive weeks next preceding the day appointed for such election .
On the day so appointed an election shall be held for the vote of the
qualified electors of the state upon the proposed amendments. If such
election be held on the day of the general election, the officers of such
general election shall open a poll for the vote of the qualified electors
upon the proposed amendments; if it be held on a day other than that
of a general election, officers for such election shall be appointed; and
the election shall be held in all things in accordance with the law
governing general elections. In all elections upon such proposed
amendments, the votes cast thereat shall be canvassed, tabulated,
and returns thereof be made to the secretary of state, and counted, in
the same manner as in elections for representatives to the legislature;
and if it shall thereupon appear that a majority of the qualified electors
who voted at such election upon the proposed amendments voted in
favor of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such election shall
be made known by proclamation of the governor. Representation in the
legislature shall be based upon population, and such basis of
representation shall not be changed by constitutional amendments.
"Sec. 285. Form of ballot for amendment. Upon the ballots

used at all elections provided for in Section 284 of this Constitution, the
substance or subject matter of each proposed amendment shall be so
printed that the nature thereof shall be clearly indicated. Following
each proposed amendment on the ballot shall be printed the word
"Yes" and immediately under that shall be printed the word "No". The
choice of the elector shall be indicated by a cross mark made by him or
under his direction, opposite the word expressing his desire, and no
amendment shall be adopted unless it receives the affirmative vote of
a majority of all the qualified electors who vote at such election."
Constitution of Arkansas (1874):
"Article XIX. Miscellaneous Provisions.
"Sec. 22. Constitutional amendments. Either branch of the

General Assembly at a regular session thereof may propose
amendments to this Constitution, and, if the same be agreed to by a
majority of all the members elected to each house, such proposed
amendments shall be entered on the journal with the yeas and nays,
and published in at least one newspaper in each county, where a
newspaper is published, for six months immediately preceding the next
general election for Senators and Representatives, at which time the
same shall be submitted to the electors of the State for approval or
rejection; and if a majority of the electors voting at such election adopt
such amendments the same shall become a part of this Constitution;
but no more than three amendments shall be proposed or submitted at
the same time. They shall be so submitted as to enable the electors to
vote on each amendment separately."
Constitution of Kansas (1861):
"Article XIV. Amendments.
"Sec. 1. Proposal of amendments; publications; elections.

Propositions for the amendment of this constitution may be made by
either branch of the legislature; and if two-thirds of all the members
elected to each house shall concur therein, such proposed
amendments, together with the yeas and nays, shall be entered on the
journal; and the secretary of state shall cause the same to be
published in at least one newspaper in each county of the state where
a newspaper is published, for three months preceding the next election
for representatives, at which time, the same shall be submitted to the
electors, for their approval or rejection; and if a majority of the electors
voting on said amendments, at said election, shall adopt the
amendments, the same shall become a part of the constitution. When
more than one amendment shall be submitted at the same time, they
shall be so submitted as to enable the electors to vote on each
amendment separately; and not more than three propositions to
amend shall be submitted at the same election."
Constitution of Maryland (1867):
"Article XIV. Amendments to the Constitution.
"Sec. 1. Proposal in general assembly; publication;

submission to voters; governor's proclamation. The General Assembly
may propose Amendments to this Constitution; provided that each
Amendment shall be embraced in a separate bill, embodying the
Article or Section, as the same will stand when amended and passed
by three-fifths of all the members elected to each of the two Houses,
by yeas and nays, to be entered on the Journals with the proposed
Amendment. The bill or bills proposing amendment or amendments
shall be published by order of the Governor, in at least two
newspapers, in each County, where so many may be published, and
where not more than one may be published, then in the newspaper,
and in three newspapers published in the City of Baltimore, once a
week for four weeks immediately preceding the next ensuing general
election, at which the proposed amendment or amendments shall be
submitted, in a form to be prescribed by the General Assembly, to the
qualified voters of the State for adoption or rejection. The votes cast for
and against said proposed amendment or amendments, severally, shall
be returned to the Governor, in the manner prescribed in other cases,
and if it shall appear to the Governor that a majority of the votes cast
at said election on said amendment or amendments, severally, were
cast in favor thereof, the Governor shall, by his proclamation, declare
the said amendment or amendments having received said majority of
votes, to have been adopted by the people of Maryland as part of the
Constitution thereof, and thenceforth said amendment or amendments
shall be part of the said Constitution. When two or more amendments
shall be submitted in the manner aforesaid, to the voters of this State
at the same election, they shall be so submitted as that each
amendment shall be voted on separately."
Constitution of Missouri (1945):
"Article XII. Amending the Constitution.
"Sec. 2(b). Submission of amendments proposed by general

assembly or by the initiative. All amendments proposed by the general
assembly or by the initiative shall be submitted to the electors for their
approval or rejection by official ballot title as may be provided by law,
on a separate ballot without party designation, at the next general
election, or at a special election called by the governor prior thereto, at
which he may submit any of the amendments. No such proposed
amendment shall contain more than one amended and revised article
of this constitution, or one new article which shall not contain more
than one subject and matters properly connected therewith. If possible,
each proposed amendment shall be published once a week for two
consecutive weeks in two newspapers of different political faith in each
county, the last publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but one newspaper
in any county, publication of four consecutive weeks shall be made. If a
majority of the votes cast thereon is in favor of any amendment, the
same shall take effect at the end of thirty days after the election. More
than one amendment at the same election shall be so submitted as to
enable the electors to vote on each amendment separately."
Article XV of the 1935 Constitution does not require a specific

procedure, much less a detailed procedure for submission or ratification. As
heretofore stated, it does not specify what kind of election at which the new
Constitution shall be submitted; nor does it designate the Commission on
Elections to supervise the plebiscite. Neither does it limit the ratification to
the qualified electors as defined in Article V of the 1935 Constitution. Much
less does it require the publication of the proposed Constitution for any
specific period before the plebiscite; nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for
submission of the proposed Constitution to the people for ratification. It does
not make any reference to the Commission on Elections as the body that
shall supervise the plebiscite. And Article XV could not make any reference
to the Commission on Elections; because the original 1935 Constitution as
ratified on May 14, 1935 by the people did not contain Article X on the
Commission on Elections, which article was included therein pursuant to an
amendment by the National Assembly proposed only about five (5) years
later — on April 11, 1940, ratified by the people on June 18, 1940 and
approved by the President of the United States on December 2, 1940 (see
Sumulong vs. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const.
Law, 1966 ed., p. 13). So it cannot be said that the original framers of the
1935 Constitution as ratified on May 14, 1935 intended that a body known
as the Commission on Elections should be the one to supervise the
plebiscite, because the Commission on Elections was not in existence then
as it was created only by Commonwealth Act No. 607 approved on August
22, 1940 and amended by Commonwealth Act No. 657 approved on June 21,
1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed.,
pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288,
290-300; Tañada & Fernando, Constitution of the Philippines, 1953 ed., Vol.
I, p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Elections was not yet
in existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on
the 1937 amendment on woman's suffrage, the 1939 amendment to the
Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of
the U.S. Congress) and the three 1940 amendments on the establishment of
a bicameral Congress, the re-election of the President and the Vice-
President, and the creation of the Commission on Elections (ratified on June
18, 1940). The supervision of said plebiscites by the then Department of
Interior was not axiomatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on
Elections should also supervise the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the corresponding
amendment to Article XV by providing therein that the plebiscite on
amendments shall be supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying
the same on May 14, 1935 wanted that only the qualified voters under
Article V of the 1935 Constitution should participate in the referendum on
any amendment or revision thereof, they could have provided the same in
1935 or in the 1940 amendment by just adding a few words to Article XV by
changing the last phrase to "submitted for ratification to the qualified
electors as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution; because the said term "people" as used in several provisions of
the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term "Filipino people" refers, to all Filipino citizens of all ages
of both sexes. In Section 1 of Article II on the Declaration of Principles, the
term "people" in whom sovereignty resides and from whom all government
authority emanates, can only refer also to Filipino citizens of all ages and of
both sexes. But in Section 5 of the same Article II on social justice, the term
"people" comprehends not only Filipino citizens but also all aliens residing in
the country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III on
the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a
right to the electorate, it does so expressly as in the case of the election of
senators and congressmen. Section 2, Article VI expressly provides that the
senators "shall be chosen at large by the qualified electors of the Philippines
as may be provided by law." Section 5 of the same Article VI specifically
provides that congressmen shall "be elected by the qualified electors." The
only provision that seems to sustain the theory of petitioners that the term
"people" in Article XV should refer to the qualified electors as defined in
Article V of the 1935 Constitution is the provision that the President and
Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art.
VII of the 1935 Constitution). But this alone cannot be conclusive as to such
construction; because of the explicit provisions of Sections 2 and 5 of Article
VI, which specifically prescribes that the senators and congressmen shall be
elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the
United States, specifically delineate in detail the procedure of ratification of
amendments to or revision of state Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending
Process of the 1934-35 Constitutional Convention, specified that the
amendment shall be submitted to qualified electors for ratification. This
proposal was not accepted, indicating that the 1934-35 Constitutional
Convention did not intend to limit the term "people" in Article XV of the 1935
Constitution to qualified electors only. As above demonstrated, the 1934-35
Constitutional Convention limits the use of the term "qualified electors" to
elections of public officials. It did not want to tie the hands of succeeding or
future constitutional conventions as to who should ratify the proposed
amendments or revision.
(4) It is not exactly correct to opine that Article XV of 1935
Constitution on constitutional amendment contemplates the automatic
applicability of election laws to plebiscites on proposed constitutional
amendments or revision.
The very phraseology of the specific laws enacted by the National
Assembly and later by Congress, indicates that there is need of a statute
expressly authorizing the application of the election laws to plebiscites of
this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment
enacted on September 30, 1936, consists of 12 sections and, aside from
providing that "there shall be held a plebiscite on Friday, April 30, 1937, on
the question of woman's suffrage . . . and that said amendment shall be
published in the Official Gazette in English and Spanish for three consecutive
issues at least fifteen (15) days prior to said election, . . . and shall be posted
in a conspicuous place in its municipal and provincial office building and in
its polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding the holding of a
special election, insofar as said provisions are not in conflict with it, should
apply to the said plebiscite (Sec. 3, Com. Act No. 34); and that the votes cast
according to the returns of the board of inspectors shall be counted by the
National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections
392-483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on
August 22, 1938, makes it expressly applicable to plebiscites. Yet the
subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73
calling for the plebiscite on the constitutional amendments in 1939, 1940
and 1946, including the amendment creating the Commission on Elections,
specifically provided that the provisions of the existing election law shall
apply to such plebiscites insofar as they are not inconsistent with the
aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling
for a plebiscite on the proposed amendments to the Constitution adopted by
the National Assembly on September 15, 1939, consists of 8 sections and
provides that the proposed amendments to the Constitution adopted in
Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino
people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the
amendments to the said Constitution proposed in "Res. No. 38, adopted on
the same date, shall be submitted at the following election of local officials,"
(Sec. 1, Com. Act No. 492); that the said amendments shall be published in
English and Spanish in three consecutive issues of the Official Gazette at
least ten (10) days prior to the election; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act No. 492); that the election
shall be conducted according to the provisions of the Election Code insofar
as the same may be applicable; that within thirty (30) days after the
election, the Speaker of the National Assembly shall request the President to
call a special session of the Assembly for the purpose of canvassing the
returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 617, consisting of 11 sections, was approved
on April 25, 1940 and provided, among others: that the plebiscite on the
constitutional amendments providing for a bicameral Congress, re- election
of the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that
said amendments shall be published in three consecutive issues of the
Official Gazette in English and Spanish at least 20 days prior to the election
and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in
conformity with the Election Code insofar as the same may be applicable
(Sec. 3); that copies of the returns shall be forwarded to the Secretary of
National Assembly and the Secretary of Interior (Sec. 7); and that the
National Assembly shall canvass the returns and certify the results at a
special session to be called by the President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a
plebiscite on the parity amendment consists of 8 sections provides that the
Amendment "shall be submitted to the people, for approval or disapproval,
at a general election which shall be held on March 11, 1947, in accordance
with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said
amendment shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least 20 days prior to the election; that
copies of the same shall be posted in a conspicuous place and in every
polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that
the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657
creating the Commission on Elections, shall apply to the election insofar as
they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within
30 days after the election, the Senate and House of Representatives shall
hold a joint session to canvass the returns and certify the results thereof
(Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic application of
the election law; and even at that, not all the provisions of the election law
were made applicable because the various laws aforecited contain several
provisions which are inconsistent with the provisions of the Revised Election
Code (Com. Act No. 357). Moreover, it should be noted that the period for
the publication of the copies of the proposed amendments was about 10
days, 15 days or 20 days, and for posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (Sec. 2, R.A. No. 180, as amended,
and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of
the 1935 Constitution, there would be no need for Congress to expressly
provide therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can
vote and how they shall vote. Unlike the various State Constitutions of the
American Union (with few exceptions), Article XV does not state that only
qualified electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very
detailed amending process and specify that only qualified electors can vote
at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as
the Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly to
include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4,
R.A. No. 3590).
"Sec. 4. The barrio assembly. — The barrio assembly shall

consist of all persons who are residents of the barrio for at least six
months, eighteen years of age or over, citizens of the Republic of the
Philippines and who are duly registered in the list of barrio assembly
members kept by the Barrio Secretary.
"The barrio assembly shall meet at least once a year to hear the
annual report of the barrio counsel concerning the activities and
finances of the barrio.
"It shall meet also at the call of the barrio council or upon written
petition of at least One-Tenth of the members of the barrio assembly.
"No meeting of the barrio assembly shall take place unless notice
is given one week prior to the meeting except in matters involving
public safety or security in which case notice within a reasonable time
shall be sufficient. The barrio captain, or in his absence, the
councilman acting as barrio captain, or any assembly member selected
during the meeting, shall act as presiding officer at all meetings of the
barrio assembly. The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary shall discharge
the duties of secretary of the barrio assembly.
"For the purpose of conducting business and taking any official

action in the barrio assembly, it is necessary that at least one-fifth of
the members of the barrio assembly be present to constitute a quorum.
All actions shall require a majority vote of these present at the meeting
there being a quorum.
"Sec. 5. Powers of the barrio assembly. — The powers of the

barrio assembly shall be as follows:
"a. To recommend to the barrio council the adoption of

measures for the welfare of the barrio;
"b. To decide on the holding of a plebiscite as provided
for in Section 6 of this Act;
"c. To act on budgetary and supplemental
appropriations and special tax ordinances submitted for its
approval by the barrio council; and
"d. To hear the annual report of the barrio council
concerning the activities and finances of the assembly.
"Sec. 6. Plebiscite. — A plebiscite may be held in the barrio

when authorized by a majority vote of the members present in the
barrio assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite
shall be held until after thirty days from its approval by either body,
and such plebiscite has been given the widest publicity in the barrio,
stating the date, time, and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite.
"All duly registered barrio assembly members qualified to vote

may vote in the plebiscite. Voting procedures may be made either in
writing as in regular election, and/or declaration by the voters to the
board of election tellers. The board of election tellers shall be the same
board envisioned by Section 8, paragraph 2 of this Act, in case of
vacancies in this body, the barrio council may fill the same.
"A plebiscite may be called to decide on the recall of any

member of the barrio council. A plebiscite shall be called to approve
any budgetary, supplemental appropriations or special tax ordinances.
"For taking action on any of the above enumerated measures,

majority vote of all the barrio assembly members registered in the list
of barrio secretary is necessary.
xxx xxx xxx
"Sec. 10. Qualifications of voters and candidates. — Every

citizen of the Philippines, twenty-one years of age or over, able to read
and write, who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters
kept by the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.
"The following persons shall not be qualified to vote:
"a. Any person who has been sentenced by final

judgment to suffer one year or more of imprisonment, within two
years after service of his sentence;
"b. Any person who has violated his allegiance to the
Republic of the Philippines; and
"c. Insane or feeble-minded persons."
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any member of
the barrio council or on any budgetary, supplemental appropriation, or
special tax ordinances, a valid action on which requires "a majority vote of
all of the barrio assembly members registered in the list of the barrio
secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized
by a majority vote of the members present in the barrio assembly, there
being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,
who are at least 21 years of age, able to read and write, residents of the
barrio during the 6 months immediately preceding the election and duly
registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides
that "voting procedures may be made xxx either in writing as in regular
elections, and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered
barrio assembly members qualified to vote may vote in the plebiscite,"
cannot sustain the position of petitioners in G.R. No. L- 36165 that only those
who are 21 years of age or above and who possess all other qualifications of
a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites
referred to in Section 6; because paragraph 3 of Section 6 does not
expressly limit the voting to those with the qualifications under Section 10 as
said Section 6 does not distinguish between those who are 21 or above on
the one hand and those 18 or above but below 21 on the other, and whether
literate or not, to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years of
age or above; and that only those who are 21 years of age or over and can
read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or not.
Republic Act No. 3590 could simply have restated Section 4 of Republic Act
No. 2370, the old Barrio Charter, which provided that only those who are 21
and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L- 36165
and two of the petitioners in L-36164 participated in the enactment of
Republic Act No. 3590 and should have known the intendment of Congress in
expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year-old as qualified electors for barrio
plebiscites, this prerogative can also be exercised by the Chief Executive as
delegate of the Constitutional Convention in regard to the plebiscite on the
1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the presumption
of correctness; because the same was based on the certification by the
Secretary of the Department of Local Government and Community
Development who tabulated the results of the referendum all over the
country. The accuracy of such tabulation and certification by the said
Department Secretary should likewise be presumed; because it was done in
the regular performance of his official functions aside from the fact that the
act of the Department Secretary, as an alter ego of the President, is
presumptively the act of the President himself unless the latter disapproves
or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451). The
truth of the certification by the Department Secretary and the Chief
Executive on the results of the referendum, is further strengthened by the
affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor
Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Paredes of
Quezon City.
The procedure for the ratification of the 1937 amendment on woman
suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for two consecutive
terms for the President, and the 1947 parity amendment, cannot be invoked;
because those amendments were proposed by the National Assembly as
expressly authorized by Article V of the 1935 Constitution respecting woman
suffrage and as a constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also the authority to
prescribe the procedure for the submission of the proposed amendments to
the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an
independent Constitutional Convention, which as heretofore discussed, has
the equal power to prescribe the modality for the submission of the 1973
Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor
Norberto Amoranto could be utilized as the basis for the extrapolation of the
Citizens' Assemblies in all the other provinces, cities and municipalities, and
the affirmative votes in the Citizens' Assemblies resulting from such
extrapolation would still constitute a majority of the total votes cast in favor
of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in Rizal
there were 1,126,000 Yes votes and 100,310 No votes, the certification of
Governor Isidro Rodriguez of Rizal, shows that of 614,157 registered
electors, only 292,530 actually voted. 101 In Cavite province, there were
249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of
respondents' Compliance (the certification by the Department of Local
Government and Community Development), while the alleged certification of
Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No
votes. If such a ratio is extended by way of extrapolation to the other
provinces, cities and towns of the country, the result would still be an
overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not
true; because in his duly acknowledged certification dated March 16, 1973,
he states that since the declaration of martial law and up to the present
time, he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens'
Assemblies on January 10-15, 1973 in the province of Cavite; that the acting
chairman and coordinator of the Citizens' Assemblies at that time was Vice-
Governor Dominador Camerino; and that he was shown a letter for his
signature during the conduct of the Citizens' Assemblies, which he did not
sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of
the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16,
1973 stating that on January 15, 1973, he caused the preparation of a letter
addressed to Secretary Jose Roño of the Department of Local Government
and Community Development showing the results of the referendum in
Pasay City; that on the same day, there were still many Citizens' Assemblies
holding referendum in Pasay City, for which reason he did not send the
aforesaid letter pending submittal of the other results from the said Citizens'
Assemblies; and that in the afternoon of January 15, 1973, he indorsed the
complete certificate of results on the referendum in Pasay City to the Office
of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of
Pasay City also issued an affidavit dated March 15, 1973 stating that a
certain Atty. Delia Sutton of the Salonga Law Office asked him for the results
of the referendum; that he informed her that he had in his possession
unsigned copies of such results which may not be considered official as they
had then no knowledge whether the original thereof had been signed by the
mayor; and that in spite of his advice that said unsigned copies were not
official, she requested him if she could give her the unofficial copies thereof,
which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the
Citizens' Assemblies of Quezon City (Annex V to Petitioners' Notes in L-
36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio
treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states
that "as far as we know, there has been no Citizens' Assembly meeting in
our Area, particularly in January of this year," does not necessarily mean that
there was no such meeting in said barrio; for she may not have been notified
thereof and as a result she was not able to attend said meeting. Much less
can it be a basis for the claim that there was no meeting at all in the other
barrios of Quezon City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon
City Ratification and Coordinating Council, certified on March 12, 1973 that
as such chairman he was in charge of the compilation and tabulation of the
results of the referendum among the Citizens' Assemblies in Quezon City
based on the results submitted to the Secretariat by the different Citizens'
Assemblies; but many results of the referendum were submitted direct to
the national agencies having to do with such activity and all of which he has
no knowledge, participation and control (Annex 4-Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March
16, 1973 that he prepared a letter to the President dated January 15, 1973
informing him of the results of the referendum in Rizal, in compliance with
the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies; that
the figures 614,157 and 292,530 mentioned in said letter were based on the
certificates of results in his possession as of January 14, 1973, which results
were made the basis of the computation of the percentage of voting trend in
the province; that his letter was never intended to show the final or
complete result in the referendum in the province as said referendum was
then still going on from January 14-17, 1973, for which reason the said letter
merely stated that it was only a "summary result; and that after January 15,
1973, he sent to the National Secretariat all the certificates of results in 26
municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol.
Gen.; italics supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department
of Local Government and Community Development, issued a certificate
dated March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and
marked "Rejoinder Annex Cavite" addressed to the President of the
Philippines through the Secretary of the Department of Local Government
and Community Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex
Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the
unsigned letters contain figures showing the results of the referendum of the
Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such documents
received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to
deceive this Court by representing said unsigned letters and/or certificates
as duly signed and/or containing the complete returns of the voting in the
Citizens' Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged report
of Governor Lino Bocalan of Cavite who repudiated the same as not having
been signed by him for he was then under house arrest, on the one hand,
and the number of votes certified by the Department of Local Government
and Community Development, on the other, to the effect that even assuming
the correctness of the figures insisted on by counsel for petitioners in L-
36165, if the same were extrapolated and applied to the other provinces and
cities of the country, the Yes votes would still be overwhelmingly greater
than the No votes, applies equally to the alleged discrepancy between the
figures contained in the certification of the Secretary of the Department of
Local Government and Community Development and the figures furnished to
counsel for petitioners in L-36165 concerning the referendum in Camarines
Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines
Sur, shows that there were more votes in favor of a plebiscite to be held
later than those against, only serves to emphasize that there was freedom of
voting among the members of the Citizens' Assemblies all over the country
during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur
to Rejoinder of Petitioners in L-36165). If there was no such freedom of
choice, those who wanted a plebiscite later would not outnumber those
against holding such plebiscite.

The letter of Governor Felix O. Alfelor, Sr. dated January 14, 1973
confirms the "strong manifestation of approval of the new Constitution by
almost 97% by the members of the Citizens' Assemblies in Camarines Sur"
(Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the
members of the Citizens' Assemblies voted overwhelmingly in favor of the
new Constitution despite the fact that the second set of questions including
the question "Do you approve of the new Constitution?" was received only
on January 10. Provincial Governor Pascual stated that the "orderly conduct
and favorable results of the referendum" were due not only to the
coordinated efforts and cooperation of all teachers and government
employees in the area but also to the enthusiastic participation by the
people, showing "their preference and readiness to accept this new method
of government to people consultation in shaping up government policies."
(Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution ( Bott vs. Wurts, 40 A 740 [1898]; 43
A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in
the referendum in certain localities may exceed the number of voters
actually registered for the 1971 elections, can only mean that the excess
represents the qualified voters who are not yet registered including those
who are at least 15 years of age and the illiterates. Although ex-convicts may
have voted also in the referendum, some of them might have been granted
absolute pardon or were sentenced to less than one year imprisonment to
qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-
convicts constitute a negligible number, discounting which would not tilt the
scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973 that
he does not "feel authorized by the proper authorities to confirm or deny the
data" concerning the number of participants, the Yes votes and No votes in
the referendum on the new Constitution among the members of the Citizens'
Assemblies in Caloocan City, does not necessarily give rise to the inference
that Mayor Samson of Caloocan City is being intimidated, having been
recently released from detention; because in the same letter of Mayor
Samson, he suggested to counsel for petitioners in L-36165 that he can
secure "the true and legitimate results of the referendum" from the Office of
the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why
did not learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies
heavily on the computation of the estimated turnover in the Citizens'
Assemblies referendum on January 10 to 15, 1973 by a certain Professor
Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a
close relative of former Senator Jovito R. Salonga, eminent counsel for
petitioners in L-36165 (Annex M-as amended, to Consolidated Rejoinder of
petitioners in L-36165 to the Notes of Arguments and Memorandum of
respondents). Professor Salonga is not a qualified statistician, which all the
more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his
letter dated March 16, 1973 addressed to the Secretary of the Department
of Local Government and Community Development, refutes the said
computation of Professor Benjamin R. Salonga, thus:
"1) I do not quite understand why (Problem I) all qualified

registered voters and the 15-20-year-old youths (1972) will have to be
estimated in order to give a 101.9% estimate of the percentage
participation of the '15-20 year old plus total number of qualified
voters' which does not deem to answer the problem. This computation
apparently fails to account for some 5.6 million persons '21 years old
and over' who were not registered voters (COMELEC), but who might
be qualified to participate at the Citizen's Assembly.
"2) The official population projection of this office (medium

assumption) for '15 year olds and over' as of January 1, 1973 is 22.506
million. If total number of participants at the Citizens' Assembly
Referendum held on January 10-15, 1973 was 16.702 million,
participation rate will therefore be the ratio of the latter figure to the
former which gives 74.2%.
"3) I cannot also understand c-2 'Solution to Problem 11.'

The 'difference or implied number of 15-20 years old' of 5,039,906
would represent really not only all 15 years old and over who
participated at the Citizens' Assembly but might not have been
registered voters at the time, assuming that all the 11,661,909
registered voted at the Citizens' Assembly. Hence, the 'estimate
percentage participation of 15-20 years old' of 105.6% does not
seem to provide any meaningful information.
"To obtain the participation rate of '15-20 years old' one
must divide the number in this age group, which was estimated to
be 4.721 million as of January 1, 1973 by the population of '15
years old and over' for the same period which was estimated to be
22.506 million, giving 21.0%.
"In Problem III, it should be observed that registered voters
also include names of voters who are already dead. It cannot
therefore be assumed that all of them participated at the Citizens'
Assembly. It can therefore be inferred that 'a total number of
persons 15 and over unqualified/disqualified to vote' will be more
than 10,548,197 and hence the 'difference or implied number of
registered voters that participated' will be less than 6,153,618.
"I have reservations on whether an 'appropriate number of
qualified voters that supposedly voted' could be meaningfully
estimated.
"5) The last remark will therefore make the ratio: (a)
[Solution to Problem] more than 1.71 and that for (b), accordingly,
will also be less than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as
of January 21, 1973, the official population projection for 15-year old and
over is 22,506,000. If 16,702,000 voted in the referendum, the participation
ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971
numbered 11,661,909, the difference between 16,702,000 who participated
in the referendum and the registered electors of 11,661,909 for the
November 8, 1971 elections, is 5,040,091, which may include not only the
15-year old and above but below 21 but also the qualified electors who were
not registered before the November 8, 1971 elections as well as illiterates
who are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We
found that the incumbent President obtained over 5,000,000 votes as
against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr.,
garnering a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs.
Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification
that those who voted for the incumbent President in 1969 did not vote in
favor of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President
in the 1969 Presidential elections, have several members in their families
and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should necessarily
augment the number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is
necessarily inconsistent with freedom of choice, because the people fear to
disagree with the President as Commander-in-Chief of the Armed Forces of
the Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its
ratification.
It is also claimed or urged that there can be no free choice during
martial law which inevitably generates fear in the individual. Even without
martial law, the penal, civil or administrative sanction provided for the
violation of the law ordinarily engenders fear in the individual which fear
persuades the individual to comply with or obey the law. But before martial
law was proclaimed, many individuals did not fear such sanctions of the law
because of lack of effective or equal enforcement or implementation thereof
— in brief, compartmentalized justice and extraneous pressures and
influences frustrated the firm and just enforcement of the laws. The fear that
is generated by martial law is merely the fear of immediate execution and
swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed
during the period of martial law. This is not the fear that affects the voters'
freedom of choice or freedom to vote for or against the 1973 Constitution.
Those who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or
raising of hands violates the secrecy of the ballot as secured by the election
laws. But the 1935 Constitution does not require secret voting. We search in
vain for such guarantee or prescription in said organic law. The Commission
on Elections under the 1940 Amendment, embodied as Article X is merely
mandated to insure "free, orderly and honest election." Congress, under its
plenary law-making authority, could have validly prescribed in the election
law open voting in the election of public officers, without trenching upon the
Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was demanded
by partisan strife in elections for elective officials. Partisanship based on
party or personal loyalties does not generally obtain in a plebiscite on
proposed constitutional amendments or on a new Constitution. We have
seen even before and during martial law that voting in meetings of
government agencies or private organizations is usually done openly. This is
specially true in sessions of Congress, provincial boards, city councils,
municipal boards and barrio councils when voting on national or local issues,
not on personalities.
Then again, open voting was not a universal phenomenon in the
Citizens' Assemblies. It might have been true in certain areas, but that does
not necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3,
1973 of the National Press Club officers who were elected by acclamation
presided over by its former president, petitioner Eduardo Monteclaro in L-
36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more
hardboiled group of persons than newspapermen, who cannot say that
voting among them by acclamation was characterized by fear among the
members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the
members of the citizenry of this country are against the new Constitution.
They will not deny that there are those who favor the same, even among the
400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver,
pedestrian, salesman, or salesgirl — does not want the new Constitution, or
the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity
given to the new Constitution. This is quite inaccurate; because even before
the election in November, 1970 of delegates to the Constitutional
Convention, the proposed reforms were already discussed in various forums
and through the press as well as other media of information. Then after the
Constitutional Convention convened in June, 1971, specific reforms
advanced by the delegates were discussed both in committee hearings as
well as in the tri-media — the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June,
1971 to November 29, 1972, reforms were openly discussed and debated
except for a few days after the proclamation of martial law on September
21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution
were debated and discussed in forums sponsored by private organizations
and universities and debated over the radio and on television. The
Philippines is a literate country, second only to Japan in the Far East, and
more literate perhaps than many of mid-western and southern states of the
American Union and Spain. Many residents in about 1,500 towns and 33,000
barrios of the country have radios. Even the illiterates listened to radio
broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist Teodoro
Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto Lang,
Hollywood producer-director (Tora, Tora, Tora) went around the country
doing a 30-minute documentary on the Philippines for American television
and stated that what impressed him most in his travel throughout the
country was the general acceptance of the New Society by the people which
he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and
Daily Express, March 3, and Sunday Express, March 4), Secretary of the
United States Senate, who conducted a personal survey of the country as
delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippine
Relations, states:
"Martial law has paved the way for a re-ordering of the basic
social structure of the Philippines. President Marcos has been
prompt and sure-footed in using the power of presidential decree
under martial law for this purpose. He has zeroed in on areas
which have been widely recognized as prime sources of the
nation's difficulties — land tenancy, official corruption, tax evasion
and abuse of oligarchic economic power. Clearly, he knows the
targets. What is not yet certain is how accurate have been his
shots. Nevertheless, there is marked public support for his
leadership and tangible alternatives have not been forthcoming.
That would suggest that he may not be striking too far from the
mark.
"The United States business community in Manila seems to
have been re-assured by recent developments . . . . (Italics
supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the
country, who constitute the majority of the population, do not like the
reforms stipulated in the new Constitution, as well as the decrees, orders
and circulars issued to implement the same. It should be recalled, as
hereinbefore stated, that all these reforms were the subject of discussion
both in the committee hearings and on the floor of the Constitutional
Convention, as well as in public forums sponsored by concerned citizens or
civic organizations at which Con-Con delegates as well as other
knowledgeable personages expounded their views thereon and in all the
media of information before the proclamation of martial law on September
21, 1972. This is the reason why the Constitutional Convention, after
spending close to P30 million during the period from June 1, 1971 to
November 29, 1972, found it expedient to accelerate their proceedings in
November, 1972 because all views that could possibly be said on the
proposed provisions of the 1973 Constitution were already expressed and
circulated. The 1973 Constitution may contain some unwise provisions. But
this objection to such unwise or vague provisions, as heretofore stated,
refers to the wisdom of the aforesaid provisions, which issue is not for this
Court to decide; otherwise We will be substituting Our judgment for the
judgment of the Constitutional Convention and in effect acting as a
constituent assembly.
VI
PRESIDENT AS COMMANDER-IN-CHIEF EXERCISES LEGISLATIVE POWERS
DURING MARTIAL LAW.
The position of the respondent public officers that under martial law,
the President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83
Phil. 171, 177-178), which reiterates the 1945 case of Yamashita vs. Styer
(75 Phil. 563, 571-72). The trial of General Kuroda was after the surrender of
Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
more martial law in the Philippines.
". . . Consequently, in the promulgation and enforcement of
Executive Order No. 68, the President of the Philippines has acted
in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
"The promulgation of said executive order is an exercise by
the President of his powers as Commander-in-Chief of all our
armed forces, as upheld by this Court in the case of Yamashita vs.
Styer (L-129, 42 Off. Gaz., 664) when we said —
" 'War is not ended simply because hostilities have
ceased. After cessation of armed hostilities, incidents of war
may remain pending which should be disposed of as in time
of war. 'An important incident to a conduct of war is the
adoption of measures by the military command not only to
repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to
thwart or impede our military effort have violated the law of
war. ' (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed,
the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war.
And, in the language of a writer, a military commission 'has
jurisdiction so long as a technical state of war continues.
This includes the period of an armistice, or military
occupation, up to the effective date of a treaty of peace, and
may extend beyond, by treaty agreement.' (Cowles, Trial of
War Criminals by Military Tribunals, American Bar
Association Journal, June, 1944).'
''Consequently, the President as Commander-in-Chief is fully
empowered to consummate this unfinished aspect of war, namely,
the trial and punishment of war criminals, through the issuance
and enforcement of Executive Order No. 68." (83 Phil. 177-178;
italics supplied).
Chief Justice Stone of the United States Supreme Court likewise
appears to subscribe to this view, when, in his concurring opinion in Duncan
vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the
exercise of the power which resides in the executive branch of the
government to preserve order and insure the public safety in times of
emergency, when other branches of the government are unable to function,
or their functioning would itself threaten the public safety. " (Italics supplied).
There is an implied recognition in the aforesaid definition of martial law that
even in places where the courts can function, such operation of the courts
may be affected by martial law should their "functioning . . . threaten the
public safety. " It is possible that the courts, in asserting their authority to
pass upon questions which may adversely affect the conduct of the punitive
campaign against rebels, secessionists, dissidents as well as subversives,
martial law may restrict such judicial function until the danger to the security
of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
"Finally, this strong government, which in some instances
might become an outright dictatorship, can have no other
purposes than the preservation of the independence of the state,
the maintenance of the existing constitutional order, and the
defense of the political and social liberties of the people . It is
important to recognize the true and limited ends of any practical
application of the principle of constitutional dictatorship. Perhaps
the matter may be most clearly stated in this way: the
government of a free state is proceeding on its way and meeting
the usual problems of peace and normal times within the limiting
framework of its established constitutional order. The functions of
government are parceled out among a number of mutually
independent offices and institutions; the power to exercise those
functions is circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this
government was instituted are in possession of a lengthy
catalogue of economic, political, and social rights which their
leaders recognize as inherent and inalienable. A severe crisis
arises — the country is invaded by a hostile power, or a dissident
segment of the citizenry revolts, or the impact of a world-wide
depression threatens to bring the nation's economy in ruins. The
government meets the crisis by assuming more powers and
respecting fewer rights. The result is a regime which can act
arbitrarily and even dictatorially in the swift adoption of measures
designed to save the state and its people from the destructive
effects of the particular crisis. And the narrow duty to be pursued
by this strong government, this constitutional dictatorship? Simply
this and nothing more: to end the crisis and restore normal times.
The government assumes no power and abridges no right unless
plainly indispensable to that end; it extends no further in time
than the attainment of that end; and it makes no alteration in the
political, social and economic structure of the nation which cannot
be eradicated with the restoration of normal times. In short, the
aim of constitutional dictatorship is the complete restoration of the
status quo ante bellum. This historical fact does not comport with
philosophical theory, that there never has been a perfect
constitutional dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of all institutions of
government, and the principle of constitutional dictatorship
remains eternally valid no matter how often and seriously it may
have been violated in practice." (Constitutional Dictatorship, 1948
ed., by Clinton L. Rossiter, p. 7; italics supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or permanent
character, thus:
"The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect .
Emergency powers are strictly conditioned by their purpose and
this purpose is the restoration of normal conditions. The actions
directed to this end should therefore be provisional. For example,
measures of a legislative nature which work a lasting change in
the structure of the state or constitute permanent derogations
from existing law should not be adopted under an emergency
enabling act, at least not without the positively registered
approval of the legislature. Permanent laws, whether adopted in
regular or irregular times, are for parliaments to enact. By this
same token, the decisions and sentences of extraordinary courts
should be reviewed by the regular courts after the termination of
the crisis.
"But what if a radical act of permanent character, one
working lasting changes in the political and social fabric, is
indispensable to the successful prosecution of the particular
constitutional dictatorship? The only answer can be: it must be
resolutely taken and openly acknowledged. President Lincoln
found it necessary to proceed to the revolutionary step of
emancipation in aid of his conservative purpose of preserving the
Union; as a constitutional dictator he had a moral right to take this
radical action. Nevertheless, it is imperative that any action with
such lasting effects should eventually receive the positive
approval of the people or of their representatives in the
legislature." (p. 303, italics supplied).
From the foregoing citations, under martial law occasioned by severe
crisis generated by revolution, insurrection or subversion or even by just
severe economic depression or dislocation, the government exercises more
powers and respects fewer rights in order "to end the crisis and restore
normal times." The government can assume additional powers indispensable
to the attainment of that end — the complete restoration of peace. In our
particular case, eradication of the causes that incited rebellion and
subversion as well as secession, is the sine qua non to the complete
restoration of normalcy. Exercise of legislative power by the President as
Commander-in-Chief, upon his proclamation of martial law, is justified
because, as he professes, it is directed towards the institution of radical
reforms essential to the elimination of the causes of rebellious, insurgent or
subversive conspiracies and the consequent dismantling of the rebellious,
insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102 is indispensable to the effectuation of the reforms
within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or
must it be too weak to maintain its existence?" That was the dilemma that
vexed President Lincoln during the American Civil War, when without express
authority in the Constitution and the laws of the United States, he suspended
one basic human freedom — the privilege of the writ of habeas corpus — in
order to preserve with permanence the American Union, the Federal
Constitution of the United States and all the civil liberties of the American
people. This is the same dilemma that presently confronts the Chief
Executive of the Republic of the Philippines, who, more than the Courts and
Congress, must, by express constitutional mandate, secure the safety of our
Republic and the rights as well as lives of the against open rebellion,
insidious subversion and succession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power expressly
vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935
Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the
center against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain their
economic hegemony, and the communist rebels and Maoist-oriented
secessionists of the extreme left who demand swift institution of reforms. In
the exercise of his constitutional and statutory powers, to save the state and
to protect the citizenry against actual and threatened assaults from
insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead hand
of the past will regulate and control the security and happiness of the living
present. A contrary view would be to deny the self-evident proposition that
constitution and laws are mere instruments for the well-being, peace,
security and prosperity of the country and its citizenry. The law as a means
of social control is not static, but dynamic. Paraphrasing Mr. Justice
Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the unfolding of the future. In the vein of Mr.
Justice Holmes, the meaning of the words of the Constitution is not to be
determined by merely opening a dictionary. Its terms must be construed in
the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and
efficacy of the concepts embodied in the existing Constitution and persuade
another generation to abandon them entirely, heed should be paid to the
wise counsel of some learned jurists that in the resolution of constitutional
questions — like those posed before Us — the blending of idealism and
practical wisdom or progressive legal realism should be applied (see
Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed.,
pp. 19-21). To Justice Frankfurter, law is "a vital agency for human
betterment" and constitutional law "is applied politics, using the word in its
noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; italics
supplied). Justice Brandeis gave utterance to the truth that "Our Constitution
is not a straight jacket. It is a living organism. As such, it is capable of growth
— or expansion and adaptation to new conditions. Growth implies changes,
political, economic and social." (Brandeis Papers, Harvard Law School; italics
supplied). Harvard Professor Thomas Reed Powell emphasizes "practical
wisdom," for "the logic of constitutional law is the common sense of the
Supreme Court." (Powell, the Validity of State Legislation, under the Webb-
Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's
Opus, supra; italics supplied).
The eternal paradox in this finite world of mortal and fallible men is
that nothing is permanent except change. Living organisms as well as man-
made institutions are not immutable. Civilized men organize themselves into
a State only for the purpose of serving their supreme interest — their
welfare. To achieve such end, they created an agency known as the
government. From the savage era thru ancient times, the Middle Ages, the
Dark Ages and the Renaissance to this era of sophisticated electronics and
nuclear weaponry, states and governments have mutated in their search for
the magic instrument for their well-being. It was trial and error then as it is
still now. Political philosophies and constitutional concepts, forms and kinds
of government, had been adopted, overturned, discarded, re-adopted or
modified to suit the needs of a given society at a particular given epoch. This
is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be
stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every
"constitution is an experiment as all life is an experiment," (Abrahms vs.
U.S., 250 US 616, 631) for "the life of the law is not logic, but experience." In
the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as
society is inconstant, there can be no constancy in law," and "there will be
change whether we will it or not." As Justice Jose P. Laurel was wont to say,
"We cannot, Canute-like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a
"government that governs least." Adherents there are to the poetic dictum
of Alexander Pope: "For forms of government let fools contest; whatever is
best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In
between, the shades vary from direct democracy, representative democracy,
welfare states, socialist democracy, mitigated socialism, to outright
communism which degenerated in some countries into totalitarianism or
authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to
factual situations in the seclusion of his ivory tower, must perforce submit to
the inexorable law of change in his views, concepts, methods and techniques
when brought into the actual arena of conflict as a public functionary — face
to face with the practical problems of state, government and public
administration. And so it is that some learned jurists, in the resolution of
constitutional issues that immediately affect the lives, liberties and fortunes
of the citizens and the nation, recommend the blending of idealism with
practical wisdom, which legal thinkers prefer to identify as progressive legal
realism. The national leader, who wields the powers of government, must
and has to innovate if he must govern effectively to serve the supreme
interests of the people. This is especially true in times of great crises where
the need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of the people, to promote
their well-being, and to insure the safety and stability of the Republic. When
the methods of rebellion and subversion have become covert, subtle and
insidious, there should be a recognition of the corresponding authority on
the part of the Commander-in-Chief of the Armed Forces to utilize all the
available techniques to suppress the peril to the security of the government
and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when he said
that some men "ascribe to men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment . . . But I know
also, that laws and institutions must go hand in hand with the progress of the
human mind. As that becomes more developed, more enlightened, as new
discoveries are made, new truths disclosed and manners and opinions
change, with the change of circumstances, institutions must also advance,
and keep pace with the times." (Vol. 12, Encyclopedia Britannica, 1969 ed.,
p. 989).
The wisdom of the decision of the Chief Executive can only be judged
in the perspective of history. It cannot be adequately and fairly appraised
within the present ambience, charged as it is with so much tension and
emotion, if not partisan passion. The analytical, objective historians will write
the final verdict in the same way that they pronounced judgment on
President Abraham Lincoln who suspended the privilege of the writ of
habeas corpus without any constitutional or statutory authority therefor and
on President Franklin Delano Roosevelt who approved the proclamation of
martial law in 1941 by the Governor of Hawaii throughout the Hawaiian
territory. President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United States from
disintegration by his suspension of the privilege of the writ of habeas corpus.
No one can deny that the successful defense and preservation of the
territorial integrity of the United States was due in part, if not to a great
extent, to the proclamation of martial law over the territory of Hawaii — main
bastion of the outer periphery of the American defense perimeter in the
Pacific — which protected the United States mainland not only from actual
invasion but also from aerial or naval bombardment by the enemy.
The American Civil War ended on April 9 or 26, 1865 (Vol. I,
Encyclopedia Britannica, 1969 ed., pp. 730, 742). The case of Ex parte
Milligan, which was filed on May 10, 1865, was decided on April 3, 1866 and
the opinion was delivered on December 17, 1866.
In Duncan vs. Kahanamoku and White vs. Steer (90 L ed. 688), martial
law was proclaimed on December 7, 1941 by the Governor of Hawaii, which
was approved on December 9, 1941 by President Roosevelt, White and
Duncan were arrested respectively on August 22, 1942 and February 24,
1944 and convicted respectively on August 25, 1942 and March 2, 1944 by
the military court. They filed their petitions respectively on March 14 and
April 14, 1944 with the District Court for Hawaii which voided their
conviction, but which decision was reversed by the Circuit Court of Appeals.
In the United States Supreme Court, their cases were argued on December
7, 1945 and decided on February 25, 1946. But earlier, martial law was lifted
on October 24, 1944. The records of the two cases do not disclose when the
Circuit Coat of Appeals decided the same and when they were appealed to
the United States Supreme Court.
Parenthetically, the impartial observer cannot with certainty conclude
that the American Supreme Court acted with courage in deciding the
aforesaid cases against the position of the government long after the Civil
War and the 2nd World War ended. If the said cases were submitted during
the two wars, would the American Supreme Court reach the same
conclusion, considering that an adverse ruling during the period of such a
grave crisis might jeopardize the survival of the Federal Republic of the
United States in its life-and-death struggler against an organized and well-
armed rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST
SENATE PRESIDING OFFICERS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil
Puyat and Jose Roy, former Senate President and Senate President Pro
Tempore, respectively, to convene the Senate of the Philippines even on the
assumption that the 1935 Constitution still subsists; because pursuant to the
doctrine of separation of powers under the 1935 Constitution, the processes
of this Court cannot legally reach a coordinate branch of the government or
its head. This is a problem that is addressed to the Senate itself for
resolution; for it is purely an internal problem of the Senate. If a majority of
the senators can convene, they can elect a new Senate President and a new
Senate President Pro Tempore. But if they have no quorum, those present
can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935
Constitution). If this falls, then there is no remedy except an appeal to the
people. The dictum ubi jus, ubi remedium, is not absolute and certainly does
not justify the invocation of the power of this Court to compel action on the
part of a co-equal body or its leadership. This was emphasized with sufficient
clarity by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22-
24), with which the distinguished counsels for the petitioners in L-36164 and
L-36165 are familiar. WE stress that the doctrine of separation of powers and
the political nature of the controversy such as this, preclude the interposition
of the Judiciary to nullify an act of a coordinate body or to command
performance by the head of such a co-ordinate body of his functions.
Mystifying is the posture taken by counsels for petitioners in referring
to the political question doctrine — almost in mockery — as a magic formula
which should be disregarded by this Court, forgetting that this magic formula
constitutes an essential skein in the constitutional fabric of our government,
which, together with other basic constitutional precepts, conserves the unity
of our people, strengthens the structure of the government and assures the
continued stability of the country against the forces of division, if not of
anarchy.
Moreover, if they have a quorum, the senators can meet anywhere.
Validity of the acts of the Senate does not depend on the place of session;
for the Constitution does not designate the place of such a meeting. Section
9 of Article VI imposes upon Congress to convene in regular session every
year on the 4th Monday of January, unless a different date is fixed by law, or
on special session called by the President. As former Senator Arturo
Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the
duty to convene is addressed to all members of Congress, not merely to its
presiding officers. The fact that the doors of Congress are padlocked, will not
prevent the senators — especially the petitioners in L-36165 — if they are
minded to do so, from meeting elsewhere — at the Sunken Gardens, at the
Luneta Independence Grandstand, in any of the big hotels or theaters, in
their own houses, or at the Araneta Coliseum, which is owned by the father-
in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in
futility, for it cannot validly meet without the lower House (Sec. 10[5], Art.
VI, 1935 Constitution). Hence, this petition by five former senators for
mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law imposing
on the respondents the duty to convene the body. The rule imposing such a
duty invoked by petitioners in L-36165 is purely an internal rule of the
Senate; it is not a law because it is not enacted by both Houses and
approved by the President.
The Constitutional provision on the convening of Congress, is
addressed to the individual members of the legislative body (Sec. 9, Art. VI
of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES
EIGHT OR TEN VOTES OF SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a
declaration that the alleged ratification of the 1973 Constitution is null and
void and that the said 1973 Constitution be declared unenforceable and
inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly delegated to
him by Section 10 (2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and
inoperative is practically deciding that the same is unconstitutional. The
proposed Constitution is an act of the Constitutional Convention, which is co-
equal and coordinate with as well as independent of either Congress or the
Chief Executive. Hence, its final act, the 1973 Constitution, must have the
same category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and
the 1973 Constitution should be eight (8) under Section 10 of Article VIII of
the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic
Act No. 296, as amended, or should be ten (10) under Section 2 (2) of Article
X of the 1973 Constitution. Should the required vote of eight (8) or ten (10),
as the case may be, for the declaration of invalidity or unconstitutionality be
not achieved, the 1973 Constitution must be deemed to be valid, in force
and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of tyranny
over the mind of man" as well as towards bigotry and intolerance, which are
anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to
restrictions essential to the common weal. A civilized society cannot long
endure without peace and order, the maintenance of which is the primary
function of the government. Neither can civilized society survive without the
natural right to defend itself against all dangers that may destroy its life,
whether in the form of invasion from without or rebellion and subversion
from within. This is the first law of nature and ranks second to none in the
hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member of a civilized society under an established
government, impliedly submits to certain constraints on his freedom for the
general welfare and the preservation of the State itself, even as he reserves
to himself certain rights which constitute limitations on the powers of
government. But when there is an inevitable clash between an exertion of
governmental authority and the assertion of individual freedom, the exercise
of which freedom imperils the State and the civilized society to which the
individual belongs, there can be no alternative but to submit to the superior
right of the government to defend and preserve the State. In the language of
Mr. Justice Holmes — often invoked by herein petitioners — "when it comes
to a decision involving its (state life, the ordinary rights of individuals must
yield to what he (the President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for judicial process.
(See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was
admitted with regard to killing men in the actual clash of arms. And we think
it is obvious, although it was disputed, that the same is true of temporary
detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77,
85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of
freedom with order and security for all, that should be the shibboleth; for
freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for
his reform program long before September 21, 1972, realized almost too late
that he was being deceived by his partymates as well as by the opposition,
who promised him cooperation, which promises were either offered as a
bargaining leverage to secure concessions from him or to delay the
institution of the needed reforms. The people have been victimized by such
bargaining and dilly-dallying. To overt a terrifying blood bath and the
breakdown of the Republic, the incumbent President proclaimed martial law
to save the Republic from being overrun by communists, secessionists and
rebels by effecting the desired reforms in order to eradicate the evils that
plague our society, which evils have been employed by the communists, the
rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be
decimated. How many of the petitioners and their counsels have been
utilizing the rebels, secessionists and communists for their own personal or
political purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the
greater mass of the populace, more than for their own selves, they should be
willing to give the incumbent Chief Executive a chance to implement the
desired reforms. The incumbent President assured the nation that he will
govern within the framework of the Constitution and if at any time, before
normalcy is restored, the people thru their Citizens' Assemblies, cease to
believe in his leadership, he will step down voluntarily from the Presidency.
But if, as apprehended by the petitioners, he abuses and brutalizes the
people, then to the battlements we must go to man the ramparts against
tyranny. This, it is believed, he knows only too well; because he is aware that
he who rides the tiger will eventually end inside the tiger's stomach. He who
toys with revolution will be swallowed by that same revolution. History is
replete with examples of libertarians who turned tyrants and were burned at
stake or beheaded or hanged or guillotined by the very people whom they at
first championed and later deceived. The most bloody of such mass
executions by the wrath of a wronged people, was the decapitation by
guillotine of about 15,000 Frenchmen including the leaders of the French
revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully
cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
Esguerra, J., concur.
Barredo, J., Insofar as not inconsistent with my opinion.
Antonio, J., concurs in a separate opinion.
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave emergency,
when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may
promulgate measures legislative in character, for the successful prosecution
of such objectives. For the "President's power as Commander-in-chief has
been transformed from a simple power of military command to a vast
reservoir of indeterminate powers in time of emergency . . . In other words,
the principal canons of constitutional interpretation are . . . set aside so far
as concerns both the scope of the national power and the capacity of the
President to gather unto himself all constitutionally available powers in order
the more effectively to focus them upon the task of the hour." (Corwin, The
President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of
a crisis government in this country. In terms of power, crisis government in a
constitutional democracy entails the concentration of governmental power.
"The more complete the separation of powers in a constitutional system, the
more difficult, and yet the more necessary" according to Rossiter, "will be
their fusion in time of crisis . . . The power of the state in crisis must not only
be concentrated and expanded, it must be freed from the normal system of
constitutional and legal limitations. One of the basic features of emergency
powers is the release of the government from the paralysis of constitutional
restraints" (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of
the government is channeled through the person of the Chief Executive.
"Energy in the executive", according to Hamilton, "is essential to the
protection of the community against foreign attacks . . . to the protection of
property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of liberty
against the enterprises and assaults of ambition, of faction, and of anarchy."
(The Federalist, Number 70). "The entire strength of the nation", said Justice
Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to
enforce in any part of the land the full and free exercise of all national
powers and the security of all rights entrusted by the Constitution to its
care". The marshalling and employment of the "strength of the nation" are
matters for the discretion of the Chief Executive. The President's powers in
time of emergency defy precise definition since their extent and limitations
are largely dependent upon conditions and circumstances.
2. The power of the President to act decisively in a crisis has been
grounded on the broad conferment upon the Presidency of the Executive
power, with the added specific grant of power under the "Commander- in-
Chief" clause of the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of Presidential action in
times of crisis, rather than by judicial interpretation. Lincoln wedded his
powers under the "commander-in- chief" clause with his duty "to take care
that the laws be faithfully executed", to justify the series of extraordinary
measures which he took — the calling of volunteers for military service, the
augmentation of the regular army and navy, the payment of two million
dollars from unappropriated funds in the Treasury to persons unauthorized to
receive it, the closing of the Post Office to "treasonable correspondence", the
blockade of southern ports, the suspension of the writ of habeas corpus, the
arrest and detention of persons 'who were represented to him" as being
engaged in or contemplating "treasonable practices" — all this for the most
part without the least statutory authorization. Those actions were justified by
the imperatives of his logic, that the President may, in an emergency
thought by him to require it, partially suspend the constitution. Thus his
famous question: "Are all laws but one to be unexecuted, and the
Government itself go to pieces lest that one be violated?" The actions of
Lincoln "assert for the President", according to Corwin, "an initiative of
indefinite scope and legislative in effect in meeting the domestic aspects of
a war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]).
The facts of the civil war have shown conclusively that in meeting the
domestic problems as a consequence of a great war, an indefinite power
must be attributed to the President to take emergency measures. The
concept of "emergency" under which the Chief Executive exercised
extraordinary powers underwent correlative enlargement during the first and
second World Wars. From its narrow concept as an "emergency" in time of
war during the Civil War and World War I, the concept has been expanded in
World War II to include the "emergency" preceding the war and even after it.
"The Second World War" observed Corwin and Koenig, was the First World
War writ large, and the quasi-legislative powers of Franklin Roosevelt as
"Commander-in-Chief in wartime" . . . burgeoned correspondingly. The
precedents were there to be sure, most of them from the First World War,
but they proliferated amazingly. What is more, Roosevelt took his first step
toward war some fifteen months before our entrance into shooting war. This
step occurred in September, 1940, when he handed over fifty so-called
overage destroyers to Great Britain. The truth is, they were not overage, but
had been recently reconditioned and recommissioned . . . Actually, what
President Roosevelt did was to take over for the nonce Congress's power to
dispose of property of the United States (Article IV, Section 3) and to repeal
at least two statutes." (Corwin & Koenig, The Presidency Today, New York
University Press, 1956; cf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis of his
powers under the "Commander-in-Chief" clause created "offices" which were
copied in lavish scale by President Roosevelt in World War II. In April 1942,
thirty-five "executive agencies" were purely of Presidential creation. On June
7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an
executive order seizing the North American Aviation plant of Inglewood,
California, where production stopped as a consequence of a strike. This was
justified by the government, as the exercise of presidential power growing
out of the "duty constitutionally and inherently resting upon the President to
exert his civil and military as well as his moral authority to keep the defense
efforts of the United States a going concern" as well as "to obtain supplies
for which Congress has appropriated money, and which it has directed the
President to obtain." On a similar justification other plants and industries
were taken over by the government. It is true that in Youngstown Sheet &
Tube vs. Sawyer (343 U.S. 579; 72 3. Ct. 863; 96 L. Ed. 1153, [1952]), the
Supreme Court of the United States did not sustain the claims that the
President could, as the Nation's Chief Executive and as Commander- in-Chief
of the armed forces, validly order the seizure of most of the country's steel
mills. The Court however did not face the naked question of the President's
power to seize steel plants in the absence of any congressional enactment
or expressions of policy. The majority of the Court found that this legislative
occupation of the field made untenable the President's claim of authority to
seize the plants as an exercise of inherent executive power or as
Commander-in-Chief Justice Clerk, in his concurrence to the main opinion of
the Court, explicitly asserted that the President does possess, in the absence
of restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The same view was shared with
vague qualifications by Justices Frankfurter and Jackson, two of the
concurring Justices. The three dissenting Justices, speaking through Chief
Justice Vinson, apparently went further by quoting with approval a passage
extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309) where the court
sustained the power of the President to order withdrawals from the public
domain not only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked
as an authority to support the view that the President in times of a grave
crisis does not possess a residual power above or in consequence of his
granted powers, to deal with emergencies that he regards as threatening the
national security. The lesson of the Steel Seizure case, according to Corwin
and Koenig, "Unquestionably . . . tends to supplement presidential
emergency power to adopt temporary remedial legislation when Congress
has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The
Presidency Today, New York University Press, 1956).
The accumulation of precedents has thus built up the presidential
power under emergency conditions to "dimensions of executive prerogative
as described by John Locke, of a power to wit, to fill needed gaps in the law,
or even to supersede it so far as may be requisite to realize the fundamental
law of nature and government, namely, that as much as may be all the
members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably
argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these
measures were considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcy? It is
unavailing for petitioners to contend that we are not faced by an actual
"shooting war" for today's concept of the emergency which justified the
exercise of those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten the nation's
continued and constitutional existence. For as Corwin observed: ". . . today
the concept of 'war' as a special type of emergency warranting the
realization of constitutional limitations tends to spread, as it were, in both
directions, so that there is not only 'the war before the war,' but the 'war
after the war.' Indeed, in the economic crisis from which the New Deal may
be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain of
the New Deal measures the Court invoked the justification of 'emergency.' In
the final result the constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well, and seem likely
to do so still more pronouncedly under fresh conditions of crisis." (Corwin,
Ibid. p. 318.)
The same view was expressed by Rossiter thus:
"The second crisis is rebellion, when the authority of a

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

II
We are next confronted with the insistence of Petitioners that the
referendum in question not having been done in accordance with the
provisions of existing election laws, where only qualified voters are allowed
to participate, under the supervision of the Commission on Elections, the
new Constitution, should therefore be declared a nullity. Such an argument
is predicated upon an assumption that Article XV of the 1935 Constitution
provides the method for the revision of the constitution, and automatically
apply in the approval of such proposed new Constitution the provisions of
the election law and those of Article V and X of the old Constitution. We
search in vain for any provision in the old charter specifically providing for
such procedure in the case of a total revision or a rewriting of the whole
constitution.
1. There is clearly a distinction between revision and amendment of
an existing constitution. Revision may involve a rewriting of the whole
constitution. The act of amending a constitution, on the other hand,
envisages a change of only specific provisions. The intention of an act to
amend is not the change of the entire constitution, but only the improvement
o f specific parts of the existing constitution of the addition of provisions
deemed essential as a consequence of new conditions or the elimination of
parts already considered obsolete or unresponsive to the needs of the times.
102 The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental charter embodying new
political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of
the Philippines and that of the United States expressly provide merely for
methods of amendment. They are silent on the subject of revision. But this is
not a fatal omission. There is nothing that can legally prevent a convention
from actually revising the Constitution of the Philippines or of the United
States even were such conventions called merely for the purpose of
proposing and submitting amendments to the people. For in the final
analysis it is the approval of the people that gives validity to any proposal of
amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the
method or procedure for the revision or for the approval of a new
constitution, should it now be held that the people have placed such
restrictions on themselves that they are now disabled from exercising their
right as the ultimate source of political power from changing the old
constitution which, in their view, was not responsive to their needs and in
adopting a new charter of government to enable them to rid themselves
from the shackles of traditional norms and to pursue with a new dynamism
the realization of their true longings and aspirations, except in the manner
and form provided by Congress for previous plebiscites? Was not the
expansion of the base of political participation, by the inclusion of the youth
in the process of ratification who after all constitute the preponderant
majority more in accord with the spirit and philosophy of the constitution
that political power is inherent in the people collectively? As clearly
expounded by Justice Makasiar in his opinion, in all the cases cited where the
Court held that the submission of the proposed amendment was illegal due
to the absence of substantial compliance with the procedure prescribed by
the Constitution, the procedure prescribed by the state Constitution, is so
detailed, that specified the manner in which such submission shall be made,
the persons qualified to vote for the same, the date of election and other
definite standards, from which the court could safely ascertain whether or
not the submission was in accordance with the Constitution. Thus the case of
In re McConaughy (119 N.E. 408) relied upon in one of the dissenting
opinions involved the application of the provisions of the state Constitution
of Minnesota which clearly prescribed in detail the procedure under which
the Constitution may be amended or revised. 103 This is not true with our
Constitution. In the case of revision there are no "standards meet for judicial
judgment". 104
The framers of our Constitution were free to provide in the Constitution
the method or procedure for the revision or rewriting of the entire
constitution, and if such was their intention, they could and should have so
provided. Precedents were not wanting. The constitutions of the various
states of the American Union did provide for procedures for their
amendment, and methods for their revision. 105
Certainly We cannot, under the guise of interpretation, modify, revise,
amend, remodel or rewrite the 1935 Charter. To declare what the law is, or
has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided
the method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature, but
through a Convention expressly chosen for that purpose. The Convention as
an independent and sovereign body has drafted not an amendment but a
completely new Constitution, which decided to submit to the people for
approval, not through an act of Congress, but by means of decrees to be
promulgated by the President. In view of the inability of Congress to act, it
was within the constitutional powers of the President, either as agent of the
Constitutional Convention, or under his authority under martial law, to
promulgate the necessary measures for the ratification of the proposed new
Constitution. The adoption of the new Charter was considered as a
necessary basis for all the reforms set in motion under the new society, to
root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such
procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken. "When
the people adopt a completely revised or new constitution," said the Court in
Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or
submission of the instrument is not what gives it binding force and effect.
The fiat of the people, and only the fiat of the people, can breathe life into a
constitution."
This has to be so because, in our political system, all political power is
inherent in the people and free governments are founded on their authority
and instituted for their benefit. Thus Section 1 of Article II of the 1935
Constitution declares that: "Sovereignty resides in the people and all
government authority emanates from them." Evidently the term people
refers to the entire citizenry and not merely to the electorate, for the latter is
only a fraction of the people and is only an organ of government for the
election of government officials.
III
The more compelling question, however is: Has this Court the authority
to nullify an entire Constitution that is already effective as it has been
accepted and acquiesced in by the people as shown by their compliance with
the decree promulgated thereunder, their cooperation in its implementation,
and is now maintained by the Government that is in undisputed authority
and dominance?
Of course it is argued that acquiescence by the people cannot be
deduced from their acts of conformity, because under a regime of martial
law the people are bound to obey and act in conformity with the orders of
the President, and have absolutely no other choice. The flaw of this
argument lies in its application of a mere theoretical assumption based on
the experiences of other nations on an entirely different factual setting.
Such an assumption flounders on the rock of reality. It is true that as a
general rule martial law is the use of military forces to perform the functions
of civil government. Some courts have viewed it as a military regime which
can be imposed in emergency situations. In other words, martial rule exists
when the military rises superior to the civil power in the exercise of some or
all the functions of government. Such is not the case in this country. The
government functions thru its civilian officials. The supremacy of the civil
over the military authority is manifest. Except for the imposition of curfew
hours and other restrictions required for the security of the State, the people
are free to pursue their ordinary concerns.
In short, the existing regime in this country, does not contain the
oppressive features, generally associated with a regime of martial law in
other countries. "Upon the other hand the masses of our people have
accepted it, because of its manifold blessings. The once downtrodden rice
tenant has at long last, been emancipated — a consummation devoutly
wished by every Philippine President since the 1930's. The laborer now holds
his head high because his rights are amply protected and respected." 106 A
new sense of discipline has swiftly spread beyond the corridors of
government into the social order. Responding to the challenges of the New
Society, the people have turned in half a million loose firearms, paid their
taxes on undeclared goods and income in unprecedented numbers and
amount, lent their labors in massive cooperation — in land reform, in the
repair of dikes, irrigation ditches, roads and bridges, in reforestation, in the
physical transformation of the environment to make ours a cleaner and
greener land. "The entire country is turning into one vast garden growing
food for the body, for thought and for the soul." 1 0 7 More important the
common man has at long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this purpose. He has
zeroed in on areas which have been widely recognized as prime sources of
the nation's difficulties — land tenancy, official corruption, tax evasion and
abuse of oligarchic economic power. Clearly he knows his targets . . . there is
marked public support for his leadership . . ." (Bulletin Today, March 3 and 4,
1973).
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in
the April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was

discouraged by the failure of legislators to approve urgently needed
reforms. He found his second term further frustrated by spreading
riots, a Maoist uprising in Luzon and a much more serious Moslem
insurrection in the southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia and Indonesia. Manila
claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and
makes no promise as to when he will relinquish them. But, while
fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled the
Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of

arable land are redistributed with state funds. New roads have been
started. The educational system is undergoing revision, and corruption
is diminished. In non-communist Asia it is virtually impossible to wholly
end it and this disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society

by creating an agrarian middle-class to replace the archaic
sharecropper-absentee landlord relationship. He is even pushing a
birth control program with the tacit acceptance of the Catholic Church.
He has started labor reforms and increased wages." (Daily Express,
April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the

"Constancia" and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the old
Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic
norm, but by presupposing the new one. The statutes issued under the old
Constitution and not taken over are no longer regarded as valid, and the
organs authorized by the old Constitution no longer competent." (Kelsen,
Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made
manifest by understanding that in the final analysis, what is assailed is not
merely the validity of Proclamation No. 1102 of the President, which is
merely declaratory of the fact of approval or ratification, but the legitimacy
of the government. It is addressed more to the framework and political
character of this Government which now functions under the new Charter. It
seeks to nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by
petitioners could be judicially decided. "Judicial power presupposes an
established government capable of enacting laws and enforcing their
execution, and of appointing judges to expound and administer them. If it
decides at all as a court, it necessarily affirms the existence and authority of
the government under which it is exercising judicial power." ( Luther vs.
Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has
been effected through political action, the Court whose existence is affected
by such change is, in the words of Mr. Melville Fuller Weston, "precluded
from passing upon the fact of change by a logical difficulty which is not to be
surmounted." 108 Such change in the organic law relates to the existence of
a prior point in the Court's "chain of title" to its authority and "does not
relate merely to a question of the horizontal distribution of powers." 109 It
involves in essence a matter which "the sovereign has entrusted to the so-
called political departments of government or has reserved to be settled by
its own extra governmental action." 110
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker vs.
Carr, 369 U.S. 186, 7 L. Ed. 2d 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To
classify the various instances as 'political questions' is rather a form of
stating this conclusion than revealing of analysis . . . The crux of the matter
is that courts are not fit instruments of decision where what is essentially at
stake is the composition of those large contests of policy traditionally fought
out in non-judicial forums, by which governments and the actions of
governments are made and unmade."
The diversity of views contained in the opinions of the members of this
Court, in the cases at bar, cannot be a case of "right" or "wrong" views of the
Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the
opposite. At bottom it is the degree of one's faith — in the nation's
leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the
conclusion of this Court in its judgment of March 31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR
AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. — Amendments to this constitution may
be proposed by a two-thirds vote of each house of the legislature. The
secretary of state shall prepare a ballot title and proposition summarizing
each proposed amendment, and shall place them on the ballot for the next
statewide election. If a majority of the votes cast on the proposition favor the
amendment, it shall be adopted. Unless otherwise provided in the
amendment, it becomes effective thirty days after the certification of the
election returns by the secretary of state.
Sec. 2. Convention. — The legislature may call constitutional
conventions at any time.
Sec. 3. Call by referendum. — If during any ten-year period a
constitutional convention has not been held, the secretary of state shall
place on the ballot for the next general election the question: "Shall there be
a Constitutional Convention?" If a majority of the votes cast on the question
are in the negative, the question need not be placed on the ballot until the
end of the next ten-year period. If a majority of the votes cast on the
question are in the affirmative, delegates to the convention shall be chosen
at the next regular statewide election, unless the legislature provides for the
election of the delegates at a special election. The secretary of state shall
issue the call for the convention. Unless other provisions have been made by
law, the call shall conform as nearly as possible to the act calling the Alaska
Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission
and ratification of revisions and ordinances. . . . . .
Sec. 4. Powers. — Constitutional conventions shall have plenary
power to amend or revise the constitution, subject only to ratification by the
people. No call for a constitutional convention shall limit these powers of the
convention.
2. California (1879) — Art. XVIII. Amending and Revising the
Constitution.
Sec. 1. Constitutional amendments. — Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly, and if two-thirds of all the members elected to each of the two
houses shall vote in favor thereof, such proposed amendment or
amendments shall be entered in their Journals, with the yeas and nays taken
thereon; and it shall be the duty of the Legislature to submit such proposed
amendment or amendments to the people in such manner, and at such time,
and after such publication as may be deemed expedient. Should more
amendments than one be submitted at the same election they shall be so
prepared and distinguished, by numbers or otherwise, that each can be
voted on separately. If the people shall approve and ratify such amendment
or amendments, or any of them, by a majority of the qualified electors
voting thereon such amendment or amendments shall become a part of this
constitution.
Sec. 2. Constitutional convention. — Whenever two-thirds of the
members elected to each branch of the Legislature shall deem it necessary
to revise this Constitution, they shall recommend to the electors to vote at
the next general election for or against a Convention for that purpose, and if
a majority of the electors voting at such election on the proposition for a
Convention shall vote in favor thereof, the Legislature shall, at its next
session, provide by law for calling the same. The Convention shall consist of
a number of delegates not to exceed that of both branches of the
Legislature, who shall be chosen in the same manner, and have the same
qualifications, as Members of the Legislature. The delegates so elected shall
meet within three months after their election at such place as the
Legislature may direct. At a special election to be provided for by law, the
Constitution that may be agreed upon by such Convention shall be
submitted to the people for their ratification or rejection, in such manner as
the Convention may determine. The returns of such election shall, in such
manner as the Convention shall direct, be certified to the Executive of the
State, who shall call to his assistance the Controller, Treasurer, and
Secretary of State, and compare the returns so certified to him; and it shall
be the duty of the Executive to declare, by his proclamation, such
Constitution, as may have been ratified by a majority of all the votes cast at
such special election, to be the Constitution of the State of California.
2. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. — The general
assembly may at any time by a vote of two-thirds of the members elected to
each house, recommend to the electors of the state, to vote at the next
general election for or against a convention to revise, alter and amend this
constitution; and if a majority of those voting on the question shall declare in
favor of such convention, the general assembly shall, at the next session,
provide for the calling thereof. The number of members of the convention
shall be twice that of the senate and they shall be elected in the same
manner, at the same places, and in the same districts. The general assembly
shall, in the act calling the convention, designate the day, hour and place of
its meeting; fix the pay of its members and officers, and provide for the
payment of the same, together with the necessary expenses of the
convention. Before proceeding, the members shall take an oath to support
the constitution of the United States, and of the state of Colorado, and to
faithfully discharge their duties as members of the convention. The
qualifications of members shall be the same as of members of the senate;
and vacancies occurring shall be filled in the manner provided for filling
vacancies in the general assembly. Said convention shall meet within three
months after such election and prepare such revisions, alterations or
amendments to the constitution as may be deemed necessary; which shall
be submitted to the electors for their ratification or rejection at an election
appointed by the convention for that purpose, not less than two nor more
than six months after adjournment thereof; and unless so submitted and
approved by a majority of the electors voting at the election, no such
revision, alteration or amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment
or amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall
be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general
assembly, and the secretary of state shall also cause the said amendment or
amendments to be published in full in not more than one newspaper of
general circulation in each county, for four successive weeks previous to the
next general election for members of the general assembly; and at said
election the said amendment or amendments shall be submitted to the
qualified electors of the state for their approval or rejection, and such as are
approved by a majority of those voting thereon shall become part of this
constitution.
Provided, that if more than one amendment be submitted at any
general election, each of said amendments shall be voted upon separately
and votes thereon cast shall be separately counted the same as though but
one amendment was submitted. But the general assembly shall have no
power to propose amendments to more than six articles of this constitution
at the same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;
procedure. — Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same shall
be agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals,
with the yeas and nays taken thereon, and the Secretary of State shall cause
such proposed amendment or amendments to be published three months
before the next general election in at least three newspapers in each County
in which such newspapers shall be published; and if in the General Assembly
next after the said election such proposed amendment or amendments shall
upon yea and nay vote be agreed to by two-thirds of all the members elected
to each House, the same shall thereupon become part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of
delegates; quorum; powers and duties; vacancies. — The General Assembly
by a two-thirds vote of all the members elected to each House may from
time to time provide for the submission to the qualified electors of the State
at the general election next thereafter the question, "Shall there be a
Convention to revise the Constitution and amend the same?; and upon such
submission, if a majority of those voting on said question shall decide in
favor of a Convention for such purpose, the General Assembly at its next
session shall provide for the election of delegates to such convention at the
next general election. Such Convention shall be composed of forty-one
delegates, one of whom shall be chosen from each Representative District
by the qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by the
qualified electors thereof respectively. The delegates so chosen shall
convene at the Capital of the State on the first Tuesday in September next
after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention shall
constitute a quorum for the transaction of business. The Convention shall
have power to appoint such officers, employees and assistants as it may
deem necessary, and fix their compensation, and provide for the printing of
its documents, journals, debates and proceedings. The Convention shall
determine the rules of its proceedings, and be the judge of the elections,
returns and qualifications of its members. Whenever there shall be a
vacancy in the office of delegate from any district or county by reason of
failure to elect, ineligibility, death, resignation or otherwise, a writ of election
to fill such vacancy shall be issued by the Governor, and such vacancy shall
be filled by the qualified electors of such district or county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. — Either branch of the
Legislature, at any regular session, or at any special or extra-ordinary
session thereof called for such purpose either in the governor's original call
or any amendment thereof, may propose the revision or amendment of any
portion or portions of this Constitution. Any such revision or amendment may
relate to one subject or any number of subjects, but no amendment shall
consist of more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of
the members elected to each house, it shall be entered upon their respective
journals with the yeas and nays and published in one newspaper in each
county where a newspaper is published for two times, one publication to be
made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon,
and thereupon submitted to the electors of the State for approval or
rejection at the next general election, provided, however, that such revision
o r amendment may be submitted for approval or rejection in a special
election under the conditions described in and in the manner provided by
Section 3 of Article XVII of this Constitution. If a majority of the electors
voting upon the amendment adopt such amendment the same shall become
a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the
Legislature, by a vote of two-thirds of all the members of both Houses, shall
determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective Journals, with yea's and
nay's thereon. Notice of said action shall be published weekly in one
newspaper in every county in which a newspaper is published, for three
months preceding the next general election of Representatives, and in those
counties where no newspaper is published, notice shall be given by posting
at the several polling precincts in such counties for six weeks next preceding
said election. The electors at said election may vote for or against the
revision in question. If a majority of the electors so voting be in favor of
revision, the Legislature chosen at such election shall provide by law for a
Convention to revise the Constitution, said Convention to be held within six
months after the passage of such law. The Convention shall consist of a
number equal to the membership of the House of Representatives, and shall
be apportioned among the several counties in the same manner as members
of said House.
6. Idaho (1890) — Art. XX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or
amendments to this Constitution may be proposed in either branch of the
legislature, and if the same shall be agreed to by two-thirds of all the
members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to submit
such amendment or amendments to the electors of the state at the next
general election, and cause the same to be published without delay for at
least six consecutive weeks, prior to said election, in not less than one
newspaper of general circulation published in each county; and if a majority
of the electors shall ratify the same, such amendment or amendments shall
become a part of this Constitution.
Sec. 3. Revision or amendment by convention. Whenever two-thirds
of the members elected to each branch of the legislature shall deem it
necessary to call a convention to revise or amend this Constitution, they
shall recommend to the electors to vote at the next general election, for or
against a convention, and if a majority of all the electors voting at said
election shall have voted for a convention, the legislature shall at the next
session provide by law for calling the same; and such convention shall
consist of a number of members, not less than double the number of the
most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec 3. Convention. — At the general election to be held in the year
one thousand eight hundred and seventy, and in each tenth year thereafter,
and also at such times as the General Assembly may, by law, provide, the
question, "Shall there be a Convention to revise the Constitution, and amend
the same?" shall be decided by the electors qualified to vote for members of
the General Assembly; and in case a majority of the electors so qualified,
voting at such election, for and against such proposition, shall decide in favor
of a Convention for such purpose, the General Assembly, at its next session,
shall provide by law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendment and Revision.
Sec. 1. Amendment to constitution; proposal by legislature;
submission to electors. — Any amendment or amendments to this
constitution may be proposed in the senate or house of representatives. If
the same shall be agreed to by 2/3 of the members elected to each house,
s u c h amendment or amendments, shall be entered on the journals,
respectively, with the yeas and nays taken thereon; and the same shall be
submitted to the electors at the next spring or autumn election thereafter, as
the legislature shall direct; and, if a majority of the electors qualified to vote
for members of the legislature voting thereon shall ratify and approve such
amendment or amendments, the same shall become part of the constitution.
Sec. 4. General revision: convention; procedure. At the Biennial
Spring Election to be held in the year 1961, in each sixteenth year thereafter
and at such times as may be provided by laws, the question of a General
Revision of the Constitution shall be submitted to the Electors qualified to
vote for members of the Legislature. In case a majority of the Electors voting
on the question shall decide in favor of a Convention for such purpose, at an
Election to be held not later than four months after the Proposal shall have
been certified as approved, the Electors of each House of Representatives
District as then organized shall Elect One Delegate for each State
Representative to which the District is entitled and the Electors of each
Senatorial District as then organized shall Elect One Delegate for each State
Senator to which the District is entitled. The Delegates so elected shall
convene at the Capital City on the First Tuesday in October next succeeding
such election, and shall continue their sessions until the business of the
convention shall be completed. A majority of the delegates elected shall
constitute a quorum for the transaction of business . . . No proposed
constitution or amendment adopted by such convention shall be submitted
to the electors for approval as hereinafter provided unless by the assent of a
majority of all the delegates elected to the convention, the yeas and nays
being entered on the journal. Any proposed constitution or amendments
adopted by such convention shall be submitted to the qualified electors in
the manner provided by such convention on the first Monday in April
following the final adjournment of the convention; but, in case an interval of
at least 90 days shall not intervene between such final adjournment and the
date of such election, then it shall be submitted at the next general election.
Upon the approval of such constitution or amendments by a majority of the
qualified electors voting thereon such constitution or amendments shall take
effect on the first day of January following the approval thereof.
9. Minnesota (1867) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors
voting makes amendment valid. — Whenever a majority of both houses of
the legislature shall deem it necessary to alter or amend this Constitution,
they may propose such alterations or amendments, which proposed
amendments shall be published with the laws which have been passed at the
same session, and said amendments shall be submitted to the people for
their approval or rejection at any general election, and if it shall appear, in a
manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or
amendments, the same shall be valid to all intents and purposes as a part of
this Constitution. If two or more alterations or amendments shall be
submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.
Sec. 2. Revision of constitution. — Whenever two-thirds of the
members elected to each branch of the legislature shall think it necessary to
call a convention to revise this Constitution, they shall recommend to the
electors to vote at the next general election for members of the legislature,
for or against a convention; and if a majority of all the electors voting at said
election shall have voted for a convention, the legislature shall, at their next
session, provide by law for calling the same. The convention shall consist of
as many members as the House of Representatives, who shall be chosen in
the same manner, and shall meet within three months after their election for
the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at
convention. Any convention called to revise this constitution shall submit
any revision thereof by said convention to the people of the State of
Minnesota for their approval or rejection at the next general election held
not less than 90 days after the adoption of such revision, and, if it shall
appear in the manner provided by law that three-fifths of all the electors
voting on the question shall have voted for and ratified such revision, the
same shall constitute a new constitution of the State of Minnesota. Without
such submission and ratification, said revision shall be of no force or effect.
Section 9 of Article IV of the Constitution shall not apply to election to the
convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. — Any amendment
or amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the Yeas and
Nays taken thereon, and referred to the Legislature then next to be chosen,
and shall be published for three months next preceding the time of making
such choice. And if in the Legislature next chosen as aforesaid, such
proposed amendment or amendments shall be agreed to by a majority of all
the members elected to each house, then it shall be the duty of the
Legislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the Legislature shall prescribe;
and if the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the Legislature
voting thereon, such amendment or amendments shall become a part of the
Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any
time the Legislature by a vote of two-thirds of the Members elected to each
house, shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it shall
appear that a majority of the electors voting at such election, shall have
voted in favor of calling a Convention, the Legislature shall, at its next
session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of a
number of Members not less than that of both branches of the Legislature. In
determining what is a majority of the electors voting at such election,
reference shall be had to the highest number of votes cast at such election
for the candidates for any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. — It shall be the duty
of the selectmen, and assessors, of the several towns and places in this
state, in warning the first annual meetings for the choice of senators, after
the expiration of seven years from the adoption of this constitution, as
amended, to insert expressly in the warrant this purpose, among the others
for the meeting, to wit, to take the sense of the qualified voters on the
subject of a revision of the constitution; and, the meeting being warned
accordingly, and not otherwise, the moderator shall take the sense of the
qualified voters present as to the necessity of a revision; and a return of the
number of votes for and against such necessity, shall be made by the clerk
sealed up, and directed to the general court at their then next session; and
if, it shall appear to the general court by such return, that the sense of the
people of the state has been taken, and that, in the opinion of the majority of
the qualified voters in the state, present and voting at said meetings, there
is a necessity for a revision of the constitution, it shall be the duty of the
general court to call a convention for that purpose, otherwise the general
court shall direct the sense of the people to be taken, and then proceed in
the manner before mentioned. The delegates to be chosen in the same
manner, and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution, before the
same shall be laid before the towns and unincorporated places, and
approved by two-thirds of the qualified voters present and voting on the
subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; submission to vote. —
Any amendment or amendments to this Constitution may be proposed in
either branch of the Legislature, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with the yeas and nays thereon,
he entered in their journals and referred by the Secretary of State to the
people for their approval or rejection, at the next regular general election,
except when the Legislature, by a two-thirds vote of each house, shall order
a special election for that purpose. If a majority of all the electors voting at
such election shall vote in favor of any amendment thereto, it shall thereby
become a part of this Constitution.

If two or more amendments are proposed they shall be submitted in
such manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which
is submitted to the voters shall embrace more than one general subject and
the voters shall vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for the amendment
of this Constitution by articles, which embrace one general subject, each
proposed article shall be deemed a single proposals or proposition.
Sec. 2. Constitutional convention to propose amendments or new
constitution. No convention shall be called by the Legislature to propose
alterations, revisions, or amendments to this Constitution, or to propose a
new Constitution, unless the law providing for such convention shall first be
approved by the people on a referendum vote at a regular or special
election, and any amendments, alterations, revisions, or new Constitution,
proposed by such convention, shall be submitted to the electors of the State
at a general or special election and be approved by a majority of the electors
voting thereon, before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to the people at
least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. — Any amendment or
amendments to this Constitution may be proposed in either branch of the
legislative assembly, and if the same shall be agreed to by a majority of all
the members elected to each of the two houses, such proposed amendment
or amendments shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular general election, except when the
legislative assembly shall order a special election for that purpose. If a
majority of the electors voting on any such amendment shall vote in favor
thereof, it shall thereby become a part of this Constitution. The votes for and
against such amendment, or amendments, severally, whether proposed by
the legislative assembly or by initiative petition, shall be canvassed by the
secretary of state in the presence of the governor, and if it shall appear to
the governor that the majority of the votes cast at said election on said
amendment, or amendments, severally, are cast in favor thereof, it shall be
his duty forthwith after such canvass, by his proclamation, to declare the
said amendment, or amendments, severally, having received said majority
of votes to have been adopted by the people of Oregon as part of the
Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more
amendments shall be submitted in the manner aforesaid to the voters of this
state at the same election, they shall be so submitted that each amendment
shall be voted on separately. No convention shall be called to amend or
propose amendments to this Constitution, or to propose a new Constitution,
unless the law providing for such convention shall first be approved by the
people on a referendum vote at a regular general election. This article shall
not be construed to impair the right of the people to amend this Constitution
by vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power
to amend this Constitution granted by Section 1, Article IV, and Section 1 of
this Article, a revision of all or part of this Constitution may be proposed in
either house of the Legislative Assembly and, if the proposed revision is
agreed to by at least two-thirds of all the members of each house, the
proposed revision shall, with the yeas and nays thereon, be entered in their
journals and referred by the Secretary of State to the people for their
approval or rejection, notwithstanding Section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when
the Legislative Assembly orders a special election for that purpose. A
proposed revision may deal with more than one subject and shall be voted
upon as one question. The votes for and against the proposed revision shall
be canvassed by the Secretary of State in the presence of the Governor and,
if it appears to the Governor that the majority of the votes cast in the
election on the proposed revision are in favor of the proposed revision, he
shall, promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been adopted by
the people as the Constitution of the State of Oregon or as a part of the
Constitution of the State of Oregon, as the case may be. The revision shall
be in effect as the Constitution or as a part of this Constitution from the date
of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any
amendment or amendments to this Constitution may be proposed in either
house of the Legislature, and if two-thirds of all the members elected to each
of the two houses, shall vote in favor thereof, such proposed amendment or
amendments shall be entered on their respective journals with the yeas and
nays taken thereon; and the Legislature shall cause the same to be
published in at least one newspaper in every county of the State, where a
newspaper is published, for two months immediately preceding the next
general election, at which time the said amendment or amendments shall be
submitted to the electors of the State, for their approval or rejection, and if a
majority of the electors voting thereon shall approve the same, such
amendment or amendments shall become part of this Constitution. If two or
more amendments are proposed, they shall be so submitted as to enable the
electors to vote on each of them separately.
Sec. 2. Revision of the Constitution by Convention. — Whenever
two-thirds of the members, elected to each branch of the Legislature, shall
deem it necessary to call a convention to revise or amend this Constitution,
they shall recommend to the electors to vote at the next general election, for
or against a convention, and, if a majority of all the electors, voting at such
election, shall vote for a convention, The Legislature, at its next session,
shall provide by law for calling the same. The convention shall consist of not
less than the number of members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. — A n y amendment or
amendments to this constitution may be proposed in either branch of the
legislature, and, if the same shall be agreed to by two-thirds of all the
members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to submit
such amendment or amendments to the electors of the state at the next
general election, and cause the same to be published without delay for at
least twelve (12) consecutive weeks, prior to said election, in at least one
newspaper of general circulation, published in each county, and if a majority
of the electors shall ratify the same, such amendment or amendments shall
become a part of this constitution.
Sec. 2. How voted for. — If two or more amendments are proposed,
they shall be submitted in such manner that the electors shall vote for or
against each of them separately.
Sec. 3. Constitutional convention; provision for . — Whenever two-
thirds of the members elected to each branch of the legislature shall deem it
necessary to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or against
a convention, and if a majority of all the electors voting at such election shall
have voted for a convention, the legislature shall at the next session provide
by law for calling the same; and such convention shall consist of a number of
members, not less than double that of the most numerous branch of the
legislature.
Sec. 4. New constitution. — Any constitution adopted by such
convention shall have no validity until it has been submitted to and adopted
by the people.
ESGUERRA, J., for dismissal of petitions:
These petitions seek to stop and prohibit the respondents Executive
Officers from implementing the Constitution signed on November 30, 1972;
in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and
President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have
started on January 22, 1973; to nullify Proclamation No. 1102 of the
President issued on January 17, 1973, which declared the ratification of the
Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No.
86 issued on December 31, 1972, which were empowered under Presidential
Decree No. 86-A, issued on January 5, 1973, to act in connection with the
ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the
making of a Constitution after the declaration of Martial Law on September
21, 1972.
2. The Convention was not empowered to incorporate certain
provisions in the 1972 Constitution because they are highly unwise and
objectionable and the people were not sufficiently informed about them.
3. The President had no authority to create and empower the
Citizens' Assemblies to ratify the new Constitution at the referendum
conducted in connection therewith, as said assemblies were merely for
consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing
the manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred
to the Solicitor General as counsel for the respondents for comment, with
three members of the Court, including the undersigned, voting to dismiss
them outright. The comments were considered motions to dismiss which
were set for hearing and extensively argued. Thereafter both parties
submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the
Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the
competence of this Court to decide, or is it justiciable and fit for judicial
determination?
2. Was the new Constitution of November 30, 1972, ratified in
accordance with the amending process prescribed by Article XV of the 1935
Constitution?
3. Has the new Constitution been accepted and acquiesced in by
the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are
petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should
abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not the
question presented is political, joint discussion of issues Nos. 1, 3 and 4 is
necessary so as to arrive at a logical conclusion. For after the acceptance of
a new Constitution and acquiescence therein by the people by putting it into
practical operation, any question regarding its validity should be foreclosed
and all debates on whether it was duly or lawfully ushered into existence as
the organic law of the state become political and not judicial in character.
The undisputed facts that lead to the issuance of Proclamation No.
1102 and Presidential Decrees Nos. 86 and 86-A are fully set forth in the
majority and dissenting opinions in the Plebiscite cases decided on January
22, 1973, and need not be repeated here.
Petitioners seeks to set at naught Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of the
new Constitution pursuant to the said decrees is invalid and of no effect.
Presidential Decree No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and through these
assemblies the proposed 1972 Constitution was submitted to the people for
ratification. Proclamation No. 1102 of the President announced or declared
the result of the referendum or plebiscite conducted through the Citizens
Assemblies, and that 14,976,561 members thereof voted for the ratification
of the new Constitution and 743,869 voted against it. Petitioners assail these
two acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated is
the new Constitution itself — the very framework of the present Government
since January 17, 1973. The reason is obvious. The Presidential decrees set
up the means for the ratification and acceptance of the new Constitution and
Proclamation No. 1102 simply announced the result of the referendum or
plebiscite by the people through the Citizens Assemblies. The Government
under the new Constitution has been running on its tracks normally and
apparently without obstruction in the form of organized resistance capable
of jeopardizing its existence and disrupting its operation. Ultimately the issue
is whether the new Constitution may be set aside by this Court. But has it
the power and authority to assume such a stupendous task when the result
of such invalidation would be to subject this nation to divisive controversies
that may totally destroy the social order which the Government under the
new Constitution has been admirably protecting and promoting under Martial
Law? That the new Constitution has taken deep root and the people are
happy and contended with it is a living reality which the most articulate
critics of the new order cannot deny. 95 out of 108 members of the House of
Representatives have opted to serve in the interim National Assembly
provided for under the new Constitution. 15 out of 24 Senators have done
likewise. The members of the Congress did not meet anymore last January
22, 1973, not because they were really prevented from so doing but because
of no serious effort on their parts to assert their offices under the 1935
Constitution. In brief the Legislative Department under the 1935 Constitution
is a thing of the past. The Executive Department has been fully reorganized;
new appointments of key executive officers including those of the Armed
Forces were extended and they took an oath to support and defend the new
Constitution. The courts, except the Supreme Court by reason of these
cases, have administered justice under the new constitution. All government
offices have dealt with the public and performed their functions according to
the new Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution,
how can this Court justify its assumption of jurisdiction when no power has . .
. conferred upon it the jurisdiction to declare the Constitution or any part
thereof null and void? It is the height of absurdity and impudence for a court
to wage open war against the organic act to which it owes its existence. The
situation in which this Court finds itself does not permit it to pass upon the
question whether or not the new Constitution has entered into force and has
superseded the 1935 Constitution. If it declares that the present Constitution
has not been validly ratified, it has to uphold the 1935 Constitution as still
the prevailing organic law. The result would be too anomalous to describe,
for then this Court would have to declare that it is governed by one
Constitution or the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it
exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as the matter would
then be not meet for judicial determination, but one addressed to the
sovereign power of the people who have already spoken and delivered their
mandate by accepting the fundamental law on which the government of this
Republic is now functioning. To deny that the new Constitution has been
accepted and actually is in operation would be flying in the face of reason
and pounding one's bare head against a veritable stone wall or a heavily
reinforced concrete, or simply "kicking the deadly pricks" with one's bare
foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without
popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of approval.
Courts should be slow in nullifying a Constitution claimed to have been
adopted not in accordance with constitutional or statutory directives [Miller
vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs. Commonwealth, 101; Va.
829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb.
211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
". . . But it is a case where a new constitution has been formed

and promulgated according to the forms of law. Great interests have
already arisen under it; important rights exist by virtue of it; persons
have been convicted of the highest crimes known to the law, according
to its provisions; the political power of the government has in many
ways recognized it; and under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of
our state. We need not consider the validity of the amendments made
after the convention reassembled. If the making of them was in excess
of its power, yet, as the entire instrument has been recognized as valid
in the manner suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, — who can and
properly should remedy the matter, if not to their liking, — if it were to
declare the instrument or a portion invalid, and bring confusion and
anarchy upon the state." (Italics supplied)
In Smith vs. Good, supra, the Court said:

"It is said that a state court is forbidden from entering upon such
an inquiry when applied to a new constitution, and not an amendment,
because the judicial power presupposes an established government,
and if the authority of that government is annulled and overthrown, the
power of its courts is annulled with it; and therefore, if a state court
should enter upon such an inquiry, and come to the conclusion that the
government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it
decides at all, it must necessarily affirm the existence of the
government under which it exercises its judicial powers." (Italics
supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S. (7 How.), 12
L. Ed. 581, 598 (1849) where it was held:
"Judicial power presupposes an established government capable

of enacting laws and enforcing their execution, and of appointing
judges to expound and administer them. The acceptance of the judicial
office is a recognition of the authority of the government from which it
is derived. And if the authority of that government is annulled and
overthrown, the power of its courts and other officers is annulled with
it. And if a State court should enter upon the inquiry proposed in this
case, and should come to the conclusion that the government under
which it acted had been put aside and displaced by an opposing
government it would cease to be a court, and be incapable of
pronouncing a judicial decision upon the question it undertook to try. If
it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial
power."
The foreign relations of the Republic of the Philippines have been

normally conducted on the basis of the new Constitution and no state with
which we maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General,
dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the better part of wisdom for this Court to adopt the
proper attitude towards political upheavals and realize that the question
before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign
capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28, 1967; 100 Phil.
1101), or to a co-equal and coordinate branch of the Government (Vera vs.
Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs.
Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1951). A case
involves a political question when there would be "the impossibility of
undertaking independent resolutions without expressing a lack of respect
due to coordinate branches of government", or when there is "the
potentiality of embarrassment from multifarious pronouncements by various
departments on one question."
To preserve the prestige and eminence that this Court has long
enjoyed as the "ultimate organ of the 'Supreme Law of the Land' in that vast
range of legal problems often strongly entangled in popular feeling on which
this Court must pronounce", let us harken to the following admonition of
Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct.
691; 7 L. Ed. 2d. 663:
"The Court's authority — possessed neither of the purse nor the

sword — ultimately rests on sustained public confidence in its moral
sanction. Such feeling must be nourished by the Court's complete
detachment, in fact and appearance, from political entanglements and
abstention from injecting itself into the clash of political forces in
political settlement . . ." (Italics supplied)
The people have accepted and submitted to a new Constitution to

replace the 1935 Constitution. The new organic law is now in the plenitude of
its efficacy and vigor. We are now living under its aegis and protection and
only the cynics will deny this. This Court should not in the least attempt to
act as a super-legislature or a super-board of canvassers and sow confusion
and discord among our people by pontificating that there was no valid
ratification of the new Constitution. The sober realization of its proper role
and delicate function and its consciousness of the limitations on its
competence, especially in situations like this, are more in keeping with the
preservation of our democratic tradition than the blatant declamations of
those who wish the Court to engage in their brand of activism and would not
mind plunging it into the whirlpool of passion and emotion in an effort to
capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
Barredo, Makasiar and Antonio, JJ., concur.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by this Court is
whether or not the Constitution proposed by the Constitutional Convention of
1971 had been ratified in accordance with the provisions of Article XV of the
1935 Constitution. In the plebiscite cases, which were decided by this Court
on January 22, 1973, 111 I held the view that this issue could be properly
resolved by this Court, and that it was in the public interest that this Court
should declare then whether or not the proposed Constitution had been
validly ratified. The majority of this Court, however, was of the view that the
issue was not squarely raised in those cases, and so the Court, as a body,
did not make any categorical pronouncement on the question of whether or
not the Constitution proposed by the 1971 Convention was validly ratified. I
was the only one who expressed the opinion that the proposed Constitution
was not validly ratified and therefore "it should not be given force and
effect."
The Court is now called upon to declare, and to inform the people of
this country, whether or not that proposed Constitution had been validly
ratified and had come into effect.
The Solicitor General, however, contends that this Court has no
jurisdiction to resolve the issue that we have mentioned because that issue
is a political question that cannot be decided by this Court. This contention
of the Solicitor General is untenable. A political question relates to "those
questions which under the Constitution are to be decided by the people in
their sovereign capacity or in regard to which full discretionary authority has
been delegated to the legislative, or to the executive, branch of the
government. 112 The courts have the power to determine whether the acts
of the executive are authorized by the Constitution and the laws whenever
they are brought before the court in a judicial proceeding. The judicial
department of the government exercises a sort of controlling, or rather
restraining, power over the two other departments of the government. Each
of the three departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one department
when that sphere is actually transcended. While a court may not restrain the
executive from committing an unlawful act, it may, when the legality of such
an act is brought before it in a judicial proceeding, declare it to be void, the
same as it may declare a law enacted by the legislature to be
unconstitutional. 113 It is a settled doctrine that every officer under a
constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people, acting
through the agency of the judiciary. It must be remembered that the people
act through the courts, as well as through the executive or the legislature.
One department is just as representative as the other, and the judiciary is
the department which is charged with the special duty of determining the
limitations which the law places upon all official actions. 114 In the case of
Gonzales vs. Commission on Elections, 115 this Court ruled that the issue as
to whether or not a resolution of Congress acting as a constituent assembly
violates the Constitution is not a political question and is therefore subject to
judicial review. In the case of Avelino vs. Cuenco, 116 this Court held that the
exception to the rule that courts will not interfere with a political question
affecting another department is when such political question involves an
issue as to the construction and interpretation of the provisions of the
constitution. And so, it has been held that the question of whether a
constitution shall be amended or not is a political question which is not in
the power of the court to decide, but whether or not the constitution has
been legally amended is a justiciable question. 117
My study on the subject of whether a question before the court is
political or judicial, based on decisions of the courts in the United States —
where, after all, our constitutional system has been patterned to a large
extent — made me arrive at the considered view that it is in the power of
this Court, as the ultimate interpreter of the Constitution, to determine the
validity of the proposal, the submission, and the ratification of any change in
the Constitution. Ratification or non-ratification of a constitutional
amendment is a vital element in the procedure to amend the constitution,
and I believe that the Court can inquire into, and decide on, the question of
whether or not an amendment to the constitution, as in the present cases,
has been ratified in accordance with the requirements prescribed in the
Constitution that was amended. And so, in the cases now before Us, I believe
that the question of whether or not the Constitution proposed by the 1971
Constitutional Convention had been validly ratified or not is a justiciable
question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial,
question. I fully concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the Constitution proposed by
the 1971 Constitutional Convention has been validly ratified, I am
reproducing herein pertinent portions of my dissenting opinion in the
plebiscite cases:
"The ratification of the Constitution proposed by the 1971

Constitutional Convention must be done in accordance with the
provisions of Section 1, Article XV of the 1935 Constitution of the
Philippines, which reads:
'Section 1. The Congress in joint session assembled by

a vote of three fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose
amendments to the Constitution or call a convention for that
purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people
for their ratification.'
"It is in consonance with the abovequoted provision of the 1935

Constitution that on March 16, 1967, the Congress of the Philippines
passed Resolution No. 2 calling a convention to propose amendments
to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2
reads as follows:
'SECTION 7. The amendments proposed by the

Convention shall be valid and considered part of the Constitution
when approved by a majority of the votes cast in an election at
which they are submitted to the people for their ratification
pursuant to Article XV of the Constitution.'
"It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention there
was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for their ratification
as provided in the Constitution.
"This Court, in the case of Tolentino vs. Commission on Elections,

L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr.
Justice Barredo, said:
'The Constitutional Convention of 1971, as any other

convention of the same nature, owes its existence and derives all
its authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the people
directly as in the case of a revolutionary convention which drafts
the first Constitution of an entirely new government born of
either a war of liberation from a mother country or of a revolution
against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is
absolutely true that the convention is completely without
restraint and omnipotent all wise, and it is as to such conventions
that the remarks of Delegate Manuel Roxas of the Constitutional
Convention of 1934 quoted by Senator Pelaez refer. No amount
of rationalization can belie the fact that the current convention
came into being only because it was called by a resolution of a
joint session of Congress acting as a constituent assembly by
authority of Section 1, Article XV of the present Constitution . . . .'
xxx xxx xxx
'As to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to
the Constitution, the Convention and its officers and members
are all subject to all the provisions of the existing Constitution.
Now we hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of
Section 1 of Article XV.'
"In Proclamation No. 1102, issued on January 17, 1973, the

President of the Philippines certified that as a result of the voting
before the barangays (Citizens Assemblies) 14,976,561 members of
the barangays voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the basis of the
overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the
Constitution proposed by the 1971 Convention has been ratified and
"It is very plain from the very wordings of Proclamation No. 1102
that the provisions of Section 1 of Article XV of the Constitution of 1935
were not complied with. It is not necessary that evidence be produced
before this Court to show that no elections were held in accordance
with the provisions of the Election Code. Proclamation No. 1102
unequivocably states that the proposed Constitution of 1972 was voted
upon by the barangays. It is very clear, therefore, that the voting held
in these barangays is not the election contemplated in the provisions
of Section 1, Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the
qualified and registered voters of the country would cast their votes,
where official ballots prepared for the purpose are used, where the
voters would prepare their ballots in secret inside the voting booths in
the polling places established in the different election precincts
throughout the country, where the election is conducted by election
inspectors duly appointed in accordance with the election law, where
the votes are canvassed and reported in a manner provided for in the
election law. It was this kind of election that was held on May 14, 1935,
when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was
ratified; on June 18, 1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14,
1967 when the amendments to the Constitution to increase the
number of Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
"I cannot see any valid reason why the practice or procedure in
the past, in implementing the constitutional provision requiring the
holding of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution
proposed by the 1971 Constitutional Convention.
"It is my view that the President of the Philippines cannot by

decree order the ratification of the proposed 1972 Constitution thru a
voting in the barangays and make said result the basis for proclaiming
the ratification of the proposed constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete disregard or in violation,
of the provisions of Section 1 of Article XV of the 1935 Constitution.
"Proclamation No. 1102 mentions, furthermore, that on the

question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that
the vote of the barangays should be considered a vote in a plebiscite. It
would thus appear that the barangays assumed the power to
determine whether a plebiscite as ordained in the Constitution be held
or not. Indeed, the provision of Section 1, Article XV of the Constitution
was completely disregarded.
"The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution. The
votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
'An election is the embodiment of the popular will, the

expression of the sovereign power of the people. In common
parlance an election is the act of casting and receiving the
ballots, counting them, and making the return.' (Hontiveros vs.
Altavas, 24 Phil. 632, 637).
'Election' implies a choice by an electoral body at the time
and substantially in the manner and with the safeguards
provided by law with respect to some question or issue. (Leffel
vs. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
'. . . the statutory method whereby qualified voters or
electors pass on various public matters submitted to them — the
election of officers, national, state, county, township — the
passing on various other questions submitted for their
determination.' (29 C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co.
vs. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
'Election' is expression of choice by voters of body politic.
(Ginsburg vs. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and
Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance
with such statutory requirements as have been set up by the
legislature.' (People ex rel. Rago vs. Lipsky, 63 N.E. 2d 642, 327
Ill. App. 63; Rothfels vs. Southworth, 356 P. 2d 612, 11 Utah 2d
169 in 29 C.J.S. 38). (Italics supplied).
"In this connection I herein quote the pertinent provisions of the

Election Code of 1971:
'Sec. 2. Applicability of this Act. — All elections of public

officers except barrio officials and plebiscites shall be conducted
in the manner provided by this Code.'
'Sec. 99. Necessity of registration to be entitled to vote.
— In order that a qualified voter may vote in any regular or
special election or in any plebiscite he must be registered in the
permanent list of voters for the city, municipality or municipal
district in which he resides: Provided, That no person shall
register more than once without first applying for cancellation of
his previous registration.' (Italics supplied). (Please see also
Sections 100-102, Election Code of 1971, R.A. No. 6388).
"It is stated in Proclamation No. 1102 that the voting was done
by the members of citizens assemblies who are 15 years of age or
over. Under the provision of Section 1 of Article V of the 1935
Constitution the age requirement to be a qualified voter is 21 years or
over.

"But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising of
hands by the persons indiscriminately gathered to participate in the
voting, where even children below 15 years of age were included. This
is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or rejected is to resort to
a voting by demonstrations, which is would mean the rule of the crowd,
which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be decided
by simply gathering people and asking them to raise their hands in
answer to the question of whether they vote for or against a proposed
Constitution. The election processes as provided by law should be
strictly observed in determining the will of the sovereign people in a
democracy. In our Republic the will of the people must be expressed
through the ballot in a manner that is provided by law.
"It is said that in a democracy the will of the people is the

supreme law. Indeed, the people are sovereign, but the will of the
people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over
the apparent will of the majority of the people, if that will had not been
expressed, or obtained, in accordance with the law. Under the rule of
law public questions must be decided in accordance with the
Constitution and the law. This is specially true in the case of the
adoption of a constitution or in the ratification of an amendment to the
Constitution.
"The following citations are, to me, very relevant in the effort to

determine whether the proposed Constitution of 1972 had been validly
ratified, or not:
'When it is said that 'the people' have the right to alter or

amend the constitution, it must not be understood that this term
necessarily includes all the inhabitants of the state. Since the
question of the adoption or rejection of a proposed new
constitution or constitutional amendment must be answered by a
vote, the determination of it rests with those who, by the existing
constitution, are accorded the right of suffrage. But the qualified
electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the
ballot. If a constitution should be abrogated, and a new one
adopted, by the whole mass of people in a state, acting through
representatives not chosen by the 'people' in the political sense
of the term, but by the general body of the populace, the
movement would be extra-legal' (Black's Constitutional Law,
Second Edition, pp. 47-48).
'The theory of our political system is that the ultimate
sovereignty is in the people, from whom springs all legitimate
authority. The people of the Union created a national
constitution, and conferred upon it powers of sovereignty over
certain subjects, and the people of each State created a State
government, to exercise the remaining powers of sovereignty so
far as they were disposed to allow them to be exercised at all. By
the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and
neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this
fundamental law.' (Cooley's Constitutional Limitations, 8th
Edition, Vol. I, p. 81 cited in Graham vs. Jones, 3 So. 2d. 761,
782).
'The theory that a favorable vote by the electorate,
however unanimous, on a proposal to amend a constitution, may
cure, render innocuous, all or any antecedent failures to observe
commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in
Alabama, where the doctrine of the stated theory was denied, in
obvious effect, by the pronouncement 60 years ago of broad,
wholesome constitutional principles in Collier vs. Frierson, supra,
as quoted in the original opinion, ante. The people themselves
are bound by the Constitution; and, being so bound, are
powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a constitutional
convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of
revolution. 'The Constitution may be set aside by revolution, but
it can only be amended in the way it provides,' said Hobson, C.J.,
i n McCreary vs. Speer, 156 Ky. 783, 791, 162 S. W. 99, 103.
(Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
'The fact that a majority voted for the amendment, unless
the vote was taken as provided by the Constitution, is not
sufficient to make a change in that instrument. Whether a
proposed amendment has been legally adopted is a judicial
question, for the court must uphold and enforce the Constitution
as written until it is amended in the way which it provides for.'
Wood vs. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560;
McConaughty vs. State, 106 Minn. 409, 119 N.W. 408; Oakland
Paving Company vs. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v.
Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18
Ann. Cas. 723. (McCreary vs. Speer, 162 S.W. 99, 104).
'Provisions of a constitution regulating its own amendment,
. . . are not merely directory, but are mandatory; and a strict
observance of every substantial requirement is essential to the
validity of the proposed amendment. These provisions are as
binding on the people as on the legislature, and the former are
powerless by vote of acceptance to give legal sanction to an
amendment the submission of which was made in disregard of
the limitations contained in the constitution.' (16 C.J.S. 35-36
cited in Graham vs. Jones, 3 So. 2d 761, 782).
'It is said that chaos and confusion in the governmental
affairs of the State will result from the Court's action in declaring
the proposed constitutional amendment void. This statement is
grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the
result of the failure of the drafters of the joint resolution to
observe, follow and obey the plain essential provisions of the
Constitution. Furthermore, to say that, unless the Court
disregards its sworn duty to enforce the Constitution, chaos and
confusion will result, is an inherently weak argument in favor of
the alleged constitutionality of the proposed amendment. It is
obvious that, if the Court were to countenance the violations of
the sacramental provisions of the Constitution, those who would
thereafter desire to violate it and disregard its clear mandatory
provisions would resort to the scheme of involving and confusing
the affairs of the State and then simply tell the Court that it was
powerless to exercise one of its primary functions by rendering
the proper decree to make the Constitution effective.' ( Graham
vs. Jones, 3 So. 2d. 761, 793-794).
"In our jurisprudence I find an instance where this Court did not
allow the will of the majority to prevail, because the requirements of
the law were not complied with. In the case of Monsale vs. Nico, 83 Phil.
758, Monsale and Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale
had duly filed his certificate of candidacy before the expiration of the
period for the filing of the same. However, on October 10, 1947, after
the period for the filing of certificate of candidacy, Monsale withdrew
his certificate of candidacy. But on November 7, 1947 Monsale
attempted to revive his certificate of candidacy by withdrawing the
withdrawal of his certificate of candidacy. The Commission on
Elections, on November 8, 1947, ruled that Monsale could no longer be
a candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast
for Monsale upon the ground that the votes cast for him were stray
votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First Instance of
Iloilo. In the count of the ballots during the proceedings in the trial
court it appeared that Monsale had obtained 2,877 votes while Nico
obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The
Court of First Instance of Iloilo decided the election protest in favor of
Monsale. Upon appeal by Nico, this Court reversed the decision of the
lower court. This Court declared that because Monsale withdrew his
certificate of candidacy his attempt to revive it by withdrawing his
withdrawal of his certificate of candidacy did not restore the
effectiveness of his certificate of candidacy, and this Court declared
Nico the winner in spite of the fact that Monsale had obtained more
votes than he.
"We have cited this Monsale case to show that the will of the
majority of the voters would not be given effect, as declared by this
Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an
election.
"And so, in the cases now before this Court, the fact that the
voting in the citizens assemblies (barangays) is not the election that is
provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those
assemblies can not be made the basis for declaring the ratification of
the proposed 1972 Constitution, in spite of the fact that it was reported
that 14,976,561 members of the citizens assemblies voted for the
adoption as against 743,869 for the rejection, because the votes thus
obtained were not in accordance with the provisions of Section 1 of
Article XV of the 1935 Constitution of the Philippines. The rule of law
must be upheld.
"My last observation: One of the valid grounds against the

holding of the plebiscite on January 15, 1973, as provided in
Presidential Decree No. 73, is that there is no freedom on the part of
the people to exercise their right of choice, because of the existence of
martial law in our country. The same ground holds true as regards the
voting of the barangays on January 10 to 15, 1973. More so, because
by General Order No. 20, issued on January 7, 1973, the President of
the Philippines ordered 'that the provisions of Section 3 of Presidential
Decree No. 73 in so far as they allow free public discussion of the
proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be
suspended in the meantime.' It is, therefore, my view that voting in the
barangays on January 10-15, 1973 was not free, and so this is one
added reason why the results of the voting in the barangays should not
be made the basis for the proclamation of the ratification of the
proposed Constitution.
"It is my view, therefore, that Proclamation No. 1102 repugnant

to the 1935 Constitution, and so it is invalid, and should not be given
effect. The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of
this Republic, and so it should not be given force and effect."
It is urged by the Solicitor General, however, that the voting in the

citizens assemblies was a substantial compliance with the provisions of
Article XV of the 1935 Constitution. The Solicitor General maintains that the
primary thrust of the provision of Article XV of the 1935 Constitution is that
"to be valid, amendments must gain the approval of the majority in
recognition of the democratic postulate that sovereignty resides in the
people." It is not disputed that in a democracy sovereignty resides in the
people. But the term "people" must be understood in its constitutional
meaning, and they are "those persons who are permitted by the Constitution
to exercise the elective franchise." 118 Thus, in Section 2 of Article VII of the
1935 Constitution, it is provided that "The President shall hold his office
during a term of four years and, together with the Vice- President chosen for
the same term, shall be elected by direct vote of the people . . ." Certainly
under that constitutional provision the "people" who elect directly the
President and the Vice-President are no other than the persons who, under
the provisions of the same Constitution, are granted the right to vote. In like
manner the provision in Section 1 of Article II of the 1935 Constitution which
says "Sovereignty resides in the people and all government authority
emanates from them", the "people" who exercise the sovereign power are
no other than the persons who have the right to vote under the Constitution.
In the case of Garchitorena vs. Crescini, 119 this Court, speaking through Mr.
Justice Johnson, said, "In democracies, the people, combined, represent the
sovereign power of the State. Their sovereign authority is expressed through
the ballot, of the qualified voters, in duly appointed elections held from time
to time, by means of which they choose their officials for definite fixed
periods, and to whom they entrust, for the time being, as their
representatives, the exercise of the powers of government." In the case of
Moya vs. Del Fierro, 120 this Court, speaking through Mr. Justice Laurel, said,
"As long as popular government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised, must continue to
be the means by which the great reservoir of power must be emptied into
the receptacular agencies wrought by the people through their Constitution
in the interest of good government and the common weal. Republicanism, in
so far as it implies the adoption of a representative type of government,
necessarily points to the enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the established authority ." And in
the case of Abanil vs. Justice of the Peace of Bacolod, 121 this Court said: "In
the scheme of our present republican government, the people are allowed to
have a voice therein through the instrumentality of suffrage to be availed of
by those possessing certain prescribed qualifications. The people, in clothing
a citizen with the elective franchise for the purpose of securing a consistent
and perpetual administration of the government they ordain, charge him
with the performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people. This duty
requires that the privilege thus bestowed should be exercised, not
exclusively for the benefit of the citizen or class of citizens professing it, but
in good faith and with an intelligent zeal for the general benefit and welfare
of the state. (U.S. v. Cruikshank, 92 U.S. 588) . . ." There is no question,
therefore, that when we talk of sovereign people, what is meant are the
people who act through the duly qualified and registered voters who vote
during an election that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935
Constitution should be construed along with the term "election" as used in
the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-McDuffie Law
(Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law provides as
follows:
"Section 4. After the President of the United States has

certified that the constitution conforms with the provisions of this act,
it shall be submitted to the people of the Philippine Islands for their
ratification or rejection at an election to be held within four months
after the date of such certification, on a date to be fixed by the
Philippine Legislature, at which election the qualified voters of the
Philippine Islands shall have an opportunity to vote directly for or
against the proposed constitution and ordinances appended thereto.
Such election shall be held in such manner as may prescribed by the
Philippine Legislature, to which the return of the election shall be
made. The Philippine Legislature shall by law provide for the
canvassing of the return and shall certify the result to the Governor-
General of the Philippine Islands, together with a statement of the
votes cast, and a copy of said constitution and ordinances. If a majority
of the votes cast shall be for the constitution, such vote shall be
deemed an expression of the will of the people of the Philippine Islands
in favor of Philippine Independence, and the Governor-General shall,
within thirty days after receipt of the certification from the Philippine
Legislature, issue a proclamation for the election of officers of the
government of the Commonwealth of the Philippine Islands provided
for in the Constitution. . . ."
It can safely be said, therefore, that when the framers of the 1935
Constitution used the word "election" in Section I Article XV of the 1935
Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to
the drafting of the 1935 Constitution, and also the "election" mentioned in
the Independence Act at which "the qualified voters of the Philippine Islands
shall have an opportunity to vote directly for or against the proposed
constitution . . ." It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an amendment to that
Constitution similar to the mode of ratifying the original Constitution itself.
It is clear, therefore, that the ratification or any amendment to the
1935 Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution was
drafted. The alleged referendum in the citizens assemblies — participated in
by persons aged 15 years or more, regardless of whether they were qualified
voters or not, voting by raising their hands, and the results of the voting
reported by the barrio or ward captain to the municipal mayor, who in turn
submitted the report to the Provincial Governor, and the latter forwarding
the reports to the Department of Local Governments, all without the
intervention of the Commission on Elections which is the constitutional body
which has exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections — was not only a non-substantial
compliance with the provisions of Section 1 of Article XV of the 1935
Constitution but a downright violation of said constitutional provision. It
would be indulging in sophistry to maintain that the voting in the citizens
assemblies amounted to a substantial compliance with the requirements
prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the
Constitution proposed by the 1971 Constitutional Convention was not ratified
in accordance with the provisions of Section 1 of Article XV of the 1935
Constitution, the fact is that after the President of the Philippines had issued
Proclamation No. 1102 declaring that the said proposed Constitution "has
been ratified by overwhelming majority of all the votes cast by the members
of all the barangays (citizens assemblies) throughout the Philippines and had
thereby come into effect" the people have accepted the new Constitution.
What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have
been performing their duties apparently in observance of the provisions of
the new Constitution. It could not be otherwise, because the President of the
Philippines, who is the head of the executive department, had proclaimed
that the new Constitution had come into effect, and his office had taken the
steps to implement the provisions of the new Constitution. True it is, that
some 92 members of the House of Representatives and 15 members of the
Senate, of the Congress of the Philippines had expressed their option to
serve in the interim National Assembly that is provided for in Section 2 of
Article XVII of the proposed Constitution. It must be noted, however, that of
the 15 senators who expressed their option to serve in the interim National
Assembly only one of them took his oath of office, and of the 92 members of
the House of Representatives who opted to serve in the interim National
Assembly, only 22 took their oath of office. The fact, that only one Senator
out of 24, and only 22 Representatives out of 110, took their oath of office, is
an indication that only a small portion of the members of Congress had
manifested their acceptance of the new Constitution. It is in the taking of the
oath of office where the affiant says that he swears to "support and defend
the Constitution" that their acceptance of the Constitution is made manifest.
I agree with counsel for petitioners in L-36165 (Gerardo Roxas, et al. vs.
Alejandro Melchor, et al.) when he said that the members of Congress who
opted to serve in the interim National Assembly did so only ex abundante
cautela, or by way of a precaution, or making sure, that in the event the new
Constitution becomes definitely effective and the interim National Assembly
is convened they can participate in legislative work in their capacity as duly
elected representatives of the people, which otherwise they could not do if
they did not manifest their option to serve, and that option had to be made
within 30 days from January 17, 1973, the date when Proclamation No. 1102
was issued. Of course, if the proposed Constitution does not become
effective, they continue to be members of Congress under the 1935
Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire
on December 31, 1973. Whereas, of the Senators who opted to serve in the
interim National Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the rest on December
31, 1977. Let it be noted that 9 Senators did not opt to serve in the interim
National Assembly, and 18 members of the House of Representatives also
did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new
Constitution. I cannot, in conscience, accept the reported affirmative votes in
the citizens assemblies as a true and correct expression by the people of
their approval, or acceptance, of the proposed Constitution. I have my
serious doubts regarding the freedom of the people to express their views
regarding the proposed Constitution during the voting in the citizens
assemblies, and I have also my serious doubts regarding the truthfulness
and accuracy of the reports of the voting in the citizens assemblies. This
doubt has been engendered in my mind after a careful examination and
study of the records of these cases, particularly with respect to the reports of
the voting in the citizens assemblies. Perhaps, it may be said that the
people, or the inhabitants of this country, have acquiesced to the new
Constitution, in the sense that they have continued to live peacefully and
orderly under the government that has been existing since January 17, 1973
when it was proclaimed that the new Constitution came into effect. But what
could the people do? In the same way that the people have lived under
martial law since September 23, 1972, they also have to live under the
government as it now exists, and as it has existed since the declaration of
martial law on September 21, 1972, regardless of what Constitution is
operative — whether it is the 1935 Constitution or the new Constitution.
Indeed, there is nothing that the people can do under the circumstances
actually prevailing in our country today — circumstances, known to all, and
which I do not consider necessary to state in this opinion I cannot agree,
therefore, with my worthy colleagues in the Court who hold the view that the
people have accepted the new Constitution, and that because the people
have accepted it, the new Constitution should be considered as in force,
regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971
Constitutional Convention has not come into effect. I do not say, however,
that the proposed Constitution is invalid. To me, the validity of the proposed
Constitution is not in issue in the cases before Us. What the petitioners assail
is not the validity of the proposed Constitution but the validity of Presidential
Proclamation No. 1102 which declares the proposed Constitution as having
been ratified and has come into effect. It being my considered view that the
ratification of the proposed Constitution, as proclaimed in Proclamation No.
1102, is not in accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and
should not be given force and effect. The proposed Constitution, therefore,
should be considered as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in conformity
with Section 1 of Article XV of the 1935 Constitution. Incidentally, I must
state that the 1935 Constitution is still in force, and this Court is still
functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be
submitted to the people in an election or plebiscite held in accordance with
the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as
we have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to
propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the
nation that the government of our Republic since the declaration of martial
law is not a revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution. The people of this
Republic has reason to be happy because, according to the President, we still
have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people for their
ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV
of the 1935 Constitution is an assurance to our people that we still have in
our country the Rule of Law, and that the democratic system of government
that has been implanted in our country by the Americans, and which has
become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire
on my part to bring about stability in the democratic and constitutional
system in our country. I feel that if this Court would give its imprimatur to
the ratification of the proposed Constitution, as announced in Proclamation
No. 1102, it being very clear that the provisions of Section 1 of Article XV of
the 1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean is
that if this Court now declares that a new Constitution is now in force
because the members of the citizens assemblies had approved said new
Constitution, although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935 Constitution, it can
happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendment is submitted
to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government. As a
member of this Court I only wish to contribute my humble efforts to prevent
the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed
Constitution through the voting in the citizens assemblies is a clear violation
of the 1935 Constitution, what I say in this opinion is simply an endeavor on
my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P.
Laurel, said:
"Let our judges be as it were the vestal keepers of the purity and
sanctity of our Constitution, and the protection and vindication of
popular rights will be safe and secure in their reverential
guardianship."
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George Sutherland of
the U. S. Supreme Court said:
"(t)he saddest epitaph which can be carved in memory of a

vanished liberty is that it was lost because its possessors failed to
stretch forth a saving hand while yet there was time."
I concur fully with the personal views expressed by the Chief Justice in
the opinion that he has written in these cases. Along with him, I vote to deny
the motion to dismiss and to give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such
transcendental significance is likely to confront this Court in the near or
distant future as that posed by these petitions. For while the specific
substantive issue is the validity of Presidential Proclamation No. 1102, an
adverse judgment may be fraught with consequences that, to say the least,
are far-reaching in its implications. As stressed by respondents, "what
petitioners really seek to invalidate is the new Constitution." 122 Strict
accuracy would of course qualify such statement that what is in dispute, as
noted in the opinion of the Chief Justice, goes only as far as the validity of its
ratification. It could very well be though that the ultimate outcome is not
confined within such limit, and this is not to deny that under its aegis, there
have been marked gains in the social and economic sphere, but given the
premise of continuity in a regime under a fundamental law, which itself
explicitly recognizes the need for change and the process for bringing it
about, 123 it seems to me that the more appropriate course is for this Court
to give heed to the plea of petitioners that the most serious attention be
paid to their submission that the challenged executive act fails to meet the
test of constitutionality. Under the circumstances, with regret and with due
respect for the opinion of my brethren, I must perforce dissent. It would
follow therefore that the legal position taken by the Chief Justice as set forth
with his usual lucidity and thoroughness has, on the whole, my concurrence,
subject, of course, to reservations insofar as it contains views and nuances
to which I have in the past expressed doubts. Nonetheless, I feel that a brief
expression of the reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial
review, this Court is not expected to be an oracle given to utterances of
eternal verities, but certainly it is more than just a keen but passive observer
of the contemporary scene. It is, by virtue of its role under the separation of
powers concept, involved not necessarily as a participant in the formation of
government policy, but as an arbiter of its legality. Even then, there is
realism in what Lerner did say about the American Supreme Court as "the
focal point of a set of dynamic forces which [could play] havoc with the
landmarks of the American state and determine the power configuration of
the day." 124 That is why there is this caveat. In the United States as here,
the exercise of the power of judicial review is conditioned on the necessity
that the decision of a case or controversy before it so requires. To repeat,
the Justices of the highest tribunal are not, as Justice Frankfurter made clear,
"architects of policy. They can nullify the policy of others, they are incapable
of fashioning their own solutions for social problems." 125 Nonetheless, as
was stressed by Professors Black 126 and Murphy, 127 a Supreme Court by
the conclusion it reaches and the decision it renders does not merely check
the coordinate branches, but also by its approval stamps with legitimacy the
action taken. Thus in affirming constitutional supremacy, the political
departments could seek the aid of the judiciary. For the assent it gives to
what has been done conduces to its better support in a regime where the
rule of law holds sway. In discharging such a role, this Court must necessarily
take into account not only what the exigent needs of the present demand
but what may lie ahead in the unexplored and unknown vistas of the future.
It must guard against the pitfall of lack of understanding of the dominant
forces at work to seek a better life for all, especially those suffering from the
pangs of poverty and disease, by a blind determination to adhere to the
status quo. It would be tragic, and a clear case of its being recreant to its
trust, if the suspicion can with reason be entertained that its approach
amounts merely to a militant vigilantism that is violently opposed to any
form of social change. It follows then that it does not suffice that recourse be
had only to what passes for scholarship in the law that could be marred by
inapplicable erudition and narrow legalism. Even with due recognition of
such factors, however, I cannot, for reasons to be set more at length and in
the light of the opinion of the Chief Justice, reach the same result as the
majority of my brethren. For, in the last analysis, it is my firm conviction that
the institution of judicial review speaks too clearly for the point to be missed
that official action, even with due allowance made for the good faith that
invariably inspires the step taken, has to face the gauntlet of a court suit
whenever there is a proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition
when, at the outset, they would seek a dismissal of these petitions. For
them, the question raised is political and thus beyond the jurisdiction of this
Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in
the concept of the rule of law that rights belong to the people and that
government possesses powers only. Essentially then, unless such an
authority may either be predicated on express or implied grant in the
Constitution or the statutes, an exercise thereof cannot survive an inquiry as
to its validity. Respondents through Solicitor-General Mendoza would deny
our competence to proceed further. It is their view, vigorously pressed and
plausibly asserted, that since what is involved is not merely the effectivity of
an amendment but the actual coming into effect of a new constitution, the
matter is not justiciable. The immediate reaction is that such a contention is
to be tested in the light of the fundamental doctrine of separation of powers
that it is not only the function but the solemn duty of the judiciary to
determine what the law is and to apply it in cases and controversies that call
for decision. 128 Since the Constitution pre-eminently occupies the highest
rung in the hierarchy of legal norms, it is in the judiciary, ultimately this
Tribunal, that such a responsibility is vested. With the 1935 Constitution
containing, as above noted, an explicit article on the subject of
amendments, it would follow that the presumption to be indulged in is that
the question of whether there has been deference to its terms is for this
Court to pass upon. What is more, the Gonzales, 129 Tolentino 130 and Planas
131 cases speak unequivocally to that effect. Nor is it a valid objection to this
conclusion that what was involved in those cases was the legality of the
submission and not ratification, for from the very language of the controlling
article, the two vital steps are proposal and ratification, which as pointed out
i n Dillon vs. Gloss, 132 "cannot be treated as unrelated acts, but as
succeeding steps in a single endeavor." 133 Once an aspect thereof is viewed
as judicial, there would be no justification for considering the rest as devoid
of that character. It would be for me then an indefensible retreat, deriving no
justification from circumstances of weight and gravity, if this Court were to
accede to what is sought by respondents and rule that the question before
us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine
in Lansang vs. Garcia. 134 Thus: "The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to an
issue involved in a case appropriately subject to its cognizance, as to which
there has been a prior legislative or executive determination to which
deference must be paid. It has likewise been employed loosely to characterize
a suit where the party proceeded against is the President or Congress, or any
branch thereof. If to be delimited with accuracy, 'political questions' should
refer to such as would under the Constitution be decided by the people in their
sovereign capacity or in regard to which full discretionary authority is vested
either in the Presidency or Congress. It is thus beyond the competence of the
judiciary to pass upon. Unless clearly falling within the above formulation, the
decision reached by the political branches whether in the form of a
congressional act or an executive order could be tested in court. Where private
rights are affected, the judiciary has no choice but to look into its validity. It is
not to be lost sight of that such a power comes into play if there be an
appropriate proceeding that may be filed only after either coordinate branch
has acted. Even when the Presidency or Congress possesses plenary power, its
improvident exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy. For the constitutional grant of authority is usually
unrestricted. There are limits to what may be done and how it is to be
accomplished. Necessarily then, the courts in the proper exercise of judicial
review could inquire into the question of whether or not either of the two
coordinate branches has adhered to what is laid down by the Constitution. The
question thus posed is judicial rather than political." 135 The view entertained
by Professor Dodd is not too dissimilar. For him such a term "is employed to
designate certain types of functions committed to the political organs of
government (the legislative and executive departments, or either of them), and
not subject to judicial investigation." 136 After a thorough study of American
judicial decisions, both federal and state, he could conclude: "The field of
judicial nonenforceability is important, but is not large when contrasted with
the whole body of written constitutional texts. The exceptions from judicial
enforceability fall primarily within the field of public or governmental interests."
137 Nor was Professor Weston's formulation any different. As was expressed by
him: "Judicial questions, in what may be thought the more useful sense, are
those which the sovereign has set to be decided in the courts. Political
questions, similarly, are those which the sovereign has entrusted to the so-
called political departments of government or has reserved to be settled by its
own extra-governmental action." 138 What appears undeniable then both from
the standpoint of Philippine as well as American decisions is the care and
circumspection required before the conclusion is warranted that the matter at
issue is beyond judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political
question, admittedly one of complexity and importance, deserves to be
pursued further. They would derive much aid and comfort from the writings
of both Professor Bickel 139 of Yale and Professor Freund 140 of Harvard,
both of whom in turn are unabashed admirers of Justice Brandeis. Whatever
be the merit inherent in their lack of enthusiasm for a more active and
positive role that must be played by the United States Supreme Court in
constitutional litigation, it must be judged in the light of our own history. It
cannot be denied that from the well-nigh four decades of constitutionalism in
the Philippines, even discounting an almost similar period of time dating
from the inception of American sovereignty, there has sprung a tradition of
what has been aptly termed as judicial activism. Such an approach could be
traced to the valedictory address before the 1935 Constitutional Convention
of Claro M. Recto. He spoke of the trust reposed in the judiciary in these
words: "It is one of the paradoxes of democracy that the people at times
place more confidence in instrumentalities of the State other than those
directly chosen by them for the exercise of their sovereignty." 141 It would
thus appear that even then this Court was expected not to assume an
attitude of timidity and hesitancy when a constitutional question is posed.
There was the assumption of course that it would face up to such a task,
without regard to political considerations and with no thought except that of
discharging its trust. Witness these words Justice Laurel in an early landmark
case, People vs. Vera, 142 decided in 1937: "If it is ever necessary for us to
make any vehement affirmance during this formative period of our political
history, it is that we are independent of the Executive no less than of the
Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand it." 143
The hope of course was that such assertion of independence and impartiality
was not mere rhetoric. That is a matter more appropriately left to others to
determine. It suffices to state that what elicits approval on the part of our
people of a judiciary ever alert to inquire into alleged breaches of the
fundamental law is the realization that to do so is merely to do what is
expected of it and that thereby there is no invasion of spheres appropriately
belonging to the political branches. For it needs to be kept in kind always
that it can act only when there is a suit with proper parties before it, wherein
rights appropriate for judicial enforcement are sought to be vindicated.
Then, too, it does not approach constitutional questions with dogmatism or
apodictic certainty nor view them from the shining cliffs of perfection. This is
not to say though that it is satisfied with an empiricism untroubled by the
search for jural consistency and rational coherence. A balance has to be
struck. So juridical realism requires. Once allowance is made that for all its
care and circumspection this Court is manned by human beings fettered by
fallibility, but nonetheless earnestly and sincerely striving to do right, the
public acceptance of its vigorous pursuit of the task of assuring that the
Constitution be obeyed is easy to understand. It has not in the past shirked
its responsibility to ascertain whether there has been compliance with and
fidelity to constitutional requirements. Such is the teaching of a host of cases
f r o m Angara vs. Electoral Commission 144 to Planas vs. Commission on
Elections. 145 It should not start now. It should continue to exercise its
jurisdiction, even in the face of a plausible but not sufficiently persuasive
insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American
legal scholarship by the Solicitor-General and his equally able associates
presents the whole picture. On the question of judicial review, it is not a case
of black and white; there are shaded areas. It goes too far, in my view, if the
perspective is one of dissatisfaction, with its overtones of distrust. This
expression of disapproval has not escaped Dean Rostow of Yale, who began
one of his most celebrated legal essays. The Democratic Character of Judicial
Review, thus: "A theme of uneasiness, and even of guilt, colors the literature
about judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial review is
undemocratic." 146 He went on to state: "Judicial review, they have urged, is
an undemocratic shoot on an otherwise respectable tree. It should be cut off,
or at least kept pruned and inconspicuous." 147 His view was precisely the
opposite. Thus: "The power of constitutional review, to be exercised by some
part of the government, is implicit in the conception of a written constitution
delegating limited powers. A written constitution would promote discord
rather than order in society if there were no accepted authority to construe
it, at the least in cases of conflicting action by different branches of
government or of constitutionally unauthorized governmental action against
individuals. The limitation and separation of powers, if they are to survive,
require a procedure for independent mediation and construction to reconcile
the inevitable disputes over the boundaries of constitutional power which
arise in the process of government." 148 More than that, he took pains to
emphasize: "Whether another method of enforcing the Constitution could
have been devised, the short answer is that no such method has developed.
The argument over the constitutionality of judicial review has long since
been settled by history. The power and duty of the Supreme Court to declare
statutes or executive action unconstitutional in appropriate cases is part of
the living Constitution. 'The course of constitutional history,' Mr. Justice
Frankfurter recently remarked, 'has cast responsibilities upon the Supreme
Court which it would be "stultification" for it to evade.'" 149 or is it only Dean
Rostow who could point to Frankfurter, reputed to belong to the same school
of thought opposed to judicial activism, if not its leading advocate during his
long stay in the United States Supreme Court, as one fully cognizant of the
stigma that attaches to a tribunal which neglects to meet the demands of
judicial review. There is a statement of similar import from Professor Mason:
" I n Stein vs. New York Frankfurter remarked, somewhat self-consciously
perhaps, that the 'duty of deference cannot be allowed imperceptibly to slide
into abdication.'" 150 Professor Konefsky, like Dean Rostow, could not accept
the characterization of judicial review as undemocratic. Thus in his study of
Holmes and Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it ought also to be
remembered that architects of that system did not equate constitutional
government with unbridled majority rule. Out of their concern for political
stability and security for private rights, . . ., they designed a structure whose
keystone was to consist of barriers to the untrammeled exercise of power by
any group. They perceived no contradiction between effective government
and constitutional checks. To James Madison, who may legitimately be
regarded as the philosopher of the Constitution, the scheme of mutual
restraints was the best answer to what he viewed as the chief problem in
erecting a system of free representative government: 'In framing a
government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.'" 151
There is thus an inevitability to the flowering of judicial review. Could it
be that the tone of discontent apparent in the writings of eminent authorities
on the subject evince at the most fears that the American Supreme Court
might overstep the bounds allotted to the judiciary? It cannot be a denial of
the fitness of such competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate to the decision of a
case before them. That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the fundamental law
of the United States Constitution, that distinguished American constitutional
historian, Professor Corwin, could rightfully state that judicial review "is
simply incidental to the power of courts to interpret the law, of which the
Constitution is part, in connection with the decision of cases." 152 This is not
to deny that there are those who would place the blame or the credit,
depending upon one's predilection, on Marshall's epochal opinion in Marbury
vs. Madison. 153 Curtis belonged to that persuasion. As he put it: "The
problem was given no answer by the Constitution. A hole was left where the
Court might drive in the peg of judicial supremacy, if it could. And that is
what John Marshall did." 154 At any rate there was something in the soil of
American juristic thought resulting in this tree of judicial power so
precariously planted by Marshall striking deep roots and showing wonderful
vitality and hardiness. It now dominates the American legal scene. Through
it, Chief Justice Hughes, before occupying that exalted position, could state
in a lecture: "We are under a Constitution, but the Constitution is what the
judges say it is . . ." 155 The above statement is more than just an aphorism
that lends itself to inclusion in judicial anthologies or bar association
speeches. It could and did provoke from Justice Jackson, an exponent of the
judicial restraint school thought, this meaningful query: "The Constitution
nowhere provides that it shall be what the judges say it is. How, then, did it
come about that the statement not only could be made but could become
current as the most understandable and comprehensive summary of
American constitutional law?" 156 It is no wonder that Professor Haines could
pithily and succinctly sum up the place of the highest American tribunal in
the scheme of things in this wise: "The Supreme Court of the United States
has come to be regarded as the unique feature of the American
governmental system." 157 Let me not be misunderstood. There is here no
attempt to close one's eyes to a discernible tendency on the part of some
distinguished faculty minds to look askance at what for them may be
inadvisable extension of judicial authority. For such indeed is the case as
reflected in two leading cases of recent vintage, Baker vs. Carr, 158 decided
in 1962 and Powell vs. MacCormack, 159 in 1969, both noted in the opinion of
the Chief Justice. The former disregarded the warning of Justice Frankfurter
i n Colegrove vs. Green 160 about the American Supreme Court declining
jurisdiction on the question of apportionment as to do so "would cut very
deep into the very being of Congress." 161 For him, the judiciary "ought not
to enter this political thicket." Baker has since then been followed; it has
spawned a host of cases. 162 Powell, on the question of the power of a
legislative body to exclude from its ranks a person whose qualifications are
uncontested, for many the very staple of what is essentially political,
certainly goes even further than the authoritative Philippine decision of Vera
vs. Avelino, 163 It does look then that even in the United States, the plea for
judicial self-restraint, even if given voice by those competent in the field of
constitutional law, has fallen on deaf ears. There is in the comments of
respondents an excerpt from Professor Freund quoting from one of his
essays appearing in a volume published in 1968. It is not without interest to
note that in another paper, also included therein, he was less than assertive
about the necessity for self-restraint and apparently mindful of the claims of
judicial activism. Thus: "First of all, the Court has a responsibility to maintain
the constitutional order, the distribution of public power, and the limitations
on that power." 164 As for Professor Bickel, it has been said that as counsel
for the New York Times in the famous Vietnam papers case, 165 he was less
than insistent on the American Supreme Court exercising judicial self-
restraint. There are signs that the contending forces on such question, for
some an unequal contest, are now quiescent. The fervor that characterized
the expression of their respective points of view appears to have been
minimized. Not that it is to be expected that it will entirely disappear,
considering how dearly cherished are, for each group, the convictions,
prejudices one might even say, entertained. At least what once was fitly
characterized as the booming guns of rhetoric, coming from both directions,
have been muted. Of late, scholarly disputations have been centered on the
standards that should govern the exercise of the power of judicial review. In
his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor
Wechsler advocated as basis for decision what he termed neutral principles
of constitutional law. 166 It has brought forth a plethora of law review
articles, the reaction ranging from guarded conformity to caustic criticism.
167 There was, to be sure, no clear call to a court in effect abandoning the
responsibility incumbent on it to keep governmental agencies within
constitutional channels. The matter has been put in temperate terms by
Professor Frank thus: "When allowance has been made for all these factors,
it nevertheless seems to me that the doctrine of political questions ought to
be very sharply confined to cases where the functional reasons justify it and
that in a given case involving its expansion there should be careful
consideration also of the social considerations which may militate against it.
The doctrine has a certain specious charm because of its nice intellectualism
and because of the fine deference it permits to expertise, to secret
knowledge, and to the prerogatives of others. It should not be allowed to
grow as a merely intellectual plant." 168
It is difficult, for me at least, not to be swayed by appraisal, coming
from such impeccable sources of the worth and significance of judicial
review in the United States. I cannot resist the conclusion then that the
views advanced on this subject by distinguished counsel for petitioners, with
Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the
advocacy of the Solicitor-General, possess the greater weight and carry
persuasion. So much then for the invocation of the political question
principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The
crucial point that had to be met is whether Proclamation No. 1102 manifests
fidelity to the explicit terms of Article XV. There is, of course, the view not
offensive to reason that a sense of the realities should temper the rigidity of
devotion to the strict letter of the text to allow deference to its spirit to
control. With due recognition of its force in constitutional litigation, 169 if my
reading of the events and the process that led to such proclamation, so
clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it
cannot be confidently asserted that there was such compliance. It would be
to rely on conjectural assumptions that did founder on the rock of the
undisputed facts. Any other conclusion would, for me, require an
interpretation that borders on the strained. So it has to be if one does not
lose sight of how the article on amendments is phrased. A word, to
paraphrase Justice Holmes may not be a crystal, transparent and
unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a
rubber band either. It would be unwarranted in my view then to assert that
the requirements of the 1935 Constitution have been met. There are
American decisions, 170 and they are not few in number, which require that
there be obedience to the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution is the supreme law,
then its mandate must be fulfilled. No evasion is to be tolerated. Submission
to its commands can be shown only if each and every word is given meaning
rather than ignored or disregarded. This is not to deny that a recognition of
the conclusive effect attached to the electorate manifesting its will to vote
affirmatively on the amendments proposed poses an obstacle to the
judiciary being insistent on the utmost regularity. Briefly stated, substantial
compliance is enough. A great many American State decisions may be cited
in support of such a doctrine. 171
Even if the assumption be indulged in that Article XV is not phrased in
terms too clear to be misread, so that this Court is called upon to give
meaning and perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever obscurity it possesses is
illumined when the light of the previous legislation is thrown on it. In the first
Commonwealth Act, 172 submitting to the Filipino people for approval or
disapproval certain amendments to the original ordinance appended to the
1935 Constitution, it was made clear that the election for such purpose was
to "be conducted in conformity with the provisions of the Election Code
insofar as the same may be applicable." 173 Then came the statute, 174
calling for the plebiscite on the three 1940 amendments providing for a
bicameral Congress or a Senate and a House of Representatives to take the
place of a unicameral National Assembly, 175 reducing the term of the
President to four years but allowing his re-election with the limitation that he
cannot serve more than eight consecutive years, 176 and creating an
independent Commission on Elections. 177 Again, it was expressly provided
that the election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 178 The approval of
the present parity amendment was by virtue of a Republic Act 179 which
specifically made applicable the then Election Code. 180 There is a similar
provision in the legislation, 181 which in contemplation of the 1971
Constitutional Convention, saw to it that there be an increase in the
membership of the House of Representatives to a maximum of one hundred
eighty and assured the eligibility of senators and representatives to become
members of such constituent body without forfeiting their seats, as proposed
amendments to be voted on in the 1967 elections. 182 That is the consistent
course of interpretation followed by the legislative branch. It is most
persuasive, if not controlling. The restraints thus imposed would set limits to
the Presidential action taken, even on the assumption that either as an
agent of the Constitutional Convention or under his martial law prerogatives,
he was not devoid of power to specify the mode of ratification. On two vital
points, who can vote and how they register their will, Article XV had been
given a definitive construction. That is why I fail to see sufficient justification
for this Court affixing the imprimatur of its approval on the mode employed
for the ratification of the revised Constitution as reflected in Proclamation
No. 1102.
4. Nor is the matter before us solely to be determined by the failure
to comply with the requirements of Article XV. Independently of the lack of
validity of the ratification of the new Constitution, if it be accepted by the
people, in whom sovereignty resides according to the Constitution, 183 then
this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is
meaningless if it does not imply, to follow Laski, that the nation as a whole
constitutes the "single center of ultimate reference," necessarily the
possessor of that "power that is able to resolve disputes by saying the last
word." 184 If the origins of the democratic polity enshrined in the 1935
Constitution with the declaration that the Philippines is a republican state
could be traced back to Athens and to Rome, it is no doubt true, as McIver
pointed out, that only with the recognition of the nation as the separate
political unit in public law is there the juridical recognition of the people
composing it "as the source of political authority." 185 From them, as Corwin
did stress, emanate "the highest possible embodiment of human will," 186
which is supreme and must be obeyed. To avoid any confusion and in the
interest of clarity, it should be expressed in the manner ordained by law.
Even if such were not the case, however, once it is manifested, it is to be
accepted as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit. Its officials
must act accordingly. No agency is exempt such a duty, not even this Court.
In that sense, the lack of regularity in the method employed to register its
wishes is not fatal in its consequences. Once the fact of acceptance by the
people of a new fundamental law is made evident, the judiciary is left with
no choice but to accord it recognition. The obligation to render it obeisance
falls on the courts as well.
There are American State decisions that enunciate such a doctrine.
While certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller vs. Johnson, 187 decided in 1892, it was set forth in the
opinion of Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the purpose of framing
a new constitution and the election of delegates. It provided that before any
form of constitution made by them should become operative, it should be
submitted to the voters of the state and ratified by a majority of those
voting. The constitution then in force authorized the legislature, the
preliminary steps having been taken, to call a convention "for the purpose of
readopting, amending, or changing" it but contained no provision giving the
legislature the power to require a submission of its work to a vote of the
people. The convention met in September, 1890. By April, 1891, it
completed a draft of a constitution, submitted it to a popular vote, and then
adjourned until September following. Its work was approved by a majority.
When the convention reassembled, the delegates made numerous changes
in the instrument. As thus amended, it was promulgated by the convention
of September 28, 1891, as the new constitution. An action was brought to
challenge its validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of men, not selected
by the people according to the forms of law, were to formulate an instrument
and declare it the constitution, it would undoubtedly be the duty of the
courts to declare its work a nullity. This would be revolution, and this the
courts of the existing government must resist until they are overturned by
power, and a new government established. The convention, however, was
the offspring of law. The instrument which we are asked to declare invalid as
a constitution has been made and promulgated according to the forms of
law. It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution,
and are now daily doing so . . . While the judiciary should protect the rights
of the people with great care and jealousy, because this is its duty, and also
because, in times of great popular excitement, it is usually their last resort,
yet it should at the same time be careful not to overstep the proper bounds
of its power, as being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty requires, the overthrow of the
work of the convention." 188 In Taylor vs. Commonwealth, 189 a 1903
decision, it was contended that the Virginia Constitution proclaimed in 1902
is invalid as it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people. The Court rejected
such a view. As stated in the opinion of Justice Harrison: "The Constitution of
1902 was ordained and proclaimed by a convention duly called by direct
vote of the people of the state to revise and amend the Constitution of 1869.
The result of the work of the convention has been recognized, accepted, and
acted upon as the only valid Constitution of the state by the Governor in
swearing fidelity to it and proclaiming it, as directed thereby; by the
Legislature in its formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the convention which assembled in
the city of Richmond on the 12th day of June, 1901, as the Constitution of
Virginia; by the individual oaths of its members to support it, and by
enforcing its provisions; and by the people in their primary capacity by
peacefully accepting it and acquiescing in it, by registering as voters under it
to the extent of thousands throughout the state, and by voting, under its
provisions, at a general election for their representatives in the Congress of
the United States. The Constitution having been thus acknowledged and
accepted by the officers administering the government and by the people of
the state, and there being no government in existence under the
Constitution of 1869 opposing or denying its validity, we have no difficulty in
holding that the Constitution in question, which went into effect at noon on
the 10th day of July, 1902, is the only rightful, valid, and existing Constitution
of this state, and that to it all the citizens of Virginia owe their obedience and
loyal allegiance." 190
It cannot be plausibly asserted then that premises valid in law are
lacking for the claim that the revised Constitution has been accepted by the
Filipino people. What is more, so it has been argued, it is not merely a case
of its being implied. Through the Citizens Assemblies, there was a plebiscite
with the result as indicated in Proclamation No. 1102. From the standpoint of
respondents then, they could allege that there was more than just mere
acquiescence by the sovereign people. Its will was thus expressed formally
and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its preference.
Nor is the fact that Filipinos of both sexes above the age of fifteen were
given the opportunity to vote to be deplored. The greater the base of mass
participation, the more there is fealty to the democratic concept. It does
logically follow likewise that all such circumstances being conceded, then no
justiciable question may be raised. This Court is to respect what had thus
received the people's sanction. That is not for me though the whole of it.
Further scrutiny even then is not entirely foreclosed. There is still an aspect
that is judicial, an inquiry may be had as to whether such indeed was the
result. This is no more than what the courts do in election cases. There are
other factors to bear in mind. The fact that the President so certified is well-
nigh conclusive. There is in addition the evidence flowing from the conditions
of peace and stability. There thus appears to be conformity to the existing
order of things. The daily course of events yields such a conclusion. What is
more, the officials under the 1935 Constitution, including practically all
Representatives and a majority of the Senators, have signified their assent to
it. The thought persists, however, that as yet sufficient time has not elapsed
to be really certain.
Nor is this all. There is for me an obstacle to the petitions being
dismissed for such ascertainment of popular will did take place during a
period of martial law. It would have been different had there been that
freedom of debate with the least interference, thus allowing a free market of
ideas. If it were thus, it could be truly said that there was no barrier to
liberty of choice. It would be a clear-cut decision either way. One could be
certain as to the fact of the acceptance of the new or of adherence to the
old. This is not to deny that votes are cast by individuals with their personal
concerns uppermost in mind, worried about their immediate needs and
captive to their existing moods. That is inherent in any human institution,
much more so in a democratic polity. Nor is it open to any valid objection
because in the final analysis the state exists for the individuals who in their
collectivity compose it. Whatever be their views, they are entitled to respect.
It is difficult for me, however, at this stage to feel secure in the conviction
that they did utilize the occasion afforded to give expression to what was
really in their hearts. This is not to imply that such doubt could not be
dispelled by evidence to the contrary. If the petitions be dismissed however,
then such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable
to join the ranks of my esteemed brethren who vote for the dismissal of
these petitions. I cannot yield an affirmative response to the plea of
respondents to consider the matter closed, the proceedings terminated once
and for all. It is not an easy decision to reach. It has occasioned deep
thought and considerable soul-searching. For there are countervailing
considerations that exert a compulsion not easy to resist. It can be asserted
with truth, especially in the field of social and economic rights, that with the
revised Constitution, there is an auspicious beginning for further progress.
Then too it could resolve what appeared to be the deepening contradictions
of political life, reducing at times governmental authority to near impotence
and imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy grows. It
is one which has all the earmarks of being responsive to the dominant needs
of the times. It represents an outlook cognizant of the tensions of a turbulent
era that is the present. That is why for some what was done represented an
act of courage and faith, coupled with the hope that the solution arrived at is
a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being further
considered, the least interference, with the executive department. The
President in the discharge of all his functions is entitled to obedience. He
remains the commander-in-chief with all the constitutional power it implies.
Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue the even tenor of their ways. They are
free to act according to its tenets. That was so these past few weeks, even
after that petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to
remain even if the motions to dismiss were not granted. It might be asked
though, suppose the petition should prevail? What then? Even so, the
decision of this Court need not be executory right away. Such a disposition
of a cast before this Court is not novel. That was how it was done in the
Emergency Powers Act controversy. 191 Once compliance is had with the
requirements of Article XV of the 1935 Constitution, to assure that the
coming force of the revised charter is free from any taint of infirmity, then all
doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality. What is
more, it may give the impression of reliance on what may, for the practical
man of affairs, be no more than gossamer distinctions and sterile
refinements unrelated to events. That may be so, but I find it impossible to
transcend what for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound to apply with
undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed
away by the advancing tides of the present. The introduction of novel
concepts may be carried only so far though. As Cardozo put the matter: "The
judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal
of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated to
'the primordial necessity of order in the social life.' Wide enough in all
conscience is the field of discretion that remains." 192 Moreover what made
it difficult for this Court to apply settled principles, which for me have not lost
their validity, is traceable to the fact that the revised Constitution was made
to take effect immediately upon ratification. If a period of time were allowed
to elapse precisely to enable the judicial power to be exercised, no
complication would have arisen. Likewise, had there been only one or two
amendments, no such problem would be before us. That is why I do not see
sufficient justification for the orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that
it ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me to vote
the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly
deals with the momentous issues of the cases at bar in all their complexity
commands my concurrence.
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
The unprecedented and precedent-setting issue submitted by
petitioners for the Court's resolution is the validity and constitutionality of
Presidential Proclamation No. 1102 issued on January 17, 1973, certifying
and proclaiming that the Constitution proposed by the 1971 Constitutional
Convention "has been ratified by an overwhelming majority of all the votes
cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported
ratification of the proposed Constitution by means of the Citizens Assemblies
has substantially complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification." 193
A necessary corollary issue is whether the purported ratification of the
proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially complied
with its own mandate that "(T)his Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite called for
the purpose and except as herein provided, shall supersede the Constitution
of Nineteen hundred and thirty-five and all amendments thereto." 194
Respondents contend that "(A)lthough apparently what is sought to be
annulled is Proclamation No. 1102, what petitioners really seek to invalidate
is the new Constitution", and their actions must be dismissed, because:
— "the Court may not inquire into the validity of the procedure
for ratification" which is "political in character" and that what is sought
to be invalidated is not an act of the President but of the people:
— "(T)he fact of approval of the new Constitution by an

overwhelming majority of the votes cast as declared and certified in
Proclamation No. 1102 is conclusive on the courts;
— "Proclamation No. 1102 was issued by the President in the

exercise of legislative power under martial law . . . Alternatively, or
contemporaneously, he did so as 'agent' of the Constitutional
Convention;"
— "alleged defects, such as absence of secret voting,

enfranchisement of persons less than 21 years, non-supervision (by)
t h e Comelec are matters not required by Article XV of the 1935
Constitution"; (sic)

— "after ratification, whatever defects there might have been in
the procedure are overcome and mooted (and muted) by the fact of
ratification"; and
— "(A)ssuming finally that Article XV of the 1935 Constitution was

not strictly followed, the ratification of the new Constitution must
nonetheless be respected. For the procedure outlined in Article XV was
not intended to be exclusive of other procedures, especially one which
contemplates popular and direct participation of the citizenry . . . ." 195
To test the validity of respondents' submittal that the Court, in

annulling Proclamation No. 1102 would really be "invalidating the new
Constitution", the terms and premises of the issues have to be defined.
— Respondents themselves assert that "Proclamation No.
1102 . . . is plainly merely declaratory of the fact that the 1973
Constitution has been ratified and has come into force." 196
— The measure of the fact of ratification is Article XV of the
1935 Constitution. This has been consistently held by the Court in
the Gonzales: 197 and Tolentino 198 cases.
— In the Tolentino case, this Court emphasized "that the
provisions of Section 1 of Article XV of the Constitution, dealing
with the procedure or manner of amending the fundamental law
are binding upon the Convention and the other departments of the
government. It must be added that . . . they are no less binding
upon the people." 199
— In the same Tolentino case, this Court further proclaimed
that "as long as any amendment is formulated and submitted
under the aegis of the present Charter, any proposal for such
amendment which is not in conformity with the letter, spirit and
intent of the Charter for effecting amendments, cannot receive the
sanction of this Court." 200
— As continues to be held by a majority of this Court, proposed
amendments to the Constitution "should be ratified in only one
way, that is, in an election or plebiscite held in accordance with
law and participated in only by qualified and duly registered
voters" 201 and under the supervision of the Commission on
Elections. 202
— Hence, if the Court declares Proclamation 1102 null and
void because on its face, the purported ratification of the proposed
Constitution has not faithfully nor substantially observed nor
complied with the mandatory requirements of Article XV of the
(1935) Constitution, it would not be "invalidating" the proposed
new Constitution but would be simply declaring that the
announced fact of ratification thereof by means of the Citizens
Assemblies referendums does not pass the constitutional test and
that the proposed new Constitution has not constitutionally come
into existence.
— Since Proclamation 1102 is acknowledged by respondent
to be "plainly merely declaratory" of the disputed fact of
ratification, they cannot assume the very fact to be established
and beg the issue by citing the self-same declaration as proof of
the purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not) result"
from a judicial declaration of nullity of the purported ratification is raised by
the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the
Emergency Powers cases, 203 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on August 26,
1949 for lack of the required six (6) votes, finally declared in effect that the
pre-war emergency powers delegated by Congress to the President, under
Commonwealth Act 671 in pursuance of Article VI, Section 26 of the
Constitution, had ceased and became inoperative at the latest in May, 1946
when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good faith
and with the best of intentions by three successive Presidents, and some of
them may have already produced extensive effects on the life of the nation"
— in the same manner as may have arisen under the bona fide acts of the
President now in the honest belief that the 1972 Constitution had been
validly ratified by means of the Citizens Assemblies referendums — and
indicated the proper course and solution therefor, which were duly abided by
and confusion and disorder as well as harm to public interest and innocent
parties thereby avoided as follows:
"Upon the other hand, while I believe that the emergency powers
had ceased in June 1945, I am not prepared to hold that all executive
orders issued thereafter under Commonwealth Act No. 671, are per se
null and void. It must be borne in mind that these executive orders had
been issued in good faith and with the best of intentions by three
successive Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance,
Executive Order No. 73, issued on November 12, 1945, appropriating
the sum of P6,750,000 for public works; Executive Order No. 86, issued
on January 7, 1946, amending a previous order regarding the
organization of the Supreme Court; Executive Order No. 89, issued on
January 1, 1946, reorganizing the Courts of First Instance; Executive
Order No. 184, issued on November 19, 1948, controlling rice and
palay to combat hunger; and other executive orders appropriating
funds for other purposes. The consequences of a blanket nullification of
all these executive orders will be unquestionably serious and harmful.
And I hold that before nullifying them, other important circumstances
should be inquired into, as for instance, whether or not they have been
ratified by Congress expressly or impliedly, whether their purposes
have already been accomplished entirely or partially, and in the last
instance, to what extent; acquiescence of litigants; de facto officers;
acts and contracts of parties acting in good faith; etc. It is my opinion
that each executive order must be viewed in the light of its peculiar
circumstances, and, if necessary and possible, before nullifying it,
precautionary measures should be taken to avoid harm to public
interest and innocent parties." 204
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the executive
orders on rentals and export control but to defer judgment on the Rodriguez
and Barredo petitions for judicial declarations of nullity of the executive
orders appropriating the 1949-1950 fiscal year budget for the government
and P6 million for the holding of the 1949 national elections. After rehearing,
he further voted to also declare null and void the last two executive orders
appropriating funds for the 1949 budget and elections, completing the
"sufficient majority" of six as against four dissenting justices "to pronounce a
valid judgment on that matter." 205
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and possible
"harmful consequences" in the following passage, which bears re-reading:
"However, now that the holding of a special session of Congress

for the purpose of remedying the nullity of the executive orders in
question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned by Mr.
Justice Tuason declaring that these two executive orders were issued
without authority of law.
"While in voting for a temporary deferment of the judgment I was

moved by the belief that positive compliance with the Constitution by
the other branches of the Government, which is our prime concern in
all these cases, would be effected, and indefinite deferment will
produce the opposite result because it would legitimize a prolonged or
permanent evasion of our organic law. Executive orders which are, in
our opinion, repugnant to the Constitution, would be given permanent
life, opening the way or practices which may undermine our
constitutional structure.
"The harmful consequences which, as I envisioned in my

concurring opinion, would come to pass should the said executive
orders by immediately declared null and void, are still real. They have
not disappeared by reason of the fact that a special session of
Congress is not now forthcoming. However, the remedy now lies in the
hands of the Chief Executive and of Congress, for the Constitution vests
in the former the power to call a special session should the need for
one arise, and in the latter, the power to pass a valid appropriations
act.
"That Congress may again fail to pass a valid appropriations act

is a remote possibility, for under the circumstances is fully realizes its
great responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers
may, if he so desires, compel Congress to remain in special session till
it approves the legislative measures most needed by the country.
"Democracy is on trial in the Philippines, and surely it will emerge

victorious as a permanent way of life in this country, if each of the
great branches of the Government, within its own allocated sphere,
complies with its own constitutional duty, uncompromisingly and
regardless of difficulties.
"Our Republic is still young, and the vital principles underlying its
organic structure should be maintained firm and strong, hard as the
best of steel, so as to insure its growth and development along solid
lines of a stable and vigorous democracy." 206
The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders)
likewise observed that "(T)he truth is that under our concept of
constitutional government, in times of extreme perils more than in normal
circumstances 'the various branches, executive, legislative, and judicial,'
given the ability to act, are called upon 'to perform the duties and discharge
the responsibilities committed to them respectively.'" 207
It should be duly acknowledged that the Court's task of discharging its
duty and responsibility has been considerably lightened by the President's
public manifestation of adherence to constitutional processes and of working
within the proper constitutional framework as per his press conference of
January 20, 1973, wherein he stated that "(T)he Supreme Court is the final
arbiter of the Constitution. It can and will probably determine the validity of
this Constitution. I did not want to talk about this because actually there is a
case pending before the Supreme Court. But suffice it to say that I recognize
the power of the Supreme Court. With respect to appointments, the matter
falls under a general provision which authorizes the Prime Minister to appoint
additional members to the Supreme Court. Until the matter of the new
Constitution is decided, I have no intention of utilizing that power." 208
Thus, it is that as in an analogous situation wherein the state Supreme
Court of Mississippi held that the questions of whether the submission of the
proposed constitutional amendment of the State Constitution providing for
an elective, instead of an appointive, judiciary and whether the proposition
was in fact adopted, were justiciable and not political questions, we may
echo the words therein of Chief Justice Whitfield that "(W)e do not seek a
jurisdiction not imposed upon us by the Constitution. We could not, if we
would, escape the exercise of that jurisdiction which the Constitution has
imposed upon us. In the particular instance in which we are now acting, our
duty to know what the Constitution of the state is, and in accordance with
our oaths to support and maintain it in its integrity, imposed on us a most
difficult and embarrassing duty, one which we have not sought, but one
which, like all others, must be discharged.'" 209
I
In confronting the issues at bar, then, with due regard for my
colleagues' contrary views, we are faced with the hard choice of maintaining
a firm and strict — perhaps, even rigid — stand that the Constitution is a
"superior paramount law, unchangeable by ordinary means" save in the
particular mode and manner prescribed therein by the people, who, in
Cooley's words, so "tied up (not only) the hands of their official agencies, but
their own hands as well" 210 in the exercise of their sovereign will or a
liberal and flexible stand that would consider compliance with the
constitutional article on the amending process as merely directory rather
than mandatory.
The first choice of a strict stand, as applied to the cases at bar,
signifies that the Constitution may be amended in toto or otherwise
exclusively "by approval by a majority of the votes cast an election at which
the amendments are submitted to the people for their ratification", 211
participated in only by qualified and duly registered voters twenty-one years
of age or over 212 and duly supervised by the Commission on Elections, 213 in
accordance with the cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of
said requirements on the theory urged by respondents that "the procedure
outlined in Article XV was not intended to be exclusive of other procedures
especially one which contemplates popular and direct participation of the
citizenry", 214 that the constitutional age and literacy requirements and
other statutory safeguards for ascertaining the will of the majority of the
people may likewise be changed as "suggested, if not prescribed, by the
people (through the Citizens Assemblies) themselves", 215 and that the
Comelec is constitutionally "mandated to oversee . . . elections (of public
officers) and not plebiscites." 216
To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison 217 the U.S. Supreme Court's
power of judicial review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount
law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, is alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a
legislative act, contrary to the Constitution, is not law; if the latter part be
true, then written constitutions are absurd attempts on the part of a people,
to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third
later in the 1936 landmark case of Angara vs. Electoral Commission, 218 "
(T)he Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they
should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of "determining the
nature, scope and extent of such powers" and stressed that "when the
judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments . . . but only asserts the solemn
and sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of
McCulloch vs. Maryland 219 the "climactic phrase," 220 "we must never
forget that it is a constitution we are expounding," — termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law — most important because most comprehensive and
comprehending." 221 This enduring concept to my mind permeated to this
Court's exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Convention's behalf "that the issue . . . is
a political question and that the Convention being a legislative body of the
highest order is sovereign, and as such, its acts impugned by petitioner are
beyond the control of Congress and the Courts." 222
This Court therein made its unequivocal choice of strictly requiring
faithful (which really includes substantial) compliance with the mandatory
requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971
prohibiting the submittal in an advance election of the 1971 Constitutional
Convention's Organic Resolution No. 1 proposing to amend Article V, Section
1 of the Constitution by lowering the voting age to 18 years (vice 21 years)
223 "without prejudice to other amendments that will be proposed in the
future . . . on other portions of the amended section", this Court stated that
"the constitutional provision in question (as proposed) presents no doubt
which may be resolved in favor of respondents and intervenors. We do not
believe such doubt can exist only because it is urged that the end sought to
be achieved is to be desired. Paraphrasing no less than the President of
Constitutional Convention of 1934, Claro M. Recto, let those who would put
aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly in order to attain some laudable objective bear
in mind that someday somehow others with purportedly more laudable
objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of
their own folly." 224
2. This Court held in Tolentino that:
". . . as to matters not related to its internal operation and the

performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We hold
that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an
ordinary legislation. Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such as
the one our founding fathers have chosen for this nation, and which we
of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and
those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for which
it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with
as much care and deliberation. From the very nature of things, the
drafters of an original constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save those that they
may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is not
lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions
are supposed to be designed so as to last for some time, if not for ages,
or for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent,
made so by the people themselves, in regard to the process of their
amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates
of any subsequent convention to claim that they may ignore and
disregard such conditions because they are as powerful and
omnipotent as their original counterparts." 225
3. This Court in Tolentino likewise formally adopted the doctrine of

proper submission first advanced in Gonzales vs. Comelec, 226 thus:
"We are certain no one can deny that in order that a plebiscite
for the ratification of an amendment to the Constitution may be validly
held, it must provide the voter not only sufficient time but ample basis
for an intelligent appraisal of the nature of the amendment per se as
well as its relation to the other parts of the Constitution with which it
has to form a harmonious whole. In the context of the present state of
things, where the Convention has hardly started considering the merits
of hundreds, if not thousands, proposals to amend the existing
Constitution, to present to the people any single proposal or a few of
them cannot comply with this requirement. We are of the opinion that
the present Constitution does not contemplate in Section 1 of Article
XV a plebiscite or 'election' wherein the people are in the dark as to
frame of reference they can base their judgment on. We reject the
rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are
stating the sole purpose of the proposed amendment is to enable the
eighteen year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the
proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, 'no
proper submission.'" 227
4. Four other members of the Court 228 in a separate concurrence

i n Tolentino, expressed their "essential agreement" with Justice Sanchez'
separate opinion in Gonzales on the need for "fair submission (and)
intelligent consent or rejection" as "minimum requirement that must be met
in order that there can be a proper submission to the people of a proposed
constitutional amendment" thus:
". . . amendments must be fairly laid before the people for their
blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word 'submitted' can only mean
that the government, within its maximum capabilities, should strain
every effort to inform every citizen of the provisions to be amended,
and the proposed amendments and the meaning, nature and effects
thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there
is no submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in effect directs is
that the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For as we have earlier stated, one thing
is submission and another is ratification. There must be fair
submission, intelligent consent or rejection" 229
They stressed further the need for undivided attention, sufficient

information and full debate, conformably to the intendment of Article XV,
Section 1 of the Constitution, in this wise:
"A number of doubts or misgivings could conceivably and
logically assail the average voter. Why should the voting age be
lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or
15? Is the 18-year old as mature as the 21-year old so that there is no
need of an educational qualification to entitle him to vote? In this age
of permissiveness and dissent, can the 18-year old be relied upon to
vote with judiciousness when the 21-year old, in the past elections, has
not performed so well? If the proposed amendment is voted down by
the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members of
the Convention have future political plans which they want to begin to
subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year old
should not also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to render compulsory military service
under the colors? Will the age of contractual consent be reduced to 18
years? If I vote against this amendment, will I not be unfair to my own
child who will be 18 years old, come 1973?
"The above are just samplings from here, there and everywhere
— from a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added
to the already long litany. And the answers cannot be had except as
the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
"Scanning the contemporary scene, we say that the people are

not, and by election time will not be, sufficiently informed of the
meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to deliberate
thereon conscientiously. They have been and are effectively distracted
from a full and dispassionate consideration of the merits and demerits
of the proposed amendment by their traditional pervasive involvement
in local elections and politics. They cannot thus weigh in tranquility the
need for and the wisdom of the proposed amendment." 230
5. This Court therein dismissed the plea of disregarding the

mandatory requirements of the amending process "in favor of allowing the
sovereign people to express their decision on the proposed amendments" as
"anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law," in the following terms:
". . . The preamble of the Constitution says that the Constitution

has been ordained by the 'Filipino people, imploring the aid of Divine
Providence.' Section 1 of Article XV is nothing more than a part of the
Constitution thus ordained by the people. Hence, in construing said
section, We must read it as if the people had said, 'This Constitution
may be amended, but it is our will that the amendment must be
proposed and submitted to Us for ratification only in the manner herein
provided.' . . . Accordingly, the real issue here cannot be whether or not
the amending process delineated by the present Constitution may be
disregarded in favor of allowing the sovereign people to express their
decision on the proposed amendments, if only because it is evident
that the very idea of departing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law; rather, it is whether or not the provisional
nature of the proposed amendment and the manner of its submission
to the people for ratification or rejection conform with the mandate of
the people themselves in such regard, as expressed in the Constitution
itself." 231
6. This Court, in not heeding the popular clamor, thus stated its
position: "(I)t would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be
carried astray by considerations other than the imperatives of the rule of law
and of the applicable provisions of the Constitution. Needless to say, in a
larger measure than when it binds other departments of the government or
any other official or entity, the Constitution imposes upon the Court the
sacred duty to give meaning and vigor to the Constitution, by interpreting
and construing its provisions in appropriate cases with the proper parties
and by striking down any act violative thereof. Here, as in all other cases,
We are resolved to discharge that duty." 232
7. The Chief Justice, in his separate opinion in Tolentino concurring
with this Court's denial of the motion for reconsideration, succinctly restated
this Court's position on the fundamentals, as follows:
— On the premature submission of a partial amendment

proposal, with a "temporary provisional or tentative character": — ". . .
a partial amendment would deprive the voters of the context which is
usually necessary for them to make a reasonably intelligent appraisal
of the issue submitted for their ratification or rejection . . . Then, too,
the submission to a plebiscite of a partial amendment, without a
definite frame of reference, is fraught with possibilities which may
jeopardize the social fabric. For one thing, it opens the door to wild
speculations. It offers ample opportunities for overzealous leaders and
members of opposing political camps to unduly exaggerate the pros
and cons of the partial amendment proposed. In short, it is apt to breed
false hopes and create wrong impressions. As a consequence, it is
bound to unduly strain the people's faith in the soundness and validity
of democratic processes and institutions."
— On the plea to allow submission to the sovereign people of the

"fragmentary and incomplete" proposal, although inconsistent with the
letter and spirit of the Constitution: "The view, has, also, been
advanced that the foregoing considerations are not decisive on the
issue before Us, inasmuch as the people are sovereign, and the partial
amendment involved in this case is being submitted to them. The issue
before Us is whether or not said partial amendment may be validly
submitted to the people for ratification 'in a plebiscite to coincide with
the local elections in November 1971,' and this particular issue will not
be submitted to the people. What is more, the Constitution does not
permit its submission to the people. The question sought to be settled
in the scheduled plebiscite is whether or not the people are in favor of
the reduction of the voting age."
— On a "political" rather than "legalistic" approach: "Is this

approach to the problem too 'legalistic? This term has several possible
connotations. It may mean strict adherence to the law, which in the
case at bar is the Supreme Law of the land. On this point, suffice it to
say that, in compliance with the specific mandate of such Supreme
Law, the members of the Supreme Court have taken the requisite 'oath
to support and defend the Constitution.' . . . Then, again, the term
'legalistic' may be used to suggest inversely that the somewhat
strained interpretation of the Constitution being urged upon this Court
b e tolerated or, at least, overlooked, upon the theory that the partial
amendment on the voting age is badly needed and reflects the will of
the people, specially the youth. This course of action favors, in effect,
the adoption of a political approach, inasmuch as the advisability of the
amendment and an appraisal of the people's feeling thereon political
matters. In fact, apart from the obvious message of the mass media,
and, at times, of the pulpit, the Court has been literally bombarded
with scores of handwritten letters, almost all of which bear the
penmanship and the signature of girls, as well as the letterhead of
some sectarian educational institutions, generally stating that the
writer is 18 years of age and urging that she or he be allowed to vote.
Thus, the pressure of public opinion has been brought to bear heavily
upon the Court for a reconsideration of its decision in the case at bar.
"As above stated, however, the wisdom of the amendment and

the popularity thereof are political questions beyond our province. In
fact, respondents and the intervenors originally maintained that We
have no jurisdiction to entertain the petition herein, upon the ground
that the issue therein raised is a political one. Aside from the absence
of authority to pass upon political question, it is obviously improper and
unwise for the bench to delve into such questions owing to the danger
o f getting involved in politics, more likely of a partisan nature, and,
hence, of impairing the image and the usefulness of courts of justice as
objective and impartial arbiters of justiciable controversies.
"Then, too, the suggested course of action, if adopted, would

constitute a grievous disservice to the people and the very Convention
itself. Indeed, the latter and the Constitution it is in the process of
drafting stand essentially for the Rule of Law. However, as the Supreme
Law of the land, a Constitution would not be worthy of its name, and
the Constitution called upon to draft it would be engaged in a futile
undertaking, if we did not exact faithful adherence to the fundamental
tenets set forth in the Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved, consented to or even
overlooked a circumvention of said tenets and provisions, because of
the good intention with which Resolution No. 1 is animated, the Court
would thereby become the Judge of the good or bad intentions of the
Convention and thus be involved in a question essentially political in
nature.
"This is confirmed by the plea made in the motions for

reconsideration in favor of the exercise of judicial statesmanship in
deciding the present case. Indeed, politics' is the word commonly used
to epitomize compromise, even with principles, for the sake of political
expediency or the advancement of the bid for power of a given political
party. Upon the other hand, statesmanship is the expression usually
availed of to refer to high politics or politics on the highest level. In any
event, politics, political approach, political expediency and
statesmanship are generally associated, and often identified, with the
dictum that the end justifies the means.' I earnestly hope that the
administration of justice in this country and the Supreme Court, in
particular, will never adhere to or approve or indorse such dictum." 233
8. In the writer's own separate concurring opinion in Tolentino, he

pointed out that although "(M)ovants' submittal that '(T)he primary purpose
for the submission of the proposed amendment lowering the voting age to
the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years
who comprise more than three (3) million of our population to participate in
the ratification of the new Constitution in 1972' so as 'to allow young people
who would be governed by the new Constitution to be given a say on what
kind of Constitution they will have' is a laudable end, . . . those urging the
vitality and importance of the proposed constitutional amendment and its
approval ahead of the complete and final draft of the new Constitution must
seek a valid solution to achieve it in a manner sanctioned by the
amendatory process ordained by our people in the present Constitution" 234
— so that there may be "submitted, not piece- meal, but by way of complete
and final amendments as an integrated whole (integrated either with the
subsisting Constitution or with the new proposed Constitution). . . ."
9. The universal validity of the vital constitutional precepts and
principles above-enunciated can hardly be gainsaid. I fail to see the
attempted distinction of restricting their application to proposals for
amendments of particular provisions of the Constitution and not to so-called
entirely new Constitutions. Amendments to an existing Constitution
presumably may be only of certain parts or in toto, and in the latter case
would give rise to an entirely new Constitution. Where this Court held in
Tolentino that "any amendment of the Constitution is of no less importance
than the whole Constitution itself and perforce must be conceived and
prepared with as much care and deliberation," it would appeal that the
reverse would equally be true; which is to say, that the adoption of a whole
new Constitution would be of no less importance than any particular
amendment and therefore the necessary care and deliberation as well as the
mandatory restrictions and safeguards in the amending process ordained by
the people themselves so that "they (may) be insulated against precipitate
and hasty actions motivated by more or less passing political moods or
fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV
of the Constitution for the amending process only "by approval by a majority
of the votes cast at an election at which the (duly proposed) amendments
are submitted to the people for their ratification"
The people ordained in Article V, Section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of the
body politic", viz, qualified literate voters twenty one years of age or over
with one year's residence in the country and six months' residence in the
municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly
approved in 1940 in accordance with Article XV, for the creation of an
independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and ascertaining the
true will of the electorate — and more, as ruled by this Court in Tolentino, in
the case of proposed constitutional amendments, insuring proper submission
to the electorate of such proposals. 235
2. A Massachusetts case 236 with a constitutional system and
provisions analogous to ours, best defined the uses of the term " people" as
a body politic and " people" in the political sense who are synonymous with
the qualified voters granted the right to vote by the existing Constitution and
who therefore are "the sole organs through which the will of the body politic
can be expressed."
It was pointed out therein that "(T)he word 'people' may have
somewhat varying significations dependent upon the connection in which it
is used. In some connections in the Constitution it is confined to citizens and
means the same as citizens. It excludes aliens. It includes men, women, and
children. It comprehends not only the sane, competent, law-abiding and
educated, but also those who are wholly or in part dependents and charges
upon society by reason of immaturity, mental or moral deficiency or lack of
the common essentials of education. All these persons are secured by the
fundamental guarantees of the Constitution in life, liberty, and property and
the pursuit of happiness, except as these may be limited for the protection
of society."
In the sense of "body politic (as) formed by voluntary association of
individuals" governed by a constitution and common laws in a "social
compact . . . for the common good" and in another sense of "people" in a
"practical sense" for "political purposes" it was therein fittingly stated that "
(I)n this sense, 'people' comprises many who, by reason of want of years, of
capacity or of the educational requirements of Article 20 of the amendments
of the Constitution, can have no voice in government and who yet are
entitled to all the immunities and protection established by the Constitution.
'People' in this aspect is coextensive with the body politic. But it is obvious
that 'people' cannot be used with this broad meaning in a political
signification. The 'people' in this connection means that part of the entire
body of inhabitants who under the Constitution are intrusted with the
exercise of the sovereign power and the conduct of government. The
'people' in the Constitution in a practical sense means those who under the
existing Constitution possess the right to exercise the elective franchise and
who, while that instrument remains in force unchanged, will be the sole
organs through which the will of the body politic can be expressed. 'People'
for political purposes must be considered synonymous with qualified voters.'"
As was also ruled by the U.S. Supreme Court, ". . . While the people are
thus the source of political power, their governments, national and state,
have been limited by constitutions, and they have themselves thereby set
bounds to their own power, as against the sudden impulse of mere
majorities." 237
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification", it
seems obvious as above-stated that " people" as therein used must be
considered synonymous with "qualified voters" as enfranchised under Article
V, Section 1 of the Constitution — since only " people" who are qualified
voters can exercise the right of suffrage and cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate
safeguards as ordained by the Constitution and implementing statutes to
ascertain and record the will of the people in free, orderly and honest
elections supervised by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for the process of
amending in toto or in part the supreme law of the land.
Even at barrio level 238 the Revised Barrio Charter fixes certain
safeguards for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. — A
plebiscite may be held in the barrio when authorized by a majority vote of
the members present in the barrio assembly, there being a quorum, or when
called by at least four members of the barrio council: Provided, however,
That no plebiscite shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 239
As to voting at such barrio plebiscites, the Charter further requires that
"(A)ll duly registered barrio assembly members qualified to vote may vote in
the plebiscite. Voting procedures may be made either in writing as in regular
elections, and/or declaration by the voters to the board of election tellers."
240
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the barrio
council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances" and the required majority vote is
also specified: "(F)or taking action on any of the above enumerated
measures, majority vote of all the barrio assembly members registered in
the list of the barrio secretary is necessary." 241
The qualifications for voters in such barrio plebiscites and elections of
barrio officials 242 comply with the suffrage qualifications of Article V,
Section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of
Voters and Candidates. — Every citizen of the Philippines, twenty one years
of age or over, able to read and write, who has been a resident of the barrio
during the six months immediately preceding the election, duly registered in
the list of voters kept by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections." 243
IV
1. Since it appears on the face of Proclamation 1102 that the
mandatory requirements under the above-cited constitutional articles have
not been complied with and that no election or plebiscite for ratification as
therein provided as well as in Section 16 of Article XVII of the proposed
Constitution itself 244 has been called or held, there cannot be said to have
been a valid ratification.
2. Petitioners raised serious questions as to the veracity and
genuineness of the reports or certificates of results purportedly showing
unaccountable discrepancies in seven figures in just five provinces 245
between the reports as certified by the Department of Local Governments
and the reports as directly submitted by the provincial and city executives,
which latter reports respondents disclaimed inter alia as not final and
complete or as not signed; 246 whether the reported votes of approval of the
proposed Constitution conditioned upon the non-convening of the interim
National Assembly provided in Article XVII, Section 1 thereof, 247 may be
considered as valid; the allegedly huge and uniform votes reported; and
many others.
3. These questions only serve to justify and show the basic validity
of the universal principle governing written constitutions that proposed
amendments thereto or in replacement thereof may be ratified only in the
particular mode or manner prescribed therein by the people. Under Article
XV, Section 1 of our Constitution, amendments thereto may be ratified only
in the one way therein provided, i.e. in an election or plebiscite held in
accordance with law and duly supervised by the Commission on Elections,
and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the vote and interested parties
would have an opportunity to thresh out properly before the Comelec all
such questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question the
very statements and pronouncements in Proclamation 1102 itself which
shows on its face, as already stated, that the mandatory amending process
required by the (1935) Constitution was not observed, the cases at bar need
not reach the stage of answering the host of questions, raised by petitioners
against the procedure observed by the Citizens Assemblies and the reported
referendum results — since the purported ratification is rendered nugatory
by virtue of such non-observance.
5. Finally, as to respondents' argument that the President issued
Proclamation 1102 "as 'agent' of the Constitutional Convention" 248 under
Resolution No. 5844 approved on November 22, 1973, and "as agent of the
Convention the President could devise other forms of plebiscite to determine
the will of the majority vis-a-vis the ratification of the proposed Constitution."
249
The minutes of November 22, 1972, of the Convention, however, do

not at all support this contention. On the contrary, the said minutes fully
show that the Convention's proposal and "agency" was that the President
issue a decree precisely calling a plebiscite for the ratification of the
proposed new Constitution on an appropriate date, under the charge of the
Comelec, and with a reasonable period for an information campaign, as
follows:
"12. Upon recognition by the Chair, Delegate Duavit moved

for the approval of the resolution, the resolution portion of which read
as follows:
'RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971

Constitutional Convention propose to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite for the
ratification of the proposed New Constitution on such appropriate
date as he shall determine and providing for the necessary funds
therefor, and that copies of this resolution as approved in plenary
session be transmitted to the President of the Philippines and the
Commission on Elections for implementation.'
"He suggested that in view of the expected approval of the final

draft of the new Constitution by the end of November 1972 according
to the Convention's timetable, it would be necessary to lay the
groundwork for the appropriate agencies of the government to
undertake the necessary preparation for the plebiscite.
"xxx xxx xxx
"12.2 Interpellating, Delegate Pimentel (V.) contended that

the resolution was unnecessary because Section 15, Article XVII on the
Transitory Provision, which had already been approved on second and
third readings, provided that the new constitution should be ratified in
a plebiscite called for the purpose by the incumbent President.
Delegate Duavit replied that the provision referred to did not include
the appropriation of funds for the plebiscite and that, moreover, the
resolution was intended to serve formal notice to the President and the
Commission on Elections to initiate the necessary preparations.
"xxx xxx xxx
"12.4 Interpellating, Delegate Madarang suggested that a

reasonable period for an information campaign was necessary in order
to properly apprise the people of the implications and significance of
the new charter. Delegate Duavit agreed, adding that this was
precisely why the resolution was modified to give the President the
discretion to choose the most appropriate date for the plebiscite.
"12.5 Delegate Laggui asked whether a formal

communication to the President informing him of the adoption of the
new Constitution would not suffice considering that under Section 15 of
the Transitory Provisions, the President would be duty-bound to call a
plebiscite for its ratification. Delegate Duavit replied in the negative,
adding that the resolution was necessary to serve notice to the proper
authorities to prepare everything necessary for the plebiscite.
"12.6 In reply to Delegate Britanico, Delegate Duavit stated

that the mechanics for the holding of the plebiscite would be laid down
by the Commission on Elections in coordination with the President.
"12.7 Delegate Catan inquired if such mechanics for the

plebiscite could include a partial lifting of martial law in order to allow
the people to assemble peaceably to discuss the new Constitution.
Delegate Duavit suggested that the Committee on Plebiscite and
Ratification could coordinate with the COMELEC on the matter.
"12.8 Delegate Guzman moved for the previous question.

The Chair declared that there was one more interpellant and that a
prior reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
"12.9 Delegate Astilla suggested in his interpellation that

there was actually no need for such a resolution in view of the
provision of Section 15, Article XVII on the Transitory Provisions.
Delegate Duavit disagreed, pointing out that the said provision did not
provide for the funds necessary for the purpose.
"13. Delegate Ozamiz moved to close the debate and

proceed to the period of amendment.
"13.1 Floor Leader Montejo stated that there were no

reservations to amend the resolution.
"13.2 Delegate Ozamiz then moved for the previous question.

Submitted to a vote, the motion was approved.
"Upon request of the Chair, Delegate Duavit restated the

resolution for voting.
"14.1. Delegate Ordoñez moved for nominal voting.
Submitted to a vote, the motion was lost.
"14.2. Thereupon, the Chair submitted the resolution to a

vote. It was approved by a show of hands." 57
I, therefore, vote to deny respondents' motion to dismiss and to give

due course to the petitions.
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-36283.
7. Who withdrew as petitioner on January 25, 1973.
8. Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now,
after the withdrawal of the latter, the first two (2) only.
9. Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.
10. Napoleon V. Dilag, et al. v. Executive Secretary, et al.
11. Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v.
Commission on Elections, L-28196 & L-28224, Nov. 9, 1967. Italics ours.
12. Art. VI, Sec. 20(1), Constitution.
13. Art. VII, Sec. 10(7), Constitution.
14. Italics ours.
15. See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist,
59 So. Rep. 963; McAdams v. Henley, 273 S.W. 355; Egbert v. City of
Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907; State ex rel. Landis,
Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing Association v.
Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft,
87 So. Rep. 375.
17. Mun. of Malabang vs. Benito, L-28113, Mar. 28, 1969; NAWASA vs. Piguing,
et al., L-35573, Oct. 11, 1968; Fernandez vs. P. Cuerva & Co., L-21114, Nov.
25, 1967; Gonzales vs. Commission on Elections, L-28224, Nov. 29, 1967;
Bara Lidasan vs. COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan vs.
NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin vs. Siva, L-19870,
Mar. 18, 1967; Pelayo vs. Auditor General, L-23825, Dec. 24, 1965; Philippine
Constitution Association vs. Gimenez, L-23326, Dec. 18, 1965; Mun. of La
Carlota vs. NAWASA, L-20232, Sept. 30, 1964; Guevarra vs. Inocentes, L-
25577, Mar. 15, 1966; Gillera vs. Fernandez, L-20741, Jan. 31, 1964;
Siguiente vs. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguillian
vs. Nawasa, L-18540, Nov. 29, 1963; Herrera vs. Liwag, L-20079, Sept. 30,
1963; Aytona vs. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. vs.
Ramos, et al., L-15476, Sept. 19, 1961; Tan vs. De Leon, et al., L-15254,
Sept. 16, 1961; Macias vs. Commission on Elections, L-18684, Sept. 14,
1961; Philippine Tobacco Flue-Curing & Redrying Corp. vs. Sabugo, et al., L-
16017, Aug. 31, 1961; Miller vs. Mardo, L-15138, July 31, 1961; Cu Bu Liong
vs. Estrella, et al., L-14212, July 31, 1961; Pampanga Sugar Development
Co., Inc. vs. Fuentes, et al., L-14738, July 31, 1961; Earnshaw Docks &
Honolulu Iron Works vs. Mardo, et al., L-14759, July 31, 1961; Liwanag vs.
Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura vs. Regional
Office No. 3, etc., L-15582, July 31, 1961; Pitogo vs. Sen Bee Trading Co., et
al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works and
Communications, L-10405, Dec. 29, 1960; Corominas, Jr. vs. Labor Standards
Commission, L-14837, June 30, 1961; City of Baguio vs. NAWASA, L-12032,
Aug. 31, 1959; City of Cebu vs. NAWASA, L-12892, April 20, 1960; Montes vs.
Civil Service Board of Appeals, 101 Phil. 490; Rutter vs. Esteban, 93 Phil. 68;
Araneta vs. Dinglasan, 84 Phil. 368; Borromeo vs. 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. vs. Brigadier-General Eduardo M. Garcia;
L-33965, Rogelio V. Arienda vs. Secretary of National Defense, et al.; L-
33973, Luzvimindo David vs. Gen. Eduardo Garcia, et al.; L-33962, Felicidad
G. Prudente vs. General Manuel Yan, et al.; L-34004, Domingo E. de Lara vs.
Brigadier General Eduardo M. Garcia; L-34013, Reynaldo Rimando vs.
Brigadier General Eduardo M. Garcia; L-34039, Carlos C. Rabago vs. Brig.
Gen. Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr. vs. General Eduardo
Garcia, et al.; and L-34339, Gary B. Olivar, et al. vs. General 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. Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
30. Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
31. 12 L. ed. 581 (1849).
32. Luther v. Borden, supra, p. 598. Italics ours.
33. In re McConaughy, supra p. 416. Italics ours.
34. 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691 (March 26, 1962).
35. 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
36. In re McConaughy, 119 N.W. 408, 415. Italics ours. The observation as to
the uniformity of authorities on the matter has been reiterated in Winget v.
Holm, 244 N.W. 329, 332.
37. Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 686, 82 S. Ct. 691.
38. See p. 5 of the Petition.
39. Italics 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 or subject of a foreign power, twenty-one years of age or
over, who shall have been a resident of the Philippines for one year and of
the municipality in which he shall offer to vote for six months next preceding
the day of voting is entitled to vote in all elections if comprised within either
of the following three classes:
"(a) Those who, under the laws in force in the Philippine Islands upon the
twenty-eighth day of August, nineteen hundred and sixteen, were legal
voters and had exercised the right of suffrage.
"(b) Those who own real property to the value of five hundred pesos,
declared in their name for taxation purposes for a period of not less than one
year prior to the date of the election, or who annually pay thirty pesos or
more of the established taxes.
"(c) Those who are able to read and write either Spanish, English, or a
native language.
"SEC. 432. Disqualifications. — The following persons shall be disqualified
from voting:
"(a) Any person who, since the thirteenth day of August, eighteen hundred
and ninety-eight, has been sentenced by final judgment to suffer not less
than eighteen months of imprisonment, such disability not having been
removed by plenary pardon.
"(b) Any person who has violated an oath of allegiance taken by him to the
United States.
"(c) Insane or feeble-minded persons.
"(d) Deaf-mutes who cannot read and write.
"(e) Electors registered under subsection (c) of the next preceding section
who, after failing to make a sworn statement to the satisfaction of the board
of inspectors at any of its two meeting for registration and revision, that they
are incapacitated for preparing their ballots due to permanent physical
disability, present themselves at the hour of voting as incapacitated,
irrespective of whether such incapacity be real or feigned."
45. L-34150, October 16 and November 4, 1971.
46. "For taking action on any of the above enumerated measures, majority vote
of all the barrio assembly members registered in the list of the barrio
secretary is necessary."
47. "All duly registered barrio assembly members qualified to vote may vote in
the plebiscite. Voting procedures may be made either in writing as in regular
elections, and/or declaration by the voters to the board of election tellers.
The board of election tellers shall be the same board envisioned by section
8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council
may fill the same."
48. Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113
N.W. 1071; Ellingham v. Dye (1912), 178 Ind. 236, 99 N.E. 1; State v. Marcus,
160 Wis. 354, 152 N.W. 419.
49. In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that
when a state constitution enumerates and fixes the qualifications of those
who may exercise the right of suffrage, the legislature cannot take from nor
add to said qualifications unless the power to do so is conferred upon it by
the constitution itself."
Since suffrage, according to Webster, is a voice given not only in the choice of
a man for an office or trust, but, also, in deciding a controverted question , it
follows, considering the said ruling in Alcantara, that the constitutional
qualifications for voters apply equally to voters in elections to public office
and to voters in a plebiscite.
Similarly, the Revised Election Code provides in its Section 2 that all elections
of public officers by the people and all votings in connection with plebiscites
shall be conducted in conformity with the provisions of said Code.
50. Republic Act No. 6388, section 101 of which, in part, provides:
"SEC. 101. Qualifications prescribed for a voter. — Every citizen of the
Philippines, not otherwise disqualified by law, twenty-one years of age or
over, able to read and write, who shall have resided in the Philippines for one
year and in the city, municipality or municipal district wherein he proposes to
vote for at least six months immediately preceding the election, may vote at
any election.
"xxx xxx xxx"
51. "SEC. 102. Disqualifications. — The following persons shall not be

qualified to vote:
"(a) Any person who has been sentenced by final judgment to suffer an
imprisonment of not less than one year, such disability not having been
removed by plenary pardon: Provided, however, That any person qualified to
vote under this paragraph shall automatically reacquire the right to vote
upon expiration of ten years after service of sentence unless during such
period, he shall have been sentenced by final judgment to suffer an
imprisonment of not less than one year.
"(b) Any person who has been adjudged by final judgment by competent
court of having violated his allegiance to the Republic of the Philippines.
"(c) Insane or feeble-minded persons.
"(d) Persons who cannot prepare their ballots themselves."
52. "SEC. 10. ...
"The following persons shall not be qualified to vote:
"a. Any person who has been sentenced by final judgment to suffer one
year or more of imprisonment, within two years after service of his sentence;
"b. Any person who has violated his allegiance to the Republic of the
Philippines; and
"c. Insane or feeble-minded persons."
53. 20 C.J., 179-181, quoted in Demeterio v. Lopez, 50 Phil. 45, 60. See, also,
Garchitorena v. Crescini, 39 Phil. 258.
54. Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323,
Glenn v. Gnau, 64 S.W. 2d. 168, Italics ours.
55. L-33325 and L-34043, December 29, 1971.
56. Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours.
57. Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours.
58. Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.
59. Art. X, Section 1 of the 1935 Constitution.
60. Ten (10) years.
61. Art. X, Section 2 of the 1935 Constitution.
62. Ibid.
63. Art. X, section 3 of the 1935 Constitution.
64. "SEC. 5. Organization of the Commission on Elections. — The
Commission shall adopt its own rules of procedure. Two members of the
Commission shall constitute a quorum. The concurrence of two members
shall be necessary for the pronouncement or issuance of a decision, order or
ruling.
"The Commission shall have an executive officer and such other subordinate
officers and employees as may be necessary for the efficient performance of
its functions and duties, all of whom shall be appointed by the Commission in
accordance with the Civil Service Law and rules.
"The executive officer of the Commission, under the direction of the Chairman,
shall have charge of the administrative business of the Commission, shall
have the power to administer oaths in connection with all matters involving
the business of the Commission, and shall perform such other duties as may
be required of him by the Commission.
"SEC. 6. Power of the Commission to Investigate and to Hear Controversy
and Issue Subpoena. — The Commission or any of the members thereof shall,
in compliance with the requirement of due process, have the power to
summon the parties to a controversy pending before it, issue subpoenae and
subpoenae duces tecum and otherwise take testimony in any investigation or
hearing pending before it, and delegate such power to any officer of the
Commission who shall be a member of the Philippine Bar. In case of failure of
a witness to attend, the Commission, upon proof of service of the subpoenae
to said witness, may issue a warrant to arrest the witness and bring him
before the Commission or officer before whom his attendance is required.
The Commission shall have the power to punish contempts provided for in
the Rules of Court under the same controversy submitted to the Commission
shall after compliance with the requirements of due process be heard and
decided by it within thirty days after submission of the case.
"The Commission may, when it so requires, deputize any member of any
national or local law enforcement agency and/or instrumentality of the
government to execute under its direct and immediate supervision any of its
final decisions, orders, instructions or rulings.
"Any decision, order or ruling of the Commission on Elections controversies
may be reviewed by the Supreme Court by writ of certiorari in accordance
with the Rules of Court or such applicable laws as may be enacted.
"Any violation of any final executory decision, order or ruling of the
Commission shall constitute contempt thereof."
65. 64 S.W.2d. 168.
66. L-35538, Roces, et al. v. Secretary of National Defense, et al.; L-35539,
Diokno v. Hon. Enrile, et al.; L-35540, Soliven, et al. v. Secretary of National
Defense, et al.; L-35546, Aquino, Jr., et al. v. Hon. Enrile, et al.; L-35547,
Garcia II v. Hon. Enrile, et al.; L-35567, Doronilla, et al. v. Secretary of
National Defense, et al.; L-35573, Rondon v. Hon. Enrile, et al.
67. "PRESIDENTIAL DECREE NO. 86-A
"STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
"WHEREAS, on the basis of preliminary and initial reports from the field as
gathered from barangays (citizens assemblies) that have so far been
established, the people would like to decide for themselves questions or
issues, both local and national, affecting their day-to-day lives and their
future;
"WHEREAS, the barangays (citizens assemblies) would like themselves to be
the vehicle for expressing the views of the people on important national
issues;
"WHEREAS, such barangays (citizens assemblies) desire that they be given
legal status and due recognition as constituting the genuine, legitimate and
valid expression of the popular will; and
"WHEREAS, the people would like the citizens assemblies to conduct
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the convening
of Congress on January 22, 1973, and the elections in November 1973
pursuant to the 1935 Constitution.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution as Commander-in-Chief
of all Armed Forces of the Philippines, do hereby declare as part of the law of
the land the following:
"1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1973, shall constitute the
base for citizen participation in governmental affairs and their collective
views shall be considered in the formulation of national policies or programs
and, wherever practicable, shall be translated into concrete and specific
decision;
"2. Such barangays (citizens assemblies) shall consider vital national issues
now confronting the country, like the holding of the plebiscite on the new
Constitution, the continuation of martial rule, the convening of Congress on
January 22, 1973, and the holding of elections in November 1973, and others
in the future, which shall serve as guide or basis for action or decision by the
national government;
"3. The barangays (citizens assemblies) shall conduct between January 10
and 15, 1973, a referendum on important national issues, including those
specified in paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community Development
immediately thereafter, pursuant to the express will of the people as
reflected in the reports gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
"4. This Decree shall take effect immediately.
"Done in the City of Manila, this 5th day of January, in the year of Our Lord,
nineteen hundred and seventy-three." (Italics ours.)
68. Mc Kinney v. Barker, 180 Ky. 526, 203 S.W. 303, 304.
69. Art. VII, Section 2, 1935 Constitution.
70. Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel.
Sathre v. Bryne, 258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d.
869; Smith v. Bangham, 76 P 2d. 1022; McKim v. Brast, 117 S.E. 875; Head
v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 232.
71. See cases cited in the preceding footnote. See, also, Tiegs v. Patterson,
318 P. 2d. 588; State ex rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d.
632; Williamson v. State Election Board, 431 P. 2d. 352; Baker v. Conway,
108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott, 83
A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of Elections of
Stark County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v.
Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W. 2d. 1; Galloway v.
Bradburn, 82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994.
72. 106 Minn. 392, 119 N.W. 408, 409.
73. 63 N.J. Law, 289, cited in In re McConaughy, supra.
74. 78 Ark. 439, 96 S.W. 396, cited In re McConaughy, supra.
75. See cases listed on page 49, footnotes 3, 4 and 5.
76. On December 19, 1972.
77. 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d.
223, 228; Harris v. Shanahan, 387 P. 2d. 771, 784, 785.
78. 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264
U.S. 543, 547, 548, 68 L. ed. 841, 843, 44 S. Ct. 405.
79. Art. VII, Section 10, paragraph (1).
80. 101 Va. 529, 44 S.E. 754.
81. Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62
C.J.S. 749-750; Guevara v. Inocentes, L-25577, March 15, 1966.
82. Which, in some respects, is regarded as an organ of the Administration, and
the news items published therein are indisputably censored by the
Department of Public Information.
83. Daily Express, November 29, 1972, p. 4. Italics 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. 3.
88. Justice Barredo's language.
89. At p. 16, joint opinion of Justices Makalintal and Castro.
90. Joint Opinion of Justices Makalintal and Castro, pp. 12-16.
91. At p. 8, Idem.
92. 119 N.W. 408, 411-015. Italics ours.
93. The undersigned (Justice Querube C. Makalintal) who had reserved his right
to do so, filed a separate dissenting opinion when the Court denied a motion
for reconsideration, and voted in favor of the validity of the questioned
Resolution. Mr. Justice Enrique M. Fernando joined in the dissent.
94. Thus by Presidential Decree No. 86 what the Constitutional Convention itself
had proposed unsuccessfully as an amendment to the 9135 Constitution,
reducing the voting age from 21 to 18, but the submission of which to a
plebiscite was declared invalid by this Court in Tolentino vs. COMELEC,
became a reality of an even more far-reaching import — since fifteen-year
old were included in the Citizens Assemblies.
95. According to the Solicitor General 92 Congressmen and 15 Senators (both
numbers constituting majorities) have expressed their option.
96. Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
97. Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C.
Sanidad vs. Comelec, L-35929, January 22, 1973; Gerardo Roxas, etc., et al.
vs. Comelec, et al., L-35940, January 22, 1973; Eddie B. Monteclaro vs.
Comelec, et al., L-35941, January 22, 1973; Sedfrey A. Ordoñez, et al., vs.
The National Treasurer of the Philippines, et al., L-35942, January 22, 1973;
Vidal Tan, et al. vs. Comelec, et al., L-35948, January 22, 1973; Jose W.
Diokno, et al. vs. Comelec, L-35953, January 22, 1973; Jacinto Jimenez vs.
Comelec, et al., L-35961, January 22, 1973; Raul M. Gonzales vs. Comelec, et
al., L-35965, January 22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L-
35979, January 22, 1973.
98. Executive Agreements are not included in the corresponding provision of
the 1935 Constitution.
99. It must be recalled that in the Tolentino case, the Constitutional Convention
intended to submit one amendment which was to form part of the
Constitution still being prepared by it separately from the rest of the other
parts of such constitution still unfinished, and We held that a piece-meal
submission was improper. We had no occasion to express any view as to how
a whole new constitution may be ratified.
100. In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was
born in Attica, New York in 1824, died in 1898. Judge Cooley was also
professor and later dean of the Law Department of the University of Michigan
and Justice of the State Supreme Court of Michigan from 1864 to 1885, when
he failed to win re-election to the court.
101. Correction as pointed out in the manifestation dated May 29, 1973 of Atty.
Sedfrey A. Ordoñez, counsel of petitioners in L-36165.
102. "When a house is completely demolished and another is erected on the
same location, do you have a changed, repaired and altered house, or do you
have anew house? Some of the material contained in the old house may be
used again, some of the rooms may be constructed the same, but this does
not alter the fact that you have altogether another or a new house. We
conclude that the instrument as contained in Ga. L. 1945, pp. 8-89, inclusive,
is not an amendment to the constitution of 1877; but on the contrary it is a
completely revised or new constitution." (Wheeler vs. Board of Trustees, 37
S.E. 2d 322, 327).
"Every proposal which affects a change in a Constitution or adds or takes away
from it is an "amendment," while a "revision" implies a re-examination and
statement of the Constitution, or some part of it, in a corrected or improved
form." (Const. Secs. 196, 197, Staples vs. Gilmer, 33 S.E. 2d 49, 53, 183 Va.
613).
"Amendment" and "revision" of constitution are separate procedures each
having a substantial field of application, not mere alternative procedures in
the same field." (McFadden vs. Jordan, 196 P. 2d 787, 797, 32 Cal. 2d 330).
103. Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
104. Baker vs. Carr, 369 U.S. 186; 7 L. ed. 663.
105. Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan,
Minnesota, Nevada, New Hampshire, Oklahoma, Oregon, Utah and
Wyoming in Appendix to this opinion.
106. Leon O. Ty, Seven Months of Martial Law, Daily Express.
107. Panorama, May 6, 1973.
l08. "A written constitution is susceptible of change in two ways: by revolution,
which implies action not pursuant to any provision of the constitution itself;
and by revision, which implies action pursuant to some procedural provision
in the constitution. This distinction is concerned with the quare and not with
the quantum of change. It may be significant, however, that the alleged
alteration does or does not purport to affect the existence of the court itself.
In the nature of things, a revolutionary change does not admit of judicial
power as such to determine the fact of its occurrence. If the revolutionary
constitution sets up a court differently constituted from the pre-revolutionary
court, neither tribunal is confronted with a substantial problem, for neither
can deny the act by which it was created without denying the fact of its
creation. Thus the Supreme Court in Luther vs. Borden, (supra), uses
language substantially parallel with what has been indicated above as the
logical explanation of the Duke of York's case. For the court to give serious
judicial consideration to such a question would present 'the singular
spectacle of a court sitting as a court to declare that we are not a court.'
(Brittle vs. People, 2 Neb. 198, 214 [1873]). And even if the alleged new
constitution purports to leave intact the former court and to permit its work
to go on without hiatus, the decision which the judges must make is still an
individual choice to be made by them as a matter of practical politics. Two
commissions are being held out to them, and if they will act as a court they
must assert under which commission they are acting. To put the matter in
another way, it must be true that in the first case above — of two
constitutions purporting to establish two different courts, — the men who
were judges under the old regime and the men who are called to be judges
under the new have each to decide as individuals what they are to do; and it
may be that they choose at grave peril with the factional outcome still
uncertain. And, although it is not equally obvious, the situation is logically
identical where the same men are nominated to constitute the court under
both the old and the new constitution, at a time when the alleged change is
occurring — if it is — peaceably and against a placid popular background.
Men under such circumstances may write most praiseworthily upon principles
of statesmanship, upon sovereignty and its nature and modes of action, and
upon the bases of government, to justify their choice between the two
commissions. They can assert their choice in the course of purported judicial
action. But they cannot decide as a court, for the decision, once made, by a
retroactive hypothesis excludes any assumption of controversiality in the
premises.
"Where the alleged change occurs not through revolutionary measures but
through what has been called revision, these logical difficulties disappear in
one aspect, but become far more embarrassing in another. Where the
alteration, purports to be made along the lines of a procedural method laid
down in the old constitution, there is a standard which the court can apply
and, by so doing, it can perceive judicially whether or not the change has
followed the prescribed lines. If it has, there is no difficulty in pronouncing as
a matter of law its accomplishment. Only one exception is possible, namely,
the case where the alteration purports at once to abolish the court or to
depose its personnel. Then, although there would be a question of law to be
decided, it may be wondered who there is to decide it. Suppose, however,
the mode of change has failed in some way to conform to a directory
provision of the amending clause of the constitution; is the court to declare
the attempt at alteration unsuccessful? It would seem as a matter of law that
it must do so; and yet what is the situation if the proponents of the change
say, 'It is true that this measure failed under the amending clause, but as a
revolutionary measure it was a success and we insist upon its recognition.'
Clearly the members of the court are now more badly than ever entangled in
the logical difficulties which attend a purported judicial pronouncement upon
the achievement or non-achievement of revolutionary change. For the
temptation will be great to treat the matter as a legal question. The times
are peaceful. The changes probably do not affect the tenure of many offices
of any branch of the government. The popular inertia is likely to allow the
court successfully to assume the question to be one of law. The path of
fallacy is not too strikingly fallacious to the uncritical observer. It may lead to
just results. The judges' personal inclinations will be to show deference to the
expression of popular sentiment which has been given. And yet, if they
declare the change in force, they are truly making a personal declaration
that they believe the change to be the directly expressed will of the
sovereign, which will they assert to be law, but the fact of existence of which
will — and this is the real decision — is not ascertainable in the given case by
any legal means. It is submitted that this is true, and that the conclusions
offered in the discussion of revolutionary change are true, also, whether the
quantum of change involved be vast or almost negligible.
The net result of the preceding discussion is this: that in almost the whole field
of problems which the Duke of York's case and the American constitutional
amendment cases present, the court as a court is precluded from passing
upon the fact of change by a logical difficulty which is not to be surmounted.
It follows that there is no room for considering whether the court ought
graciously and differentially to look to the executive or legislative for a
decision that a change has or has not taken place. In such a context, such a
question becomes wholly moot except for this consideration, that, when the
judges as individuals or as a body of individuals come to decide which king or
which constitution they will support and assert to represent, it may often be
good judgment for them to follow the lead of the men who as a practical
matter are likely to be looked to by the people as more representative of
themselves and conversely are likely to be more directly in touch with
popular sentiment. If, however, the judges hold too strong views of their own
to be able to take this course, they may follow their own leads at their own
hazards. No question of law is involved." (Political Questions, 38 Harvard Law
Review [1924-25], pp. 305-309.)
109 & 110. Ibid., pp. 301-305.
@ The inclusion in the Appendix of provisions for Amendment and Revision in
the State Constitutions, adopted after 1935, is only to stress the fact that the
distinction between Amendment and Revision of Constitution, which existed
at the time of the adoption of the 1935 Constitution, has continued up to the
present.
111. Charito Planas vs. Commission on Elections, et al., L-35925; Pablo Sanidad
vs. Commission on Elections, L-35929; Gerardo Roxas, etc., et al. vs.
Commission on Elections, et al., L-35940; Eddie B. Monteclaro vs. The
Commission on Elections, et al., L-35941; Sedfrey A. Ordoñez, et al. vs. The
National Treasurer of the Philippines, et al., L-35942; Vidal Tan, et al. vs.
Commission on Elections, et al., L-35948; Jose W. Diokno, et al. vs. The
Commission on Elections, L-35953; Jacinto Jimenez vs. Commission on
Elections, et al., L-35961; Raul M. Gonzales vs. The Honorable Commission
on Elections, et al., L-35965; Ernesto Hidalgo vs. Commission on Elections, et
al., L-35979.
112. See Tañada, et al. vs. Cuenco, L-10520, Feb. 28, 1957; Baker vs. Carr, 369
U.S. 186 (1962).
113. See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
114. Cooke vs. Iverson, 108 Minn. 388, 122 NW 251.
115. L-38196, November 9, 1967, 21 SCRA 774.
116. 83 Phil. 1957.
117. McConaughy vs. Secretary of State, 119 N.W. 408, 413-32A Words and
Phrases p. 516. See Also the plebiscite cases, mentioned in footnote 1, ante.
118. Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
119. 39 Phil. 258, 268.
120. 69 Phil. 199. 204.
121. 70 Phil. 28, 31.
122. Memorandum for Respondents, 2.
123. According to the 1935 Constitution: "The Congress in joint session
assembled, by a vote of three-fourths; of all the members of the Senate and
of the House of Representatives voting separately may propose amendments
to this Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the
people for their ratification." Art. XV, Section 1.
124. Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays,
Lerner made this not-entirely-inaccurate observation: "No governmental
institution that consists of a group of legal technicians appointed for life can
ever hope to cope with, much less solve, the exigent problems of our polity."
Ibid., 231. He was referring of course to the Supreme Court of the United
States.
125. Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).
126. Black, The People and the Court (1960).
127. Murphy, elements of Judicial Strategy (1964).
128. Cf. Angara vs. Electoral Commission, 63 Phil. 139 (1936); Tañada vs.
Cuenco, 103 Phil. 1051 (1957); Vera vs. Arca, L-25721, May 26, 1969, 28
SCRA 351.
129. Gonzales vs. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA
774.
130. Tolentino vs. Commission on Elections, L-24150, Oct. 16, 1971, 41 SCRA
702.
131. Plans vs. Commission on Elections, L-35925, Jan. 25, 1973.
132. 256 US 368 (1921).
133. Ibid., 374-375.
134. L-33964, Dec. 11,1971, 42 SCRA 448.
135. Ibid., 504-505.
136. Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected
Essays on Constitutional Law 355, 387 (1938).
137. Ibid., 395.
138. Weston, Political Questions, I Selected Essays on Constitutional Law
418,422 (1938).
139. Cf. Bickel, The Least Dangerous Branch (1962).
140. Cf. Freund, On Understanding the Supreme Court (1950). Also his The
Supreme Court of the United States (1962).
141. Laurel, S., VII Proceedings of the Philippine Constitutional Convention
(1934-1935), Appendix L, 800.
142. 65 Phil. 56 (1937).
143. Ibid., 96.
144. 63 Phil. 139 (1936).
145. L-35925, January 22, 1973.
146. Rostow, The Democratic Character of Judicial Review in Selected Essays
on Constitutional Law 1938-1962, 1, 2 (1963).
147. Ibid.
148. Ibid., 3.
149. Ibid., 3-4. The decision of Justice Frankfurter referred to is that of Rochin
vs. People of California, 342 US 165 (1952).
150. Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of
Justice Frankfurter found in his opinion in Stein vs. New York, 346 US 156
(1953).
151. Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
152. Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449,
450 (1938).
153. I Cranch 137 (1803).
154. Curtis, Lions Under the Throne, 12 (1947).
155. Addresses and Papers of Charles Evans Hughes, 139-140 (1908).
156. Jackson, Robert H., The Struggle for Judicial Supremacy, 3 (1949).
157. Haines, Charles Grove, The Role of the Supreme Court in American
Government and Politics, 1789-1835, 3 (1960).
158. 369 US 186.
159. 395 US 486.
160. 328 US 549 (1946).
161. Ibid., 556.
162. Cf. Wesberry vs. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. 526 (1964);
Wright vs. Rockefeller, 376 US 52,11 L ed 2d 512, 84 S Ct 603 (1964);
Reynolds vs. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct. 1362 (1964); WMCA
vs. Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S Ct. 1418 (1964); Maryland
Committee vs. Tauses, 377 US 656,12 L ed 2d 595, 84 S Ct. 1442 (1964);
Davis vs. Mann, 377 US 678,12 L ed 2d 609, 84 S Ct.1453 (1964); Roman vs.
Sincock, 377 US 695, 12 L ed 2d 620, 84 S Ct. 1462 (1964); Lucas vs.
Colorado General Assembly, 377 US 713, 12 L ed 2d 632, 84 S Ct.1472
(1964); Fortson vs. Dorsey, 379 US 433,13 L ed 2d 401, 85 S Ct. 498 (1965);
Burns vs. Richardson, 384 US 73, 16 L ed 2d 376, 86 S Ct. 1286 (1966);
Sailors vs. Kent Board of Education, 387 US 105,18 L ed 2d 650, 87 S Ct.
1549 (1967); Dusch vs. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554
(1967).
163. 77 Phil. 192 (1946).
164. Ibid., 56.
165. New York Times Company vs. United States, 29 L ed. 822 (1971).
166. Wechier, Toward Neutral Principles of Constitutional Law, 72 Harv. Law
Review 77 (1959). It is the first essay in his Principles, Politics and
Fundamental Law.
167. The principal articles are: Pollak, Constitutional Adjudication: Relative or
Absolute Neutrality, 11 J. Pub. L. 48 (1962); Rostow, American Legal
Realism and the Sense of Profession, 34 Rocky Mt. L. Rev. 123, 136-46
(1962); Henkin, Some Reflections on Current Constitutional Controversy,
109 U. Pa. L. Rev. 637 (1961); Henson, A Criticism of Criticism: In re
Meaning, 29 Fordham L. Rev. 553 (1961); Miller, A Note on the Criticism of
Supreme Court Decisions, 10 J. Pub. L. 139 (1961); Wright, the Supreme
Court Cannot be Neutral,40 Texas L. Rev. 599 (1961); Arnold, Professor
Hart's Theology, 73 Harv. L. Rev. 1298 (1960); Black, The Lawfulness of the
Segregation Decisions, 69 Yale L. J. 421 (1960); Griswold, of Time and
Attitudes; Professor Hart and Judge Arnold, 74 Harv. L. Rev. 81(1960);
Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court
Rev. 75; Miller and Howell, The Myth of Neutrality in Constitutional
Adjudication, 27 U. Chi. L. Rev. 661(1960); Mueller & Schwartz, The
Principle of Neutral Principles. 7 U.C.L.A. L. Rev. 571 (1960); Hart, Forward,
the Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Pollak, Racial
Discrimination and Judicial Integrity; a Reply to Professor Wechsler, 108 U.
Pa. L. Rev. 1 (1959).
168. Cahn, Supreme Court and Supreme Law, 40 (1954).
169. Cf. Tañada vs. Cuenco, 103 Phil, 1051, 1089 (1957).
170. Collier vs. Frierson, 124 Ala. 100 (1854); Green vs. Weller, 32 Miss. 650
(1856); Penn vs. Tollison, 26 Ark 545 (1871); Koehler vs. Hill, 60 Iowa
543,14 NW 738 (1883); McMillan vs. Blattner, 67 Iowa 287, 25 NW 245
(1885); State vs. Davis, 20 Neb. 220, 19 Pac 894 (1888); State vs. Tooker,
15 Mont. 8, 37 Pac. 840 (1894); Russie vs. Brazzell, 128 Mo. 93, 30 SW 526
(1895); State vs. Powell, 77 Miss. 543, 27 So. 927 (1900); State vs.
Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind. 104, 59
NE 359 (1901); Utter vs. Moseley, 16 Idaho 274,100 P. 1058 (1909); Willis
vs. Kalbach, 109 Va. 475, 64 SE 342 (1909); People ex rel. Swift vs. Luce,
74 Misc. Rep. 551, 133 US 9 (1912); McCreary vs. Speer, 156 Ky.783,162
SW 99 (1914) State vs. Donald, 160 Wis. 21, 151, NW 331 (1915); State vs.
Marcus, 160 Wis. 354, 152 NW 419 (1915); State vs. Campbell, 94 Ohio St.
403, 115 NE 29 (1916); In re Opinion of Justices, 226 Mars. 607, 115 NE
921 (1917); Scott vs. Vouchan, 202 Mich. 692, 168 NW 709 (1918); Hooper
vs. State, 89 So. 593, 206 Ala. 371(1921); Switzer vs. State, 103 Ohio St.
306, 133 NE 552 (1921); Johnson vs. Craft, 87 So. 375, 205 Ala. 386 (1921);
In re Opinion of the Justices, 237 Mars. 589,1300 NE 202 (1921); Power vs.
Robertson, 130 Miss. 188, 93 So. 769 (1922); Hamilton vs. Deland, 191 NW
829, 221 Mich. 541 (1923); In re Initiative Petition, 89 Okl. 124, 214, P. 186
(1923); Armstrong vs. King, 281 Pa. 207, 126 A. 263 (1924); McAdams vs.
Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh vs. Floyd, 130 SC 434,
126 SE 336 (1925); State vs. Zimmerman, 187 Wis. 180, 180, 204 NW 803
(1925); Brown vs. City of New York, 125 Misc. Rep. 1, 210 NYS 786 (1926);
State ex rel. Balms vs. City of New Orleans, 163 La. 777, 112 So. 718
(1927); Duncan vs. Record Pub. Co., 145 SC 196, 143 SE 31(1928); Lane vs.
Lukens, 48 Idaho 517, 283 P. 532 (1929); School Dist. of City of Pontiac vs.
City of Pontiac, 262 Mich. 338, 247 NW 474 (1933); Collier vs. Gray, 116
Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55 R.I. 56, 178 A.
433 (1935); State ex rel Landis vs. Thompson, 120 Fla. 860,163 So. 270
(1935); Tausig vs. Lawrence, 328 Pa. 408, 197 A. 235 (1938); Downs vs.
City of Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham vs. Jones,
198 La. 50713 So. 2d 761 (1941); Pearson vs. Taylor, 159 Fla. 775, 32 So.
2d 826 (1947); Palmer vs. Dunn 216 SC 558, 59 SE 158 (1950).
171. Cf. Wells vs. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); In re Senate File
No. 31, 25 Neb. 864, 41 NW 981(1889); State vs. Grey, 21 Nev. 378, 32 Pac.
190 (1893); Nesbit vs. People, 19 Colo. 441, 36 Pac. 221 (1894); Hays vs.
Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett vs. Ferguson, 10 SD 44, 71 NW
756 (1897); Russell vs. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert vs.
Chicago, R.I. Ry. Co. 171 Mo. 84, 70 SW (1902); People vs. Sours, 31 Colo.
369, 102 74 P. 167 (1903); People vs. Loomis, 135 Mich. 556, 98 NW 262
(1904); West vs. State, 50 Fla. 154, 39 So. 412 (1905); State vs. Winnett, 78
Neb. 379,110 NW 113 (1907); Farrell vs. Port of Columbia, 50 Or. 169, 93 P.
254 (1908); In re McConaughy. 106 Minn. 392, 119 NW 408 (1909); Fletcher
vs. Gifford, 20 Idaho 18,115 P. 824 (1911); Hammond vs. Clark, 136 Ga, 313,
71 SE 479 (1911); Crawford Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee
vs. Phelps, 76 Wash. 314, 136 P. 367 (1913); State vs. Fairley, 76 Wash. 332,
136 P. 374 (1913); Tabor vs. City of Walla Walla, 77 Wash. 579, 137 P. 1040
(1914); State vs. Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey vs.
Persinger, 43 Ok1. 41, 141 P. 13 (1914); Cress vs. Estes, 43 Okl. 213 P. 411
(1914); Cooney vs. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth vs. Taylor,
117Ark. 465, 175 SW 40 (1915); Jones vs. McDade, 200 Ala. 230, 75 So. 988
(1917); State vs. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex parte Ming, 42
Nev. 472, 181 P. 319 (1919); Lee vs. Price, 54 Utah, 474,181 P. 948 (1919);
Erwin vs. Nolan, 280 Mo. 401, 217 SW 752 (1922); Boyd vs. Olcott, 102 Or.
327, 202 P. 431 (1921); Thompson vs. Livingston, 116 S.C. 412,107 SE
581(1921); Thrailkill vs. Smith, 106 Ohio St. 1, 138 NE 532 (1922); Brawner
vs. Curran, 141 Ind. 586, 119 A. 250 (1922); Fahey vs. Hackmann, 291 Mo.
351 SW 752 (1922); Goolsby vs. Stephens, 155 Ga. 529, 117 SE 439 (1923);
Manos vs. State, 98 Tax. Cr. 87, 263 SW 310 (1924), State vs. Zimmermann,
187 Wis. 180, 208 NW 803 (1925); Taylor vs. King, 284 Pa. 235, 130 A. 407
(1925); Board of Liquidation of State Debt of Louisiana vs. Whitney-Central
Trust and Savings Bank, 168 La. 560,122 So. 850 (1929); State vs. Cline, 118
Neb. 150, 224 NW 6 (1929); California Teachers' Ass'n vs. Coolins, I Cal. 2d
202, 34 P. 2d 134 (1934); Collier vs. Gray, 116 Fla. 845, 157 So. 40 (1934);
State ex rel. vs. State Bldg. Commission vs. Smith, 335 Mo. 840, 74 SW 2d 27
(1934); Mayer vs. Adams, 182 Ga. 524,186 SE 420 (1936); Doody vs. State
ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937); Swanson vs. State,
132 Neb. 82, 271 NW 264 (1937); Stonns vs. Heck, 238 Ala. 196, 190 So. 78
(1939); Graham vs. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative
Petition No. 224,197 Okl. 432, 172 P. 2d 324 (1946); City of Jackson vs. Nims,
316 Mich. 694, 26 NW 2d 569 (1947); Keena vs. Price, 68 Idaho 423,195 P.
2d 662 (1948).
172. Commonwealth Act No. 492 (1939).
173. Ibid., Section 3.
174. Commonwealth Act No. 517 (1940).
175. Article VI of the 1935 Constitution.
176. Article VII of the 1935 Constitution.
177. It is to be noted that under Commonwealth Act No. 607 (1940),
subsequently amended by Commonwealth Act No. 657 (1940), there was a
statutory creation of an independent Commission on Elections.
178. Section 3, Commonwealth Act No. 517.
179. Republic Act No. 73 (1946).
180. Section 3 of Republic Act 73 reads as follows: "The provisions of
Commonwealth Act Numbered Three Hundred and fifty-seven, otherwise
known as the Election Code, and Commonwealth Act Numbered Six Hundred
and fifty-seven, entitled 'An Act to Reorganize the Commission on Elections,'
is so far as they are not inconsistent herewith, are hereby made applicable to
the election provided for in this Act."
181. Republic Act 4913 (1967).
182. Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act
Numbered One hundred eighty, as amended, insofar as they are inconsistent
herewith, are made applicable to the election provided for in this Act." It is to
be remembered that in the plebiscite held, the two proposals last. Cf. on this
point, Gonzales vs. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA
774.
183. The 1935 Constitution provides: "The Philippines is a republican state.
Sovereignty resides in the people and all government authority emanates
from them." Article II, Section 1.
184. Laski, Grammar of Politics, 4th ed., 34 (1937).
185. McIver, The Web of Government, 84 (1947).
186. Corwin, The Higher Law Background of American Constitutional Law, in 1
Selected Essays on Constitutional Law 3 (1938).
187. 92 Ky. 589,18 SW 522.
188. Ibid., 523.
189. 101 Va. 829, 44 SE 754.
190. Ibid., 755. A similar approach may be noted in Arie vs. State, 23 Okl. 166,
100 P. 23 (1909) and Hammond vs. Clark, 136 Ga. 313, 71 SE 479 (1911).
191. Araneta vs. Dinglasan, 84 Phil. 368 (1949).
192. Cardozo, The Nature of the Judicial Process, 141 (1921).
193. Section 1, which is the lone Section of Article XV; italics supplied.
194. Article XVII, Section 16, proposed Constitution of Nov. 30, 1972; italics
supplied.
195. All quotations from respondents' memo of arguments dated March 2,
1973, pp. 2-5; italics supplied.
196. Respondents' memo dated March 2, 1973, p. 8; italics supplied.
197. Gonzales vs. Comelec, 21 SCRA 774 (Nov. 9, 1967).
198. Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
199. Resolution on motion for reconsideration in Tolentino vs. Comelec, L-
34150, dated Nov. 4, 1971, at page 3, per Barredo, J. with seven Justices
concurring; italics supplied.
200. Idem., at page 4, italics supplied.
201. Joint opinion of Justices Makalintal and Ruiz Castro, p. 3.
202. Article X, Sec. 1 of the Constitution entrusts "exclusive charge" of the
conduct of elections to the Comelec. See also the Election Code of 1971.
203. Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez
vs. Treasurer (L-3054); Guerrero vs. Commissioner of Customs; and Barredo
vs. Comelec (L-3056), jointly decided and reported in 84 Phil. 368.
204. Idem., at pp. 384-385; italics supplied.
205. Idem., at p. 437.
206. Idem., at pp. 435-437.
207. Idem., at p. 383. Justice Tuason further duly noted that "These
observations, though beyond the issue as formulated in this decision, may,
we trust, also serve to answer the vehement plea that for the good of the
Nation, the President should retain his extraordinary powers as long as
turmoil and other ills directly or indirectly traceable to the late war harass
the Philippines."
208. Petitioner Monteclaro's notes of oral argument dated February 23, 1973,
p. 2 and Annex A thereof.
209. State vs. Powell, 77 Miss. 543, 27 South 927.
210. Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.
211. Article XV, Sec. 1, Constitution.
212. Article V, Sec. 1, Constitution.
213. Article X, Sec. 2, Constitution.
214. Respondents' memo dated March 2, 1973, p. 5.
215. Respondents' Comment dated Feb. 3, 1973, p. 67.
216. Idem., at p. 46; note in parentheses supplied.
217. 1 Cranch 137 (1803).
218. 63 Phil, 134 (1936).
219. 4 Wheaton 316 (1819).
220. Dean Pollak's "The Constitution and the Supreme Court," Vol. I, p. 221.
221. Justice Felix Frankfurter, of Law and Men (1956), p. 5.
222. Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per
Barredo, J. at p. 8.
223. Con-Con Res. No. I proposing the urgent lowering of the voting age to
enfranchise the 18-year olds retained the "permissive" language of Section
1, Art. V. Thus, the proposed amendment read: "Section 1. Suffrage may be
exercised by (male) citizens of the Philippines not otherwise disqualified by
law, who are (twenty-one) EIGHTEEN years of age or over and are able to
read and write . . ."
224. Resolution of Nov. 4, 1971, per Barredo, J., at p. 15.
225. Decision of Oct. 16, 1971, at p. 21.
226. 21 SCRA 774 (Nov. 9, 1967).
227. Decision of Oct. 16, 1971, at p. 24.
228. Reyes, J B L, (now retired), Zaldivar, Castro and Makasiar, JJ.
229. Idem at pp. 1-2.
230. Idem at p. 3.
231. Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J., pp. 3-4.
232. Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
233. All quotations are from the Chief Justice's concurring opinion in Tolentino,
pp. 4-7.
234. Separate op. of Justice Teehankee concurring in Res. of Nov. 4, 1971 in
Tolentino, pp. 8, 9-10.
235. This Court thus declared in Tolentino the Con-Con voting age reduction
resolution as null and void and prohibited its submittal at the 1971 elections
for lack of proper submission since it did not "provide the voter . . . ample
basis for an intelligent appraisal of the amendment." Decision of October 16,
1971, per Barredo, J.
236. In re Opinion of Justices, 115 N.E. Rep. 922-923.
237. Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
238. "Barrios are units of municipalities or municipal districts in which they are
situated . . . ." Rep. Act 3590, Sec. 2.
239. Rep. Act 3590, Sec. 6, par. 1.
240. Idem., par. 2.
241. Idem., par. 3 and 4, italics supplied.
242. One barrio lieutenant and six barrio councilmen; "Voting shall be by secret
ballot. . . . ." Idem., Sec. 8.
243. Idem., Sec. 10, italics supplied. The same section further disqualifies
persons convicted by final judgment to suffer one year or more of
imprisonment "within two years after service" or who have violated their
allegiance to the Republic and insane or feeble-minded persons.
244. Supra, p. 2.
245. Rizal Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners'
manifestation and supplemental rejoinder dated March 21, 1973 in L-36165.
246. Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated
March 29, 1973.
247. Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that
"fourteen million nine hundred seventy six thousand five hundred sixty-one
(14,976,561) members of all the Barangays voted for the adoption of the
proposed Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; but a majority of
those who approved the new Constitution conditioned their votes on the
demand that the interim National Assembly provided in its Transitory
Provisions should not be convened."
248. Respondents' memo dated March 2, 1973, supra, p. 2.
249. As restated by Barredo, J., in his separate opinion in the plebiscite cases,
who, however, did not look on the same with favor, since the "constitutional
point (that the Comelec has exclusive charge of the conduct of elections and
plebiscites) seems to have been overlooked in the Assemblies."
250. Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-
delegate Sedfrey A. Ordoñez et al. in the plebiscite case L-35942, par. 12 of
petition and admitted in par. 4 of answer of therein respondents dated Dec.
15, 1972.

05.javellana v. Executive Secretary20211014-11-1d6edxm

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

05.javellana v. Executive Secretary20211014-11-1d6edxm

Uploaded by

Copyright:

Available Formats

EN BANC

[G.R. No. L-36142. March 31, 1973.]

JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE

[G.R. No. L-36164. March 31, 1973.]

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES,

[G.R. No. L-36165. March 31, 1973.]

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,

[G.R. No. L-36236. March 31, 1973.]

EDDIE B. MONTECLARO, [personally and in his capacity as

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR.,

Ramon A. Gonzales for petitioner Josue Javellana.

"On March 16, 1967, Congress of the Philippines passed

"Soon after, or on December 7, 1972, Charito Planas ﬁled, with

"Substantially identical actions were ﬁled, on December 8, 1972,

"Meanwhile, or on December 17, 1972, the President had issued

"In view of these events relative to the postponement of the

"In the afternoon of January 12, 1973, the petitioners in Case

'6. That the President subsequently announced the issuance

'7. That thereafter it was later announced that "the

"[1] The New Society;

"[1] Do you approve of the New Society?

'9. That the voting by the so-called Citizens Assemblies was

"[1] Do you like the New Society?

"[1] Do you approve of the citizens assemblies as the

'12. That according to reports, the returns with respect to the

'13. That attached to page 1 of Annex "A" is another page, which

'Attention is respectfully invited to the comments on "Question

This, we are afraid, and therefore allege, is pregnant with

'14. That, in the meantime, speaking on television and over

'15. That petitioners have reason to fear, and therefore state,

"Do you approve of the New Constitution?" — in relation to the

"Do you still want a plebiscite to be called to ratify the new

would be an attempt to by-pass and short-circuit this Honorable

'16. That petitioners have reason to fear, and therefore

'17. That the fait accompli would consist in the supposed

'19. That, in such a situation, the Philippines will be facing a

'20. That the crisis mentioned above can only be avoided if

'21. That with the withdrawal by the President of the limited

"At about the same time, a similar prayer was made in a

'. . . that a restraining order be issued enjoining and

'BY THE PRESIDENT OF THE PHILIPPINES

"Immediately after the hearing held on January 17, 1973, or since

"1. There is unanimity on the justiciable nature of the issue

"2. On the validity of the decree itself, Justices Makalintal,

"3. On the authority of the 1971 Constitutional Convention to

"4. Justice Fernando, likewise, expressed the view that the

"5. On the question whether the proclamation of Martial Law

"6. On Presidential Proclamation No. 1102, the following

"a. Justices Makalintal, Castro, Fernando, Teehankee,

"7. On the question whether or not these cases should be

Accordingly, the Court — acting in conformity with the position taken

Pursuant to this section, the concurrence of two-thirds of all the

". . . There is nothing either in the Constitution or in the Judiciary

The distinction is not without reasonable foundation. The two-thirds

"Administrative acts and commands of the (Governor-General)

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

In fact, while executive orders embody administrative acts or

The reasons adduced in support thereof are, however, substantially the

xxx xxx xxx

"'. . . What is generally meant, when it is said that a question is

and, in an attempt to describe the nature of a political question in terms, it

"It is worthy of remark, however, when we are referring to the