Javellana v. Exec Secretary (LawPhil)

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L36142 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. L36164 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
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TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL
SERVICE, respondents. By continuing to browse our site, you are
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G.R. No. L36165 March 31, 1973. Find out more here.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA,
JR. and EVA ESTRADAKALAW, petitioners,
vs. OK
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as
Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed
Forces of the Philippines; TANCIO E. CASTAÑEDA, in his capacity as Secretary General Services; Senator
GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, his capacity, as
President Pro Tempore of the of the Senate, respondents.
G.R. No. L36236 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.
G.R. No. L36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M.
GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE, THE
HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for
other respondents.
R E S O L U T I O N
CONCEPCION, C.J.:
The aboveentitled five (5) cases are a sequel of cases G.R. Nos. L35925,
L35929, L35940, L35941, L35942, L35948, L35953, L35961, L35965 and
L35979, 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. L35925,
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. L35940), by Eddie B. Monteclaro against the Commission on Elections
and the Treasurer of the Philippines (Case G.R. No. L35941), and by Sedfrey Ordoñez, et al.
against the National Treasurer and the Commission on Elections (Case G.R. No. L35942); 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. L35948) and by Jose W.
Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L35953); 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. L35961),
and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the
National Treasurer and the Auditor General (Case G.R. No. L35965); 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. L35979).
In all these cases, except the last (G.R. No. L35979), 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. L35979 — was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of
the hearing, on that date, the parties in all of the aforementioned cases were given a short period of
time within which "to submit their notes on the points they desire to stress." Said notes were filed on
different dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until
January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to
be held on January 15, 1978, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed
Constitution."
In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced officially.
Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session
on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the
President does not have the legislative authority to call a plebiscite and appropriate funds therefor,
which Congress unquestionably could do, particularly in view of the formal postponement of the
plebiscite by the President — reportedly after consultation with, among others, the leaders of
Congress and the Commission on Elections — the Court deemed it more imperative to defer its final
action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L35948 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 socalled Citizens Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose
—
[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative
new dates given following the postponement of the plebiscite from the original date of
January 15 are February 19 and March 5);
[4] The opening of the regular session slated on January 22 in accordance with the
existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of the questions to be asked to the
Citizens Assemblies: —
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?
[3] Do you think that Congress should meet again in regular session?
[4] How soon would you like the plebiscite on the new Constitution to be held? [Bulletin
Today, January 5, 1973].
"9. That the voting by the socalled Citizens Assemblies was announced to take place during the
period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question would be added to the four (4)
question previously announced, and that the forms of the question would be as follows: —
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of the government? [Bulletin
Today, January 10, 1973; emphasis an additional question.]
"11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the
socalled Citizens Assemblies: —
[1] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the new Constitution?
[4] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
[5] If the elections would not be held, when do you want the next elections to be called?
[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis
supplied]
"12. That according to reports, the returns with respect to the six (6) additional questions quoted
above will be on a form similar or identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A1", and
which reads: —
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at
all, it should not be done so until after at least seven (7) years from the approval of the
New Constitution by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the plebiscite on the
New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution
should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with politics, of so many
debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough for
stability to be established in the country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his
powers with more authority. We want him to be strong and firm so that he can
accomplish all his reform programs and establish normalcy in the country. If all other
measures fail, we want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3," which reads: —
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the plebiscite on the New
Constitution.
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 bypass and shortcircuit this Honorable Court before which the question of
the validity of the plebiscite on the proposed Constitution is now pending;
"16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two
questions just referred to will be reported then this Honorable Court and the entire nation will be
confronted with a fait accompli which has been attained in a highly unconstitutional and undemocratic
manner;
"17. That the fait accompli would consist in the supposed expression of the people approving the
proposed Constitution;
"18. That, if such event would happen, then the case before this Honorable Court could, to all intents
and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of
such supposed expression of the will of the people through the Citizens Assemblies, it would be
announced that the proposed Constitution, with all its defects, both congenital and otherwise, has
been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood of
confusion if not chaos, because then, the people and their officials will not know which Constitution is
in force.
"20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately
decide and announce its decision on the present petition;
"21. That with the withdrawal by the President of the limited freedom of discussion on the proposed
Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the
opposition of respondents to petitioners' prayer at the plebiscite be prohibited has now collapsed and
that a free plebiscite can no longer be held."
At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L
35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L35942, "Sedfrey A.
Ordoñez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not
later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L35948 riled a "supplemental motion for issuance of
restraining order and inclusion of additional respondents," praying —
"... that a restraining order be issued enjoining and restraining respondent Commission
on Elections, as well as the Department of Local Governments and its head, Secretary
Jose Roño; the Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo
de Vega; their deputies, subordinates and substitutes, and all other officials and persons
who may be assigned such task, from collecting, certifying, and announcing and
reporting to the President or other officials concerned, the socalled 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 socalled 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 socalled Citizens' Assemblies, is properly in issue in this case, and those who
enforce, implement, or carry out the said Presidential Decree No. 86. and the instructions incidental
thereto clearly fall within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of preliminary injunction
restraining not only the respondents named in the petition but also their "agents" from
implementing not only Presidential Decree No. 73, but also "any other similar decree,
order, instruction, or proclamation in relation to the holding of a plebiscite on January 15,
1973 for the purpose of submitting to the Filipino people for their ratification or rejection
the 1972 Draft or proposed Constitution approved by the Constitutional Convention on
November 30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and equitable. [p. 39,
Petition].
"Therefore, viewing the case from all angles, the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore, that the Commission on
Elections has under our laws the power, among others, of: —
(a) Direct and immediate supervision and control over national, provincial, city, municipal
and municipal district officials required by law to perform duties relative to the conduct of
elections on matters pertaining to the enforcement of the provisions of this Code ..."
[Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the Commission on Elections, together
with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent
Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President
the results of the alleged voting of the socalled Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom an democracy,
and the petitioners herein because:
[a] After the result of the supposed voting on the questions mentioned in paragraph 1
hereof shall have been announced, a conflict will arise between those who maintain that
the 1935 Constitution is still in force, on the one hand, and those who will maintain that it
has been superseded by the proposed Constitution, on the other, thereby creating
confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious attack because the
advocates of the theory that the proposed Constitution has been ratified by reason of
the announcement of the results of the proceedings of the socalled 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. L35948 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. L35948 — 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 seventyone 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. 86A,
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 seventysix thousand five hundred sixtyone (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred fortythree thousand eight hundred sixtynine (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 ninetyeight
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 ninetyfive (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 seventyone (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
seventythree.
(Sgd.) FERDINAND E. MARCOS
"President of the Philippines
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After admitting some of the allegations
made in the petition in L35948 and denying the other allegations thereof, respondents therein
alleged in their answer thereto, by way 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 L35948, Justices Makalintal,
Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the
Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had
authority to continue in the performance of its functions despite the proclamation of Martial Law. In
effect, Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice
Fernando is of the opinion that there is a repugnancy between the election contemplated under Art.
XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the
opinion that issue involves questions of fact which cannot be predetermined, and that Martial Law per
se does not necessarily preclude the factual possibility of adequate freedom, for the purposes
contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself
are of the opinion that the question of validity of said Proclamation has not been properly
raised before the Court, which, accordingly, should not pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102
has been submitted to and should be determined by the Court, and that the "purported
ratification of the Proposed Constitution ... based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the requirements of Article XV of
the 1935 Constitution," but that such unfortunate drawback notwithstanding,
"considering all other related relevant circumstances, ... the new Constitution is legally
recognizable and should be recognized as legitimately in force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it
has no force and effect whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the
Proposed Constitution has been ratified by the people or not, "in the absence of any
judicially discoverable and manageable standards," since the issue "poses a question of
fact.
7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards
Case No. L35948 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. L35948 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. L35948, only and another member3 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. L36142 against the Executive
Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the propose Constitution not found in the
present Constitution" — referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and
voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set
forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate
implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting
without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the
President, as CommanderinChief of the Armed Forces of the Philippines, is without authority to create the
Citizens Assemblies"; that the same "are without power to approve the proposed Constitution ..."; "that the
President is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and
"that the election held to ratify the proposed Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel
Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget
Commissioner, the Chairman of the Presidential Commission on Reorganization, the Treasurer of the Philippines,
the Commission on Elections and the Commissioner of Civil Service4 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, the 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 EstradaKalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate,"
and others as "duly elected members" thereof, filed Case G.R. No. L36165, against the Executive Secretary, the
Secretary National Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of the Senate. In their petition — as amended on January
26, 1973 — petitioners Gerardo Roxas, et al. allege, inter alia, that the term of office of three of the
aforementioned petitioners8 would expire on December 31, 1975, and that of the others9 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 regular customary hour of its opening session";
that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were
unlawfully prevented from using the Senate Session Hall, the same having been closed by the authorities in
physical possession and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the
premises of the entire Legislative Building were ordered cleared by the same authorities, and no one was allowed
to enter and have access to said premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence,
respondent President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the
law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that the
petitioners ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but
respondent Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and
representatives, are preventing petitioners from performing their duties as duly elected Senators of the
Philippines"; that "the Senate premise in the Congress of the Philippines Building ... are occupied by and are
under the physical control of the elements military organizations under the direction of said respondents"; that, as
per "official reports, the Department of General Services ... is now the civilian agency in custody of the premises
of the Legislative Building"; that respondents "have unlawfully excluded and prevented, and continue to so
exclude and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged approval of
the 1972 (1973) Constitution of the Philippines by action of the socalled Citizens' Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and issued by the President
of the Philippines"; that "the alleged creation of the Citizens' Assemblies as instrumentalities for the ratification of
the Constitution of the Republic of the Philippines" is inherently illegal and palpably unconstitutional; that
respondents Senate President and Senate President Pro Tempore "have unlawfully refrained and continue to
refrain from and/or unlawfully neglected and continue to neglect the performance of their duties and functions as
such officers under the law and the Rules of the Senate" quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages, the
Supreme Court dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions
therein had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked the 1935 Constitution," for the reasons
specified in the petition as amended; that, by acting as they did, the respondents and their "agents,
representatives and subordinates ...have excluded the petitioners from an office to which" they "are lawfully
entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its
8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ... continue
such inaction up to this time and ... a writ of mandamus is warranted in order to compel them to comply with the
duties and functions specifically enjoined by law"; and that "against the above mentioned unlawful acts of the
respondents, the petitioners have no appeal nor other speedy and adequate remedy in the ordinary course of law
except by invoking the equitable remedies of mandamus and prohibition with the provisional remedy of
preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of
preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... Secretary of General Service, as
well as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines
and to deliver physical possession of the same to the President of the Senate or his authorized representative";
and that hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree,
proclamation having the same import and objective, issuing writs of prohibition and mandamus, as prayed for
against abovementioned respondents, and making the writ injunction permanent; and that a writ of mandamus
be issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and
functions as President and President Pro Tempore, respectively, of the Senate of Philippines, as provided by law
and the Rules of the Senate."
Required to comment on the abovementioned petitions and/or amended petitions, respondents filed, with the
leave Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging
that the same ought to have been dismissed outright; controverting petitioners' allegations concerning the alleged
lack impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution, its
alleged lack of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the
President to create and establish Citizens' Assemblies "for the purpose submitting to them the matter of
ratification of the new Constitution," the alleged "improper or inadequate submiss of the proposed constitution,"
the "procedure for ratification adopted ... through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is
without jurisdiction to act on these petitions"; 2) the questions raised therein are "political in character and
therefore nonjusticiable"; 3) "there substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he
Constitution was properly submitted the people in a free, orderly and honest election; 5) "Proclamation No. 1102,
certifying the results of the election, is conclusive upon the courts"; and 6) "(t)he amending process outlined in
Article XV of the 1935 Constitution is not exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L36165, 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 L36236 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. L36142, L36164, and L36165, as motions to dismiss the petitions therein, and to set said
cases for hearing on the same date and time as L36236. On that date, the parties in G.R. No. L36283 10 agreed
that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L
36142, L36164, L36165 and L36236. 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. L36164 and L36165 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. L36164 a L36165. 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 L36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor
General submitted in all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write his own opinion and
serve a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and
votes were cast thereon. Such individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his
aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the
votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L36165, and,
also, by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice
Barredo had expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been
legitimately supplanted by the Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr. Justice
Antonio did not feel "that this Court competent to act" in said cases "in the absence of any judicially discoverable
and manageable standards" and because "the access to relevant information is insufficient to assure the correct
determination of the issue," apart from the circumstance that "the new constitution has been promulgated and
great interests have already arisen under it" and that the political organ of the Government has recognized its
provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent evidence ... about the
circumstances attending the holding" of the "referendum or plebiscite" thru the Citizens' Assemblies, he "cannot
say that it was not lawfully held" and that, accordingly, he assumed "that what the proclamation (No. 1102) says
on its face is true and until overcome by satisfactory evidence" he could not "subscribe to the claim that such
plebiscite was not held accordingly"; and that he accepted "as a fait accompli that the Constitution adopted (by the
1971 Constitutional Convention) on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems
remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10)
votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in
G.R. No.
L36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the
hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite
cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in connection
with the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion if the
petitioners herein succeeded in convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight
(8) votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme
Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two
thirds of all the members of the Court.
Pursuant to this section, the concurrence of twothirds of all the Members of the Supreme Court is required only
to declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949,
then Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight Justices
to nullify a rule or regulation or an executive order issued by the President. It is very significant that in
the previous drafts of section 10, Article VIII of the Constitution, "executive order" and "regulation"
were included among those that required for their nullification the vote of twothirds 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 twothirds (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 proclamation, like said Proclamation No. 1102, inasmuch as the authority to
issue the same is governed by section 63 of the Revised Administrative Code, which provides:
Administrative acts and commands of the (GovernorGeneral) President of the Philippines touching
the organization or mode of operation of the Government or rearranging or readjusting any of the
districts, divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands
governing the general performance of duties by public employees or disposing of issues of general
concern shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to
(have) effect and any information concerning matters of public moment determined by law,
resolution, or executive orders, may be promulgated in an executive proclamation, with all the force
of an executive order. 14
In fact, while executive order embody administrative acts or commands of the President, executive proclamations
are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose
Roy maintain in G.R. No.
L36165. 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 by applying the provisions of the Constitution in force at the time of the alleged
ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non
justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support
thereof, he alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic"
from which — he claims — "this Court now derives its authority"; that "nearly 15 million of our body politic from the
age of 15 years have mandated this Constitution to be the New Constitution and the prospect of unsettling acts
done in reliance on it caution against interposition of the power of judicial review"; that "in the case of the New
Constitution, the government has been recognized in accordance with the New Constitution"; that "the country's
foreign relations are now being conducted in accordance with the new charter"; that "foreign governments have
taken note of it"; that the "plebiscite cases" are "not precedents for holding questions regarding proposal and
ratification justiciable"; and that "to abstain from judgment on the ultimate issue of constitutionality is not to
abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What
petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion reached by the
Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases preceding
the same, as the predicates from which said conclusion was drawn; that the plebiscite or "election" required in
said Article XV has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to
dispense with said election or plebiscite; that the proceedings before the Citizens' Assemblies did not constitute
and may not be considered as such plebiscite; that the facts of record abundantly show that the aforementioned
Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that,
in any event, the proceedings in said Assemblies are null and void as an alleged ratification of the new
Constitution proposed by the 1971 Constitutional Convention, not only because of the circumstances under which
said Assemblies had been created and held, but, also, because persons disqualified to vote under Article V of the
Constitution were allowed to participate therein, because the provisions of our Election Code were not observed in
said Assemblies, because the same were not held under the supervision of the Commission on Elections, in
violation of section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General
Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed
Constitution, impaired the people's freedom in voting thereon, particularly a viva voce, as it was done in many
instances, as well as their ability to have a reasonable knowledge of the contents of the document on which they
were allegedly called upon to express their views.
Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional
Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political
question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position
taken by this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said
issue is inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the
United States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in
the 1935 Constitution being patterned after that of the United States. Besides, no plausible reason has, to my
mind, been advanced to warrant a departure from said position, consistently with the form of government
established under said Constitution..
Thus, in the aforementioned plebiscite cases, 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 Barcelona v. Baker 20 and Montenegro v. 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 v. Commission on Elections, 22 the politicalquestion theory adopted
in Mabanag v. 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 v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the same as those given in support of the
politicalquestion 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 nonjusticiability of socalled political questions is the principle
of separation of powers — characteristic of the Presidential system of government — the functions of which are
classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of
laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such
laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department;
and 3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice. Within its
own sphere — but only within such sphere — each department is supreme and independent of the others, and
each is devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other
departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures
taken or decisions made by the other departments — provided that such acts, measures or decisions are within
the area allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system goes hand in hand with the system of checks
and balances, under which each department is vested by the Fundamental Law with some powers to forestall,
restrain or arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the appointing
power of the Executive, his pardoning power, his veto power, his authority to call the Legislature or Congress to
special sessions and even to prescribe or limit the object or objects of legislation that may be taken up in such
sessions, etc. Conversely, Congress or an agency or arm thereof — such as the commission on Appointments —
may approve or disapprove some appointments made by the President. It, also, has the power of appropriation,
to "define, prescribe, and apportion the jurisdiction of the various courts," as well as that of impeachment. Upon
the other hand, under the judicial power vested by the Constitution, the "Supreme Court and ... such inferior
courts as may be established by law," may settle or decide with finality, not only justiciable controversies between
private individuals or entities, but, also, disputes or conflicts between a private individual or entity, on the one
hand, and an officer or branch of the government, on the other, or between two (2) officers or branches of
service, when the latter officer or branch is charged with acting without jurisdiction or in excess thereof or in
violation of law. And so, when a power vested in said officer or branch of the government is absolute or
unqualified, the acts in the exercise of such power are said to be political in nature, and, consequently, non
justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon themselves a power
conferred by the Constitution upon another branch of the service to the exclusion of the others. Hence, in Tañada
v. Cuenco, 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 law or submit a proposed
constitutional amendment to the people. The courts have no judicial control over such matters, not
merely because they involve political questions, but because they are matters which the people have
by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated
him, free from judicial control, so long as he observes the laws act within the limits of the power
conferred. His discretionary acts cannot be controllable, not primarily because they are of a politics
nature, but because the Constitution and laws have placed the particular matter under his control.
But every officer under constitutional government must act accordingly to law and subject its
restrictions, and every departure therefrom or disregard thereof must subject him to that restraining
and controlling power of the people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through the executive or the Legislature.
One department is just as representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all official
action. The recognition of this principle, unknown except in Great Britain and America, is necessary,
to "the end that the government may be one of laws and not of men" — words which Webster said
were the greatest contained in any written constitutional document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the
laymen, We added that "... the term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the government of a State, as a body politic. "In
other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the government." It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not
the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non
political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise,
said qualifications, conditions or limitations — particularly those prescribed or imposed by the Constitution —
would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main
functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the
system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor
the discretion to decline passing upon said issue, but are under the ineluctable obligation — made particularly
more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend
the Constitution — to settle it. This explains why, in Miller v. Johnson, 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 v. Borden 31 in support of his stand that the issue under consideration is
nonjusticiable in nature. Neither the factual background of that case nor the action taken therein by the Federal
Supreme Court has any similarity with or bearing on the cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against
Borden and others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of England, alleged in their defense that they
had acted in obedience to the commands of a superior officer, because Luther and others were engaged in a
conspiracy to overthrow the government by force and the state had been placed by competent authority under
Martial Law. Such authority was the charter government of Rhode Island at the time of the Declaration of
Independence, for — unlike other states which adopted a new Constitution upon secession from England —
Rhode Island retained its form of government under a British Charter, making only such alterations, by acts of the
Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this
form of government when Rhode Island joined other American states in the Declaration of Independence and, by
subsequently ratifying the Constitution of the United States, became a member of the Union. In 1843, it adopted a
new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed
by them to the Legislature having failed to bring about the desired effect, meetings were held and associations
formed — by those who belonged to this segment of the population — which eventually resulted in a convention
called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The
convention was not authorized by any law of the existing government. The delegates to such convention framed a
new Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention
declared that said Constitution had been adopted and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the state, contested, however, the
validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under
the new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to
support him. Thereupon, the charter government passed an Act declaring the state under Martial Law and
adopted measures to repel the threatened attack and subdue the rebels. This was the state of affairs when the
defendants, who were in the military service of the charter government and were to arrest Luther, for engaging in
the support of the rebel government — which was never able to exercise any authority in the state — broke into
his house.
Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of
government. Eventually, a new constitution was drafted by a convention held under the authority of the charter
government, and thereafter was adopted and ratified by the people. "(T)he times and places at which the votes
were to be given, the persons who were to receive and return them, and the qualifications of the voters having all
been previously authorized and provided for by law passed by the charter government," the latter formally
surrendered all of its powers to the new government, established under its authority, in May 1843, which had
been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to
take possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June following, which dispersed upon approach
of the troops of the old government, no further effort was made to establish" his government. "... until the
Constitution of 1843" — adopted under the auspices of the charter government — "went into operation, the
charter government continued to assert its authority and exercise its powers and to enforce obedience throughout
the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority
of the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took
the case for review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to the authority of State decisions, that the trial
of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who
decided that case held their authority under that constitution and it is admitted on all hands that it was
adopted by the people of the State, and is the lawful and established government. It is the decision,
therefore, of a State court, whose judicial authority to decide upon the constitution and laws of Rhode
Island is not questioned by either party to this controversy, although the government under which it
acted was framed and adopted under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the courts of Rhode Island. The question
relates, altogether, to the constitution and laws of that State, and the well settled rule in this court is,
that the courts of the United States adopt and follow the decisions of the State courts in questions
which concern merely the constitution and laws of the State.
Upon what ground could the Circuit Court of the United States which tried this case have departed
from this rule, and disregarded and overruled the decisions of the courts of Rhode Island?
Undoubtedly the courts of the United States have certain powers under the Constitution and laws of
the United States which do not belong to the State courts. But the power of determining that a State
government has been lawfully established, which the courts of the State disown and repudiate, is not
one of them. Upon such a question the courts of the United States are bound to follow the decisions
of the State tribunals, and must therefore regard the charter government as the lawful and
established government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and
fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the
State tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter government.
Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to
that rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union
have a measure of internal sovereignty upon which the Federal Government may not encroach, whereas ours is
a unitary form of government, under which our local governments derive their authority from the national
government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained no
provision on the manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on
recognition of constitution, and there is a fundamental difference between these two (2) types of recognition, the
first being generally conceded to be a political question, whereas the nature of the latter depends upon a number
of factors, one of them being whether the new Constitution has been adopted in the manner prescribed in the
Constitution in force at the time of the purported ratification of the former, which is essentially a justiciable
question. There was, in Luther v. Borden, a conflict between two (2) rival governments, antagonistic to each other,
which is absent in the present cases. Here, the Government established under the 1935 Constitution is the very
same government whose Executive Department has urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on matters
other than those referring to its power to review decisions of a state court concerning the constitution and
government of that state, not the Federal Constitution or Government, are manifestly neither, controlling, nor
even persuasive in the present cases, having as the Federal Supreme Court admitted — no authority whatsoever
to pass upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the
Supreme Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have
no power to determine questions of a political character. It is interesting historically, but it has not the
slightest application to the case at bar. When carefully analyzed, it appears that it merely determines
that the federal courts will accept as final and controlling a decision of the highest court of a state
upon a question of the construction of the Constitution of the state. ... . 33
Baker v. Carr, 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 nonpolitical, inasmuch as:"...
(d)eciding whether a matter has in any measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the
Constitution ... ."
Similarly, in Powell v. McCormack, 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 nonpolitical 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 L36142 maintain the negative view, upon ground: 1) that the President "is without authority to
create the Citizens' Assemblies" through which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed Constitution"; 3) that the President "is
without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and 4) that "the
election held (in the Citizens' Assemblies) to ratify the proposed Constitution was not a free election, hence null
and void."
Apart from substantially reiterating these grounds support of said negative view, the petitioners in L36164
contend: 1) that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed
new Constitution or "to appropriate funds for 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 the people;" 3) that "(t)he period of
time between November 1972 when the 1972 draft was approved and January 1115, 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 a which they never
knew would be submitted to them ratification until they were asked the question — "do you approve of the New
Constitution?" during the said days of the voting"; and that "(t)here was altogether no freedom discussion and no
opportunity to concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the
Citizens' Assemblies for ratification."
Petitioner in L36236 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 abovementioned cases,
the petitioners in L36283 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 L36165 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 L36165 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 threefourths 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 L36164 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 twentyone 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 fee, orderly, and honest elections.
The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme
Court.
xxx xxx xxx 39
a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of
suffrage. They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law, who
are twentyone 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 exercised only by
male citizens of the Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty
to vote should be made obligatory." It appears that the first recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of Art. V of the
Constitution, the second sentence thereof imposing upon the National Assembly established by the original
Constitution — instead of the bicameral Congress subsequently created by amendment said Constitution — the
duty to "extend the right of suffrage women, if in a plebiscite to, be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which it was
rejected by the Convention. 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 — amendment having been proposed to reduce the
same to 18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the
exercise of the right of suffrage — the second recommendation limiting the right of suffrage to those who could
"read and write" was — in the language of Dr. Jose M. Aruego, one of the Delegates to said Convention —
"readily approved in the Convention without any dissenting vote," although there was some debate on whether
the Fundamental Law should specify the language or dialect that the voter could read and write, which was
decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant
to be and is a grant or conferment of a right to persons possessing the qualifications and none of the
disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot,
accordingly, be dispensed with, except by constitutional amendment. Obviously, every such constitutional grant or
conferment of a right is necessarily a negation of the authority of Congress or of any other branch of the
Government to deny said right to the subject of the grant — and, in this sense only, may the same partake of the
nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows Congress or
anybody else to vest in those lacking the qualifications and having the disqualifications mentioned in the
Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V
of the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election
Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768,
and incorporated into the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the
Administrative Code of 1917 — Act 2711 — as chapter 18 thereof, which, in turn, was amended by Act 3387,
approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below. 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 denial thereof to those who lacked the requisite qualification and possessed any of the
statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt than
the same conferred — not guaranteed — the authority to persons having the qualifications prescribed therein and
none of disqualifications to be specified in ordinary laws and, necessary implication, denied such right to those
lacking any said qualifications, or having any of the aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a
plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age
from twentyone (21) years to eighteen (18) years, which, however, did not materialize on account of the decision
of this Court in Tolentino v. Commission on Elections, 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 twentyone (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 18yearold 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, twentyone years of age or over, able to read and write," and
residents the barrio "during the six months immediately preceding election, duly registered in the list of voters"
and " otherwise disqualified ..." — just like the provisions of present and past election codes of the Philippines and
Art. V of the 1935 Constitution — "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21yearold members of the
assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also, because
provisions of a Constitution — particularly of a written and rigid one, like ours generally accorded a mandatory
status — unless the intention to the contrary is manifest, which is not so as regards said Art. V — for otherwise
they would not have been considered sufficiently important to be included in the Fundamental Law of the land. 48
Besides, it would be illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most important
measures for which it demands — in addition to favorable action of the barrio council — the approval of barrio
assembly through a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for
which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to
apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental
Law or revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser
qualifications for such ratification, notwithstanding the fact that the object thereof much more important — if not
fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971
Constitutional Convention, which a intended to be in force permanently, or, at least, for many decades, and to
affect the way of life of the nation — and, accordingly, demands greater experience and maturity on the part of
the electorate than that required for the election of public officers, 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
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against ... 743,869 who voted for its rejection," whereas, on the question whether or not the
people still wanted a plebiscite to be called to ratify the new Constitution, "... 14,298,814 answered that there was
no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite." In other words, it is conceded that the number of people who allegedly voted at the Citizens'
Assemblies for exceeded the number of registered voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies — and We have more to say on this point in
subsequent pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section
1 of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the
invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified
voters, the proceedings in the Citizens' Assemblies must be considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it is impossible
to ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from
the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 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 wellsettled meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn.
16, to have been used as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially." 57
It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The word "cast"
means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the choice of the voter
on the measure proposed. 58
In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising
— by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the
American regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform
official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of
keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the
1935 Constitution has been consistently interpreted in all plebiscites for the ratification rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null
and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly its
sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ."
The point to be stressed here is the term "independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission, would it have been
depends upon either Congress or the Judiciary? The answer must be the negative, because the functions of the
Commission — "enforcement and administration" of election laws — are neither legislative nor judicial in nature,
and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their nature
essentially executive, for which reason, the Commission would be under the "control" of the President, pursuant to
section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the
Commission) is an "independent" body. In other words, in amending the original 1935 Constitution, by inserting
therein said Art. X, on the Commission on Elections, the purpose was to make said Commission independent
principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional
organ, election laws in the Philippines were enforced by the then Department of the Interior, through its Executive
Bureau, one of the offices under the supervision and control of said Department. The same — like other
departments of the Executive Branch of the Government — was, in turn, under the control of the Chief Executive,
before the adoption of the 1935 Constitution, and had been — until the abolition of said Department, sometime
ago — under the control of the President of the Philippines, since the effectivity of said Fundamental Law. Under
the provisions thereof, the Executive could so use his power of control over the Department of the Interior and its
Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to deprive it, in
effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to perpetuate itself
therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the
Commission on Elections as a constitutional body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the long term of office of its members —
nine (9) years, except those first appointed 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 VicePresident, the Justices of the Supreme Court and
the Auditor General; that they may not be reappointed; that their salaries, "shall be neither increased nor
diminished during their term of office"; that the decisions the Commission "shall be subject to review by the
Supreme Court" only 61; that "(n)o pardon, parole, or suspension 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 the continuance in office, engage in the practice of any profession or intervene,
directly or indirectly, in the management or control of any private enterprise which in anyway may affected by the
functions of their office; nor shall they, directly or indirectly, be financially interested in any contract with the
Government or any subdivision or instrumentality thereof." 63 Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible protect and insure the independence of each member
of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on
Elections shall have exclusive charge of the enforcement and administration all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon it by law." It further provides that the
Commission "shall decide, save those involving the right to vote, all administrative question affecting elections,
including the determination of the number and location of polling places, and the appointment of election
inspectors and of other election officials." And, to forests possible conflicts or frictions between the Commission,
on one hand, and the other offices or agencies of the executive department, on the other, said section 2
postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied
with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the Commission" shall not be subject to
review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as
the Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants
additional powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below. 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; formation of lists of voters, the identification and registration of voters,
the proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and the
publication thereof; the establishment of municipal, provincial and files of registered voters; the composition and
appointment of board of election inspectors; the particulars of the official ballots to be used and the precautions to
be taken to insure authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of
inspectors; the rules for the appreciation of ballots and the preparation and disposition of election returns; the
constitution and operation of municipal, provincials and national boards of canvassers; the presentation of the
political parties and/or their candidates in each election precinct; the proclamation of the results, including, in the
case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of violation of
the provisions of said Election Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly, and
honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional
and statutory provisions was followed by the socalled Barangays or Citizens' Assemblies. And no reasons have
been given, or even sought to be given therefor. In many, if not most, instances, the election were held a viva
voce, thus depriving the electorate of the right to vote secretly — one of the most, fundamental and critical
features of our election laws from time immemorial — particularly at a time when the same was of utmost
importance, owing to the existence of Martial Law.
In Glen v. Gnau, 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 case
of 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 provision of the Election Code of 1971, insofar as
they are not inconsistent" with said decree — excepting those "regarding right and obligations of political parties
and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971
provides that "(a)ll elections of public officers except barrio officials and plebiscites shall be conducted in the
manner provided by this Code." General Order No. 20, dated January 7, 1973, postponing until further notice,
"the plebiscite scheduled to be held on January 15, 1973," said nothing about the procedure to be followed in
plebiscite to take place at such notice, and no other order or decree has been brought to Our attention, expressly
or impliedly repealing the provisions of Presidential Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of Presidential
Decree No. 73 insofar as they allow free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on the proposed Constitution ... ." This
specific mention of the portions of the decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or instructions — and, hence, the provisions of
Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification or rejection of the
proposed Constitution — remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86A — 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. 86A does not and cannot exclude the exercise of the
constitutional supervisory power of the Commission on Elections or its participation in the proceedings in said
Assemblies, if the same had been intended to constitute the "election" or Plebiscite required Art. V of the 1935
Constitution. The provision of Decree No. 86A directing the immediate submission of the result thereof to the
Department of Local Governments Community Development is not necessarily inconsistent with, and must be
subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive authority over
the enforcement and administration of all laws to the conduct of elections," if the proceedings in the Assemblies
would partake of the nature of an "election" or plebiscite for the ratification or rejection of the proposed
Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86B, dated 1973,
ordering "that important national issues shall from time to time; be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86A dated January 5, 1973 and that the
initial referendum include the matter of ratification of the Constitution by the 1971 Constitutional Convention" and
that "(t)he Secretary of the Department of Local Governments and Community Development shall insure the
implementation of this order." As in the case of Presidential Decrees Nos. 86 and 86A, the foregoing directives
do not necessarily exclude exercise of the powers vested by the 1935 Constitution in the Commission on
Elections, even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does not
possess. Copy of Presidential Decree No. 86B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the intervention of the
Commission on Elections, and without complying with the provisions of the Election Code of 1971 or even of those
of Presidential Decree No. 73. What is more, they were held under the supervision of the very officers and
agencies of the Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the 1935 Constitution would be favored thereby, owing to the practical indefinite
extension of their respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art.
XVII of the proposed Constitution, without any elections therefor. And the procedure therein mostly followed is
such that there is no reasonable means of checking the accuracy of the returns files by the officers who
conducted said plebiscites. This is another patent violation of Art. of the Constitution which can hardly be
sanctioned. And, since the provisions of this article form part of the fundamental scheme set forth in the 1935
Constitution, as amended, to insure the "free, orderly, and honest" expression of the people's will, the
aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite in the
Citizens' Assemblies, insofar as the same are claimed to have ratified the revised Constitution proposed by the
1971 Constitutional Convention. "... (a)ll the authorities agree that the legal definition of an election, as well as that
which is usually and ordinarily understood by the term, is a choosing or as election by those having a right to
participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any public measure
affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13
Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E.
1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being
contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at
least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact,
ratified, approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution
has thus been "substancially" complied with; and that the Court refrain from passing upon the validity of
Proclamation No. 1102, not only because such question is political in nature, but, also, because should the Court
invalidate the proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides
and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is
predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly
put it —
... every officer under a constitutional government must act according to law and subject to its
restrictions, and every departure therefrom or disregard thereof must subject him to the restraining
and controlling of the people, acting through the agency of the judiciary; for it must be remembered
that the people act through courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all official
action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority when he
certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventyone
(1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the
members of all the Barangays (Citizens Assemblies) throughout the Philippines and has thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in
said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive
the power to supervise or even exercise any authority whatsoever over "all laws relative to the conduct of
elections," and, hence, whether the elections are for the choice or selection of public officers or for the ratification
or rejection of any proposed amendment, or revision of the Fundamental Law, since the proceedings for the latter
are, also, referred to in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each
municipality a municipal association of presidents of the citizens' assemblies for each barrio of the municipality;
that the president of each such municipal association formed part of a provincial or city association of presidents
of such municipal associations; that the president of each one of these provincial or city associations in turn
formed part of a National Association or Federation of Presidents of such Provincial or City Associations; and that
one Francisco Cruz from Pasig, Rizal, as President of said National Association or Federation, reported to the
President of the Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens'
assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further intimated that
the said municipal associations had reported the results of the citizens' assemblies in their respective
municipalities to the corresponding Provincial Association, which, in turn, transmitted the results of the voting in
the to the Department of Local Governments and Community Development, which tabulated the results of the
voting in the citizens' assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as
President or acting President of the National Association or Federation, whereupon Mr. Cruz, acting in a
ceremonial capacity, reported said results (tabulated by the Department of Governments and Community
Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he
could possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or
ward citizens' assemblies, much less of a Provincial, City or National Association or Federation of Presidents of
any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of
same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of
aforementioned report of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or
circular, if any, creating or directing or authorizing creation, establishment or organization" of said municipal,
provincial and national associations, but neither a copy of alleged report to the President, nor a copy of any "
(p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence
of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of any factual and legal
foundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No. 1102, to the effect
that the proposed new or revised Constitution had been ratified by majority of the votes cast by the people, can
not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the Executive
and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case.
In fact, even a resolution of Congress declaring that a given person has been elected President or VicePresident
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 who had been elected President or VicePresident 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 Minnessota — "all taxes were required to be raised under the system known as the 'general property
tax.' Dissatisfaction with the results of this method and the development of more scientific and satisfactory
methods of raising revenue induced the Legislature to submit to the people an amendment to the Constitution
which provided merely that taxes shall be uniform upon the same class of subjects. This proposed amendment
was submitted at the general election held in November, 1906, and in due time it was certified by the state
canvassing board and proclaimed by the Governor as having been legally adopted. Acting upon the assumption
that the amendment had become a part of the Constitution, the Legislature enacted statutes providing for a State
Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held
constitutional" by said Court. "The district court found that the amendment had no in fact been adopted, and on
this appeal" the Supreme Court was "required to determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of the
proclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more
than tabulate the reports received from the various county board and add up and certify the results. State v.
Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers,
and canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law
declares that the decisions of the board shall be final" — and there is no such law in the cases at bar. "... The
correctness of the conclusion of the state board rests upon the correctness of the returns made by the county
boards and it is inconceivable that it was intended that this statement of result should be final and conclusive
regardless of the actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the
legal effect of the action of the canvassing board. Its purpose is to formally notify the people of the state of the
result of the voting as found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 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 v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections,
"the enforcement and administration of all laws relative to the conduct of elections," independently of the
Executive, and there is not even a certification by the Commission in support of the alleged results of the citizens'
assemblies relied upon in Proclamation No. 1102 — apart from the fact that on January 17, 1973 neither the
alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had
certified to the President the alleged result of the citizens' assemblies all over the Philippines — it follows
necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence
of the alleged ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding
topic, the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of the 1935 Constitution. In fact, it has not even been, ratified in accordance with
said proposed Constitution, the minimum age requirement therein for the exercise of the right of suffrage being
eighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting, which
was not observed in many, if not most, Citizens' Assemblies. Besides, both the 1935 Constitution and the
proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of
an amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase
"votes cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens' Assemblies.
75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L36165, asserts openly that Art. XV of the
Constitution has not been complied with, and since the alleged substantial compliance with the requirements
thereof partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving
such defense — which, if true, should be within their peculiar knowledge — is clearly on such respondents.
Accordingly, if despite the extensive notes and documents submitted by the parties herein, the members of the
Court do not know or are not prepared to say whether or not the majority of the people or of those who took part
in the Citizens' Assemblies have assented to the proposed Constitution, the logical step would be to give due
course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, thereafter,
to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise,
we would be placing upon the petitioners the burden of disproving a defense set up by the respondents, who
have not so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe
that many, if not most, of the people did not know that the Citizens' Assemblies were, at the time they were held,
plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite
cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until
January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to
be held on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed
Constitution.
In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced officially.
Then again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session
on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the
President does not have the legislative authority to call a plebiscite and appropriate funds therefor,
which Congress unquestionably could do, particularly in view of the formal postponement of the
plebiscite by the President — reportedly after consultation with, among others, the leaders of
Congress and the Commission on Elections — the Court deemed it more imperative to defer its final
action on these cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 — four (4) days
after the last hearing of said cases 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 preelectoral requirements, as well as to
afford the people a reasonable opportunity to be posted on the contents and implications of said transcendental
document. On January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until
further notice." How can said postponement be reconciled with the theory that the proceedings in the Citizens'
Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites," in effect, accelerated,
according to the theory of the Solicitor General, for the ratification of the proposed Constitution? If said
Assemblies were meant to be the plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was
the "plebiscite" postponed by General Order No. 20? Under these circumstances, it was only reasonable for the
people who attended such assemblies to believe that the same were not an "election" or plebiscite for the
ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the government? [Bulletin Today,
January 10, 1973; emphasis an additional question.]
[6] Do you approve of the citizens assemblies as the base of popular government to decide issues of
national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution?
[10] If the elections would not be held, when do you want the next elections to be called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a
proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7
— "Do you approve the new Constitution?" One approves "of" the act of another which does not need such
approval for the effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The
approval of the majority of the votes cast in plebiscite is, however, essential for an amendment to the Constitution
to be valid as part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question
No. 8 would have been unnecessary and improper, regardless of whether question No. 7 were answered
affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the proposed
Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith,
even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to
question No. 7 were in the negative, neither may another plebiscite be held, even if the majority of the answers to
question No. 8 were in the affirmative. In either case, not more than one plebiscite could be held for the
ratification or rejection of the proposed Constitution. In short, the insertion of said two (2) questions — apart from
the other questions adverted to above — indicates strongly that the proceedings therein did not partake of the
nature of a plebiscite or election for the ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by
the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial
knowledge that there have been no such citizens' assemblies in many parts of Manila and suburbs, not to say,
also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973,
to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the activities we undertook in effecting the referendum on
the eleven questions you wanted our people consulted on and the Summary of Results thereof for
each municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original five questions. Consequently,
when we received an instruction on January 10 to change the questions, we urgently suspended all
scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of Offices and other
government officials to another conference to discuss with them the new set of guidelines and
materials to be used.
On January 11, ... another instruction from the top was received to include the original five questions
among those to be discussed and asked in the Citizens' Assembly meetings. With this latest order,
we again had to make modifications in our instructions to all those managing and supervising the
holding of the Citizens' Assembly meetings throughout the province. ... Aside from the coordinators
we had from the Office of the Governor, the splendid cooperation and support extended by almost all
government officials and employees in the province, particularly of the Department of Education, PC
and PACD personnel, provided us with enough hands to trouble shoot and implement sudden
changes in the instructions anytime and anywhere needed. ...
... As to our people, in general, their enthusiastic participation showed their preference and readiness
to accept this new method of government to people consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly
meetings ..." and call all available officials "... to discuss with them the new set of guidelines and materials to be
used ... ." Then, "on January 11 ... another instruction from the top was received to include the original five
questions among those be discussed and asked in the Citizens' Assembly meetings. With this latest order, we
again had to make modifications in our instructions to all those managing and supervising holding of the Citizens'
Assembly meetings throughout province. ... As to our people, in general, their enthusiastic participation showed
their preference and readiness to accept the new method of government to people consultation in shaping up
government policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss
— not put into operation — means and ways to carry out the changing instructions from the top on how to
organize the citizens' assemblies, what to do therein and even what questions or topics to propound or touch in
said assemblies; 2) that the assemblies would involve no more than consultations or dialogues between people
and government — not decisions be made by the people; and 3) that said consultations were aimed only at
"shaping up government policies" and, hence could not, and did not, partake of the nature of a plebiscite for the
ratification or rejection of a proposed amendment of a new or revised Constitution for the latter does not entail the
formulation of a policy of the Government, but the making of decision by the people on the new way of life, as a
nation, they wish to have, once the proposed Constitution shall have been ratified.
If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11, 1973, one
can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern
Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including
those of their immediate families and their household, although duly registered voters in the area of Greater
Manila, were not even notified that citizens' assemblies would be held in the places where their respective
residences were located. In the Prohibition and Amendment case, 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.
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971,
under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign relations are being conducted under such
new or revised Constitution; that the Legislative Department has recognized the same; and that the people, in
general, have, by their acts or omissions, indicated their conformity thereto.
As regards the socalled political organs of the Government, gather that respondents refer mainly to the offices
under the Executive Department. In a sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic
representatives accredited to our Government, and even in devising administrative means and ways to better
carry into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent
on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so,
expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to
be republican is essentially the Congress or Legislative Department. Whatever may be the functions allocated to
the Executive Department — specially under a written, rigid Constitution with a republican system of Government
like ours — the role of that Department is inherently, basically and fundamentally executive in nature — to "take
care that the laws be faithfully executed," in the language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in
line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less
necessarily or even normally, be deduced from their acts in accordance therewith, because the are bound to obey
and act in conformity with the orders of the President, under whose "control" they are, pursuant to the 1935
Constitution. They have absolutely no other choice, specially in view of Proclamation No. 1081 placing the
Philippines under Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the
President thereafter, he had assumed all powers of Government — although some question his authority to do so
— and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on
January 17, 1973 — declaring that the Constitution proposed by the 1971 Constitutional Convention has been
ratified by the overwhelming majority of the people — that he could not do under the authority he claimed to have
under Martial Law, since September 21, 1972, except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under the Supreme Court, and which the President has
not ostensibly exercised, except as to some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in connection therewith pending final
determination of these cases, in which the effectivity of the aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts.
Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the commands of a superior officer or office, under
whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal
and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he
or it acted otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 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 L36142 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 wellestablished 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 statement may have been, the idea implied therein was too clear
an ominous for any member of Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without inviting or risking the application of Martial
Law to him. Under these conditions, I do not feel justified in holding that the failure of the members of Congress to
meet since January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of
the aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial
Law, neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their
compliance with a number of Presidential orders, decrees and/or instructions — some or many of which have
admittedly had salutary effects — issued subsequently thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial law connotes
power of the gun, meant coercion by the military, and compulsion and intimidation." 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 socalled 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 nonexistent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community
Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the
Philippines — and the records do not show that any such certification, to the President of the Philippines or to the
President Federation or National Association of presidents of Provincial Associations of presidents of municipal
association presidents of barrio or ward assemblies of citizens — would not, legally and constitutionally, be worth
the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of
the Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, according to
Article X of the Constitution, should not and must not be all participate in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States that courts
"will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the proposed
Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure followed in these five (5)
cases. In this connection, it should be noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to
comment on the respective petitions — with three (3) members of the voting to dismiss them outright — and then
considers comments thus submitted by the respondents as motions to dismiss, as well as set the same for
hearing. This was due to the transcendental nature of the main issue raised, the necessity of deciding the same
with utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of
said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and determination. If
this defense was sustained, the cases could readily be dismissed; but, owing to the importance of the questions
involved, a reasoned resolution was demanded by public interest. At the same time, respondents had cautioned
against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot
and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the
opinion that the aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion
passing upon the merits thereof. On the other hand, three (3) members of the Court — Justices Barredo, Antonio
and Esguerra — filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo
holding "that the 1935 Constitution has pro tanto passed into history and has been legitimately supplanted by the
Constitution in force by virtue of Proclamation 1102." 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 — the respective counsel filed extensive
notes on their or arguments, as well as on such additional arguments as they wished to submit, and reply notes or
memoranda, in addition to rejoinders thereto, aside from a sizeable number of document in support of their
respective contentions, or as required by the Court. The arguments, oral and written, submitted have been so
extensive and exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents
and purposes, the situation is as if — disregarding forms — the petitions had been given due course and the
cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should express their views on the
aforementioned issues as if the same were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the last pages
hereof, despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy,
President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon
the theory of separation of powers, that the judiciary will not issue such writ to the head of a coequal department,
like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case, as well as in cases L36142, L36164,
L36236 and L36283, my vote is that the petitions therein should be given due course, there being more than
prima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935
Constitution, either strictly, substantially, or has been acquiesced in by the people or majority thereof; that said
proposed Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the
Land, without prejudice to the submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the
Revised Election Code in force at the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands
of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not
probability; but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among
consistent ends or consistent values, there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would have been very difficult, if not
impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not
prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto
are basic, fundamental and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences
as appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of
the votes cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was
agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the
votes. It was further agreed of course that each member of the Court would expound in his individual opinion
and/or concurrence his own approach to the stated issues and deal with them and state (or not) his opinion
thereon singly or jointly and with such priority, qualifications and modifications as he may deem proper, as well as
discuss thereon other related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore nonjusticiable,
question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if
not strict, compliance) conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the members of the Court in their respect
opinions and/or concurrences, are as follows:
1. On the first issue involving the politicalquestion 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 nonpolitical question. Justices Makalintal and Castro did not vote squarely on this
question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote,
stating that "inasmuch as it is claimed there has been approval by the people, the Court may inquire into the
question of whether or not there has actually been such an approval, and, in the affirmative, the Court should
keep handsoff out of respect to the people's will, but, in negative, the Court may determine from both factual and
legal angles whether or not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio,
Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial
inquiry."
2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution,
which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly
ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and
intent of said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were
cast, reported and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no
means of refusing to recognize as a judge that factually there was voting and that the majority of the votes were
for considering as approved the 1973 Constitution without the necessity of the usual form of plebiscite followed in
past ratifications, I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people
may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them
by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has
been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has
been in effect substantial compliance with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no
majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have
already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression,
and there has even been no expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is
conceded that the doctrine stated in some American decisions to the effect that independently of the validity of the
ratification, a new Constitution once accepted acquiesced in by the people must be accorded recognition by the
Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of
time that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the
freedom of debate that is a concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question.
Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial
law, with the free expression of opinions through the usual media vehicle restricted, (they) have no means of
knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate
question posed by these cases to resolve which considerations other than judicial, an therefore beyond the
competence of this Court, 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.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments. It has been
judicially determined whether a proposed amendment received the constitutional majority of votes (Dayton v. St.
Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45
L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51
Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed amendment is a
single amendment, within the constitutional requirement that every amendment must be separately submitted
(State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v.
Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127
Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34
Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter
the resolution of submission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa,
543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39
South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep.
895); whether the description of the amendment and the form of the ballot are sufficient (Russell v. Croy, 164 M
69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General
[Mich.] 112 N.W. 127); whether the method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765;
Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relative to it is
sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849);
whether the submission may be well by resolution as by a legislative act approved by the executive (Com. v.
Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132
Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W.
418, 34 L.R.A. 97); at what election the amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the
determination of the question whether an amendment to the Constitution has been carried involves the exercise
of political, and not judicial, power. If this be so, it follows that the promulgation of any purported amendment by
the executive or any executive department is final, and that the action cannot be questioned by the judiciary; but,
with reference to the conditions precedent to submitting a proposed amendment to a vote of the people, it has
been repeatedly held, by courts of the highest respectability, that it is within the power of the judiciary to inquire
into the question, even in a collateral proceeding. ... It is to be noted that under section 1 of article 20 of the
Constitution of the state no amendment can become a part of the Constitution until ratified by a vote of the
people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite
majority in the Legislature, and afterwards be adopted by the requisite vote. ... It is the fact of a majority vote
which makes the amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in the particular case the court was called upon to
determine between rival governments, or whether the Legislature, or some board or official, had legally
performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it
was held that the General Assembly, under the power granted by the Constitution, could change the Constitution
only in the manner prescribed by it, and that it was the duty of the court to determine whether all prerequisites
had been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by
the people in convention or in a mode described by the Constitution itself, and that if the latter mode is adopted
every requisite of the Constitution must be observed. 'It has been said," says the court, "that certain acts are to be
done, certain requisitions are to be observed, before a change can be effected; but to what purpose are these
acts required, or these requisitions enjoined, if the Legislature or any other department of the government can
dispense with them. To do so would be to violate the instrument which they are sworn to support; and every
principle of public law and sound constitutional policy requires the court to pronounce against every amendment
which is shown not to have been made in accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form an original Constitution, or
abrogate an old one and form a new one, at any time, without any political restriction, except the Constitution of
the United States, but if they undertake to add an amendment, by the authority of legislation to a Constitution
already in existence, they can do it only by the method pointed out by the Constitution to which the amendment is
added. The power to amend a Constitution by legislative action does not confer the power to break it, any more
than it confers the power to legislate on any other subject contrary to its prohibitions.' So, in State v. Timme, 54
Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the Constitution of the state without a
compliance with the provisions thereof, both in the passage of such amendment by the Legislature and the
manner of submitting it to the people. The courts have not all agreed as to the strictness of compliance which
should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to
the Constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra,
that 'we entertain no doubt that, to change the Constitution in an other mode than by a convention, every requisite
which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the
amendment,' the court held that, 'as substance of right is grander and more potent than methods of form,' there
had been substantial compliance with the constitutional requirement that a proposed amendment to the
Constitution must be entered at length on the legislative journal. It appears that the joint resolution making
submission simply provided that a proposition should be submitted to the electors at the general election of 1880.
It did not declare that the machinery of the general election law should control, or that any particular officers or
board would receive, count, or canvass the votes cast. But the existing election machinery was adequate, and the
votes were received, counted, and canvassed, and the result declared as fully as though it had been in terms so
ordered. These methods had been followed in the adoption of previous amendments, and was held that,
conceding the irregularity of the proceedings the Legislature and the doubtful scope of the provisions for the
election, yet in view of the very uncertainty of such provision the past legislative history of similar propositions, the
universal prior acquiescence in the same forms of procedure and the popular and unchallenged acceptance of
the legal pendency before the people of the question of the amendment for decision, and in view of the duty cast
upon the court taking judicial knowledge of anything affecting the existence and validity of any law or portion of
the Constitution, it must be adjudged that the proposed amendment became part of the Constitution. The effect
was to hold that a provision of the Constitution requiring the proposed amendment to be entered in full on the
journals was directory, and not mandatory. This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113,
10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been
universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas case said:
'The reasoning by which the learned court reached the conclusion it did is not based on any sound legal
principles, but contrary to them. Neither the argument nor the conclusion can command our assent or approval.
The argument is illogical, and based on premises which are without any sound foundation, and rests merely on
assumption.' See, also, the wellconsidered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222.
All these cases concede the jurisdiction of the court to determine whether, in submitting a proposed amendment
to the people, the Legislature legally observed the constitutional provisions as to the manner of procedure. In
Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance of a citizen and a
taxpayer, restrained the Secretary of State from taking steps to submit to the people a proposed amendment to
the Constitution agreed to by the Legislature on the ground that the Legislature had not acted in conformity with
the Constitution and that the proposed amendment was of such a character that it could not properly become a
part of the Constitution. The Supreme Court of Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609.
The amendment, which concededly had been adopted by the people, had not, before its submission, been
entered in full upon the legislative journals, as required by the Constitution, and it was held that this was a
material variance in both form and substance from the constitutional requirements, and that the amendment did
not, therefore, become a part of the Constitution. As to the claim that the question was political, and not judicial, it
was said that, while it is not competent for courts to inquire into the validity of the Constitution and the form of
government under which they themselves exist, and from which they derive their powers, yet, where the existing
Constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in
strict conformity to that method; and it is the duty of the courts in a proper case, when an amendment does not
relate to their own power or functions, to inquire whether, in the adoption of the amendment, the provisions of the
existing Constitution have been observed, and, if not, to declare the amendment invalid and of no force. This case
was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution had been
legally adopted was treated as a judicial question. By the Constitution a proposed amendment was required to be
approved by Legislatures before its submission to the people. In this instance a bill was passed which contained
17 amendments. The next Legislature rejected 9 and adopted 8 of the amendments, and submitted them to the
people. The majority of the people voted for their adoption; but it was contended that the Constitution
contemplated and required that the same bill and the same amendments, without change, should approved by
both Legislatures, and that it did not follow because the second Legislature adopted separately 8 out of 17
amendments adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been
voted upon the second in the form adopted by the first body. The substance of the contention was that there had
not been a concurrence of the two Legislatures on the same amendments, according to the letter and spirit of the
Constitution. The court held that the power of the Legislature in submitting amendments could not be
distinguished from the powers of convention, and that, as the people had spoken and ratified the amendments,
they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed amendment to
Constitution could not be submitted to the people at any other than a general election; but, as the amendment
under consideration had been submitted after the Constitution been changed, it had been legally submitted and
adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the Constitution had
been legally submitted and adopted by the people was held to be judicial, and not political, in its nature. The
amendment under consideration changed the Constitution by providing for an elective, instead of an appointive,
judiciary. It was contented that the amendments had been improperly submitted and adopted by a majority of the
qualified voters voting at election, as required by the Constitution. The law did direct how the result of the election
should be determined. The Legislature by joint resolution recited that the election had been duly held throughout
the state, and, as it appeared from the returns made to the Secretary of State, that 21,169 votes were cast in
favor of, and 8,643 votes against, the amendment, it resolved 'that said amendment be, and hereby is, inserted
into the Constitution of the state of Mississippi as a part of the Constitution.' In fact, the amendment was not
submitted in the manner prescribed by the Constitution, and it did not receive a majority of all the qualified voters
voting at the election. It was argued that the rules prescribed by the Constitution "are all for the guidance of the
Legislature, and from the very nature of the thing the Legislature must be the exclusive judge of all questions to
be measured or determined by these rules. Whether the question be political, and certainly a legislative one, or
judicial, to be determined by the courts, this section of rules, not only of procedure, but of final judgment as well,
confides to the separate magistracy of the legislative department full power to hear, consider, and adjudge that
question. The Legislature puts the question to the qualified electors. The qualified electors answer back to the
Legislature. "If it shall appear" to the Legislature that its question has been answered in the affirmative, the
amendment is inserted and made a part of the Constitution. The Governor and the courts have no authority to
speak at any stage of the proceedings between the sovereign and the Legislature, and when the matter is thus
concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held that the
question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether
the submission was according to the requirements of the Constitution, and whether the proposition was in fact
adopted, were all judicial, and not political, questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction
not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which
the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know
what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity,
imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all
others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of the judicial
department of the government to determine whether the legislative department or its officers had observed the
constitutional injunctions in attempting to amend the Constitution, and to annul their acts if they had not done so.
The case is an interesting and wellconsidered one. The Constitution provided the manner in which proposed
amendments should be submitted to the people, but did not provide a method for canvassing the votes. The
Legislature having agreed to certain proposed amendments, passed an act for submitting the same to the people.
This statute provided for the transmission to the Secretary of State of certificate showing the result of the voting
throughout the state, and made it the duty of the Governor at the designated time summon four or more
Senators, who, with the Governor, should constitute a board of state canvassers to canvass and estimate the
votes for and against each amendment. This board was to determine and declare which of the proposed
amendments had been adopted and to deliver a statement of the results to the Secretary of State, and "any
proposed amendment, which by said certificate and determination of the board of canvassers shall appear to
have received in its favor the majority of all the votes cast in the state for and against said proposed amendment,
shall from the time of filing such certificate be and become an amendment to and a part of the Constitution of the
state; and it shall be the duty of the Governor of the state forthwith, after such a determination, to issue a
proclamation declaring which of the said proposed amendments have been adopted by the people." This board
was required to file a statement of the result of the election, and the Governor to issue his proclamation declaring
that the amendment had been adopted and become a part of the Constitution. At the instance of a taxpayer the
Supreme Court allowed a writ of certiorari to remove into the court for review the statement of the results of the
election made by the canvassing board, in order that it might be judicially determined whether on the facts shown
in that statement the board had legally determined that the proposed amendment had been adopted. The
Supreme Court decided that the concurrence of the board of state canvassers and the executive department of
the government in their respective official functions placed the subjectmatter 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 subjectmatter, unless it
be true, as insisted, that the judicial department of the government has not the right to consider whether the
legislative department and its agencies have observed constitutional injunctions in attempting to amend the
Constitution, and to annul their acts in case that they have not done so. That such a proposition is not true seems
to be indicated by the whole history of jurisprudence in this country.' The court, after considering the case on the
merits, held that the proper conclusion had been drawn therefrom, and that the amendment in question was
legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question which we have
under consideration. In reference to the contention that the Constitution intended to delegate to the Speaker of
the House of Representatives the power to determine whether an amendment had been adopted, and that the
question was political, and not judicial, the court observed: "The argument has often been made in similar cases
to the courts, and it is found in many dissenting opinions; but, with probably a few exceptions, it is not found in any
prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional requirement of
publication of a proposed constitutional provision for three months prior to the election at which it is to be
submitted to the people is mandatory and that noncompliance therewith renders the adoption of an amendment
of no effect."
ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays
(Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important
national issues;
WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution proposed by the
1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the
proposed Constitution to the Citizens Assemblies or Barangays should taken as a plebiscite in itself in view of the
fact that freedom of debate has always been limited to the leadership in political, economic and social fields, and
that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens
Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby order that important national issues shall from time to time be referred to
the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86A dated
January 5, 1973 an that the initial referendum shall include the matter of ratification of the Constitution proposed
by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community Development shall insure the
implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventythree.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary
Separate Opinions

MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima
facie case in their petitions to justify their being given due course. Considering on the one hand the urgency of the
matter and on the other hand its transcendental importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required them to submit their comments on the
petitions. After the comments were filed We considered them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days, morning and afternoon, and could not have been more
exhaustive if the petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the
President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the
proposed Constitution, because it was not in accordance with the existing Constitution (of 1935) and the Election
Code of 1971. Other grounds are relied upon by the petitioners in support of their basic proposition, but to our
mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint
session or by a Convention called by it for the purpose) "shall be valid part of this Constitution when approved by
a majority of votes cast at an election at which the amendments submitted to the people for their ratification." At
the time Constitution was approved by the Constitutional Convention on February 8, 1935, and ratified in a
plebiscite held on following May 14, the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute ascertaining the
people's choices among candidates for public offices, or their will on important matters submitted to the pursuant
to law, for approval. It was in this sense that word was used by the framers in Article XV (also in Articles VI and
VII), and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935
as well as the subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940
(establishment of a bicameral legislature; eligibility of the President and the Vice President for re election; creation
of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the House of
Representatives and eligibility of members of Congress to run for the Constitutional Convention without forfeiture
of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code." This is a statutory requirement designed, as
were the other election laws previously in force, to carry out the constitutional mandate relative to the exercise of
the right suffrage, and with specific reference to the term "plebiscites," the provision of Article XV regarding
ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof.
Section 99 requires that qualified voters be registered in a permanent list, the qualifications being those set forth
in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence. These
qualifications are reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of persons
disqualified to vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for
registering voters, the records, of registration and the custody thereof, the description and printing of official
ballots, the actual casting of votes and their subsequent counting by the boards of inspectors, the rules for
appreciation of ballots, and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances should
be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No.
2 passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election at which they are submitted
to the people for their ratification pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the
Constitution of nineteen hundred and thirtyfive 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. L34150, 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 twentyone to eighteen
years and was approved by the Convention for submission to a plebiscite ahead of and separately from other
amendments still being or to be considered by it, so as to enable the youth to be thus enfranchised to participate
in the plebiscite for the ratification of such other amendments later. This Court held that such separate submission
was violative of Article XV, Section 1, of the Constitution, which contemplated that "all the amendments to be
proposed by the same Convention must be submitted to the people in a single "election" or plebiscite." * Thus a
grammatical construction based on a singular, instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite
which had been called to ratify a proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of just one amendment, as in Tolentino
vs. COMELEC, but the ratification of an entire charter setting up a new form of government; and the issue has
arisen not because of a disputed construction of one word or one provision in the 1935 Constitution but because
no election or plebiscite in accordance with that Constitution and with the Election Code of 1971 was held for the
purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution were created by Presidential Decree No.
86 dated December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford
ample opportunities for the citizenry to express their views on important national issues." The Assemblies "shall
consist of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the
barrio, district or ward secretary." By Presidential Decree No. 86A, 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 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 plebiscite which he had called for January 15, 1973 (Presidential Decree No. 73) for the
ratification of the Constitution, and that he was considering two 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 plebiscite was reworded as follows: "Do you like
the plebiscite to be held later?" The implication, it may likewise be noted, was that the Assemblies should express
their views as to 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 accordance with the provisions of the
1935 Constitution?
(5) If the elections would not be held, when do you want the next elections to be called?
(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied].
Appended to the six additional questions above quoted were the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
QUESTION No. 2
QUESTION No. 3
New Constitution.
QUESTION No. 4
QUESTION No. 5
QUESTION No. 6
accomplish all his reform program and establish normalcy in the country. If all other
the lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion was broached,
for the first time, that the plebiscite should be done away with and a favorable vote by the Assemblies deemed
equivalent ratification. This was done, not in the questionnaire itself, but in the suggested answer to question No.
3. Strangely, however, it was not similarly suggested that an unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was conducted in the
Citizen Assemblies, assuming that such voting was held, was not within the intendment of Article XV, Section 1, of
the 1935 Constitution nor in accordance with the Election Code of 1971. The referendum can by no means be
considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the draft
Constitution itself, or as the election intended by Congress when it passed Resolution No. 2 on March 16, 1967
calling a Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to
qualified, let alone registered voters, but included all citizens from the age of fifteen, and regardless of whether or
not they were illiterates, feebleminded, or ex convicts * — these being the classes of persons expressly disqualified from voting by
Section 102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should
participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of the essential
features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures was
prescribed or followed. The Commission on Elections, which is the constitutional body charged with the enforcement and administration of all laws relative to
the conduct of elections, took no part at all, either by way of supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the
members of the Citizens Assemblies had voted for the adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971.
The suggestion misses the point entirely. It is of the essence of a valid exercise of the right of suffrage that not
only must a majority or plurality of the voters carry the day but that the same must be duly ascertained in
accordance with the procedure prescribed by law. In other words the very existence of such majority or plurality
depends upon the manner of its ascertainment, and to conclude that it exists even if it has not been ascertained
according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for noncompliance 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 nonjusticiable, 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 L36165), in their respective capacities as
President and President Pro Tempore of the Senate of the Philippines, and through their counsel, Senator Arturo
Tolentino, likewise invoke the political question doctrine, but on a ground not concurred in by the Solicitor General,
namely, that approval of the 1973 Constitution by the people was made under a revolutionary government, in the
course of a successful political revolution, which was converted by act of the people to the present de jure
government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the
assumption, conceded by all, that the Constitution was in full force and effect, with the power and authority of the
entire Government behind it; and the task of this Court was simply to determine whether or not the particular act
or statute that was being challenged contravened some rule or mandate of that Constitution. The process
employed was one of interpretation and synthesis. In the cases at bar there is no such assumption: the
Constitution (1935) has been derogated and its continued existence as well as the validity of the act of derogation
is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of the
Government — the Executive Departments and the two Houses of Congress — have accepted the new
Constitution as effective: the former by organizing themselves and discharging their functions under it, and the
latter by not convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and
in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in
accordance with Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restated at same length if only because it
would constitute, if sustained, the most convenient ground for the invocation of the politicalquestion 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 CommanderinChief of all the Armed Forces of the Philippines." By this order, it is pointed out, the CommanderinChief 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. 3A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution,
which thereupon converted the government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification
as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the
issue of whether or not that Constitution has become effective and, as necessary corollary, whether or not the
government legitimately functions under it instead of under the 1935 Constitution, is political and therefore non
judicial in nature. Under such a postulate what the people did in the Citizen Assemblies should be taken as an
exercise of the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be the least doubt that their act would be
political and not subject to judicial review but only to the judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government gains authority and dominance through force, it can be
effectively challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation
would be any different, as far as the doctrine of judicial review is concerned, if no force had been resorted to and
the people, in defiance of the existing Constitution but peacefully because of the absence of any appreciable
opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such
a reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but
leave it to be decided through political means.
The logic of the politicalquestion doctrine is illustrated in statement of the U.S. Supreme Court in a case * relied
upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue
of which of two opposing governments struggling for supremacy in the State of Rhode Island was the lawful one. The issue had previously come up in
several other cases before the courts of the State, which uniformly held that the inquiry belonged to the political power and not to the judicial. Commenting
on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case, and should come to
the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and
incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone
in order to be able to decide at all, the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the cases at bar only
on the premise that the ratification of the Constitution was a revolutionary act and that the government now
functioning it is the product of such revolution. However, we are not prepared to agree that the premise is
justified.
In the first, place, with specific reference to the questioned ratification, several significant circumstances may be
noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base
of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express
their views on important national issues." (2) The President announced, according to the Daily Express of January
2, 1973, that "the referendum will be in the nature of a loose consultation with the people." (3) The question, as
submitted to them on the particular point at issue here, was "Do you a approve of the Constitution?" (4) President
Marcos, in proclaiming that the Constitution had been ratified, stated as follows: "(S)ince the referendum results
show that more than ninetyfive (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 noncompliance with
the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess
that after considering all the available evidence and all the relevant circumstances we have found no reasonably
reliable answer to the question. On one hand we read, for instance, the following public statements of the
President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our people.
We have committed ourselves to this revolution. We have pledged to it our future, our fortunes, our
lives, our destiny. We have burned our bridges behind us. Let no man misunderstand the strength of
our resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said the following,
among other things:
... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable matters,
on matters that may come before the experts and interpreters of the law. But we cannot disqualify
the people from speaking on what we and the people consider purely political matters especially
those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly those that refer to the form of
government which the people want ... The implications of disregarding the people's will are too
awesome to be even considered. For if any power in government should even dare to disregard the
people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer tolerate any
attempt to undermine the stability of their Republic; they will rise up in arms not in revolt against the
Republic but in protection of the Republic which they have installed. It is quite clear when the people
say, we ratify the Constitution, that they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day before, from which
the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary concessions to
traditional democratic process to hold back our people's clear and unequivocal resolve and mandate
to meet and overcome the extraordinary challenges presented by these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed reference to "the
demand of some of our citizens ... that when all other measures should fail, that the President be directed to
organize and establish a Revolutionary Government," but in the next breath added: "... if we do ratify the
Constitution, how can we speak of Revolutionary Government? They cannot be compatible ..." "(I)t is my feeling,"
he said, "that the Citizens' Assemblies which submitted this recommendation merely sought articulate their
impatience with the status quo that has brought about anarchy, confusion and misery to the masses ..." The only
alternatives which the President clearly implied by the foregoing statements were the ratification of the new
Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely,
a return to the 1935 Constitution, for it was the status quo under that Constitution that had caused "anarchy,
confusion and misery." The message seems clear: rather than return to such status quo, he would heed the
recommendation of the Citizens' Assemblies to establish a revolutionary government, because that would be the
only other way to carry out the reforms he had envisioned and initiated — reforms which, in all fairness and
honesty, must be given credit for the improved quality of life in its many aspects, except only in the field of civil
liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection with the ratification of the Constitution was meant to be
irreversible, and that nothing anyone could say would make the least difference. And if this is a correct and
accurate assessment of the situation, then we would say that since it has been brought about by political action
and is now maintained by the government that is in undisputed authority and dominance, the matter lies beyond
the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has professed
fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and social change ...
but that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in the President by the
Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions. The Government of the Republic
of the Philippines which was established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and
reform our society...
I have had to use this constitutional power in order that we may not completely lose the civil rights
and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the stronger powers of the
Constitution.
(Vital Documents, pp. 112; emphasis supplied).
In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of
January 29, 1973), the following appears:
xxx xxx xxx
Q. Now that you have gotten off the constitutional track, won't you be in serious trouble if
you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am doing is in accordance
with the 1935 Constitution. The only thing is that instead of 18yearolds voting, we have
allowed 15yearolds the right to vote. But the 15yearolds of today are highschool
students, if not graduates, and they are better informed than my contemporaries at that
age. On the matter of whether it is constitutional to proclaim martial law, it is
constitutional because the Constitution provides for it in the event of invasion,
insurrection, rebellion or immediate danger thereof. We may quarrel about whether what
we have gone through is sufficient cause to proclaim martial law but at the very least
there is a danger of rebellion because so many of our soldiers have been killed. You
must remember this (martial law provision) was lifted from the American legislation that
was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the President.
We have earlier made reference to subjective factors on which this Court, to our mind, is in no position to pass
judgment. Among them is the President's own assessment of the will of the people as expressed through the
Citizens Assemblies and of the importance of the 1973 Constitution to the successful implementation of the social
and economic reforms he has started or envisioned. If he should decide that there is no turning back, that what
the people recommended through the Citizens Assemblies, as they were reported to him, demand that the action
he took pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935
Constitution and related statutes, we have discharged our sworn duty as we conceive it to be. The President
should now perhaps decide, if he has not already decided, whether adherence to such procedure is weighty
enough a consideration, if only to dispel any cloud of doubt that may now and in the future shroud the nation's
Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution,
since its submission to the Citizens Assemblies, has found acceptance among the people, such issue being
related to the political question theory propounded by the respondents. We have not tarried on the point at all
since we find no reliable basis on which to form a judgment. Under a regime of martial law, with the free
expression of opinions through the usual media vehicles restricted, we have no means of knowing, to the point of
judicial certainty, whether the people have accepted the Constitution. In any event, we do not find the issue
decisive insofar as our vote in these cases is concerned. To interpret the Constitution — that is judicial. That the
Constitution should be deemed in effect because of popular acquiescence — that is political, and therefore
beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of the Supplemental
Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by
this Court on January 22, 1978. Of course, there are amplifications of some of the grounds previously alleged and
in the course of the unprecedented fiveday hearing that was held from February 12 to 16 last, more extensive
and illuminating arguments were heard by Us, but, in my estimation, and with due recognition of the sincerety,
brilliance and eloquence of counsels, nothing more cogent and compelling than what had already been previously
presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason why I should change the
position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these petitions were
initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the significance to our
people and in history of the individual stands of the members of the Court in relation to said issues and to the final
outcome of these cases, and considering that I reserved before the filing of a more extended opinion, I will take
this opportunity to explain further why I hold that the 1973 Constitution is already in force, if only to clarify that
apart from the people's right of revolution to which I made pointed reference in my previous opinion, I can see
now, after further reflection, that the vote of the people in the referendum in the Citizens Assemblies held on
January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more importantly as
a political act than as a purely legal one with the result that such vote to consider the 1973 Constitution as ratified
without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935 of
the Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the
Constitution, 1940 of the reelection of the President, the bicameral legislature and the Commission on Elections,
1947 of the parity amendment and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed as a
valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed
this explanation may be considered as a modification of my rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the enforceability of the new Constitution is even firmer now than
ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction
that the best interests of all concerned would be best served by the Supreme Court holding that the 1973
Constitution is now in force, not necessarily as a consequence of the revolutionary concept previously suggested
by me, but upon the ground that as a political, more than as a legal, act of the people, the result of the
referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution.
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 secondreading voting only on an insignificant number of proposals — until
September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proclamation 1081
declaring martial law throughout the country. An attempt was made to have the Convention recessed until after
the lifting of martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the
activities within the assembly shifted to high gear. As if unmindful of the arrest and continued detention of several
of its members, the convention gathered swift momentum in its work, and on November 30, 1972, it approved by
overwhelming vote the draft of a complete constitution, instead of mere specific amendments of particular
portions of the Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited
coverage of the workings in the convention by the mass media. At the same time, public debates and discussions
on various aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President Ferdinand
Marcos that a decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate
date as he shall determine and providing for necessary funds therefor." Acting under this authority, December 1,
1972, the President issued Presidential Decree No. 73 submitting the draft constitution for ratification by the
people at a plebiscite set for January 15, 1973. This order contained provisions more or less similar to the
plebiscite laws passed by Congress relative to the past plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the
authorities to allow and encourage public and free discussions on proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the President ordered the suspension the effects of martial law
and lifted the suspension of privilege of the writ of habeas corpus insofar as activities connected with the
ratification of the draft constitution were concerned. These two orders were not, however, to last very long. On
January 7, 1973, the President, invoking information related to him that the area of public debate and discussion
had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes
for which they were issued and to foment public confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens
Assemblies "so as to afford ample opportunities for the citizenry to express their views on important national
issues" and one of the questions presented to said assemblies was: "Do you like the plebiscite on the proposed
Constitution to be held later" So, the same order of January 7, 1973, General Order No. 20, the President
ordered, "that the plebiscite scheduled to be held January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86A providing as
follows:
PRESIDENTIAL DECREE NO. 86A
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 daytoday 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 CommanderinChief of all Armed Forces of the
Philippines, do hereby declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated
December 31, 1972, shall constitute the base for citizen participation in governmental affairs and
their collective views shall be considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the
country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of elections in November 1973, and
others in the future, which shall serve as guide or basis for action or decision by the national
government;
3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those specified in paragraph 2 hereof, and submit
results thereof to the Department of Local Governments Community Development immediately
thereafter, pursuant to express will of the people as reflected in the reports gathered from the many
thousands of barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and
seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86B reading thus:
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for
resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission
of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite
in itself in view of the fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring this down to the level of the
people themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
in me vested by the Constitution, do hereby order that important national issues shall from time to
time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86A 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
seventythree.
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:
national interests?
(2) Do you approve of the New Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished "comments" on the said
questions more or less suggestive of the answer desired. It may assumed that the said "comments" came from
official sources, albeit specifically unidentified. As petitioners point out, the most relevant of these "comments"
were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is to be convened at
QUESTION No. 3
New Constitution.
If the Citizens Assemblies approve of the new Constitution then the new Constitution
The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were
determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of Local Governments.
The transmission of the results was made by telegram, telephone, the provincial government SSB
System in each province connecting all towns; the SSB communication of the PACD connecting most
provinces; the Department of Public Information Network System; the Weather Bureau
Communication System connecting all provincial capitals and the National Civil Defense Network
connecting all provincial capitals. The certificates of results were then flown to Manila to confirm the
previous figures received by the aforementioned means of transmission. The certificates of results
tallied with the previous figures taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies
operation at the Department wherein the identity of the barrio and the province was immediately
given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted
the figures they received from the field to the central committee to tabulate the returns. The last
figures were tabulated at 12 midnight of January 16, 1973 and early morning of January 17, 1973
and were then communicated to the President by the Department of Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January 17, 1973. Said
proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventyone Constitutional
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizen to express their
views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86A,
dated January 5, 1973, the following questions were posed before Citizens' Assemblies or
WHEREAS, fourteen million nine hundred seventysix thousand five hundred sixty one (14,976,561)
Constitution, as against seven hundred fortythree thousand eight hundred sixty nine (743,869) who
plebiscite to be called to ratify the new Constitution fourteen million two hundred ninetyeight
thousand eight hundred fourteen (14,298,814) answered that there was no need for plebiscite and
WHEREAS, since the referendum results show that more than ninetyfive (95) percent of the
members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan
ratified by an overwhelmingly majority of all of the votes cast by the members of all the Barangays
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
seventythree.
The first attempt to question the steps just enumerated taken by the President was in the socalled Plebiscite
Cases, ten in number, which were filed by different petitioners during the first half of December 1972.1 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. 86A, quoted above. And
when Presidential Decree No. 86B, also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the "comments", petitioners sensed that a new and
unorthodox procedure was being adopted to secure approval by the people of the new Constitution, hence
Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases
dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and
injunction of the proceedings going on. Principal objective was to prevent that the President be furnished the
report of the results of the referendum and thereby disable him from carrying out what petitioners were
apprehensively foreseeing would be done — the issuance of some kind of proclamation, order or decree,
declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same day,
January 15, which was Monday, to consider the supplemental motion as a supplemental petition and to require
the respondents to answer the same the next Wednesday, January 17th, before the hour of the hearing of the
petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of
the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be
repeated here. Suffice it to state no that before the hearing could be closed and while Counsel Tañada was still
insisting on his prayer for preliminary injunction or restraining order, the Secretary of Justice arrived and
personally handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00 o'clock
that same morning. In other words, the valiant and persistent efforts of petitioners and their counsels were
overtaken by adverse developments, and in the mind of the majority of the members of the Court, the cases had
become academic. For my part, I took the view that even on the basis of the supplemental petition and the
answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's
pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for
lack, according them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate"
cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by my
learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino
for respondent Gil J. Puyat and Jose Roy, who have been sued as President and President Pro Tempore of the
Senate, to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution,
from the 11man tribunal under the 1935 Constitution to a 15man Court, makes of these cases which were filed
after January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified, political nature
and beyond our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to
ten for the declaration of unconstitutionality of a treaty, executive agreement2 or law, the Court would have to
resolve first as a prejudicial question whether the Court is acting in these cases as the 15man or the 11man
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 15Man or the 11man 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 11man 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 86A and 86B and related orders of the President as not being in conformity with Article XV
of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these
cases, even if we have it understood that by the vote of justices in favor of such dismissal, We intended to mean
the implementation or enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to speculation. By nature I am averse to
ambiguity and equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is
uncertainty as to the juridical significance of any decision of the Court which is precisely being looked upon as the
haven in which doubts are supposed to be authoritatively dispelled. Besides, from very nature of things, one thing
is indubitably beyond dispute — we cannot act in both capacities of a 15man and an 11man Court at the same
time, in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in
force. Our inescapable duty is to make a choice between them, according to what law and other considerations
inherent to our function dictate. I cannot bear the thought that someone may someday say that the Supreme
Court of the Philippines once decided a case without knowing the basis of its author to act or that it was ever
wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to
straighten out this grave of issue touching on the capacity in which the Court acting in these cases, I hold that we
have no alternative but adopt in the present situation the orthodox rule that when validity of an act or law is
challenged as being repugnant constitutional mandate, the same is allowed to have effect until the Supreme
Court rules that it is unconstitutional. Stated differently, We have to proceed on the assumption that the new
Constitution is in force and that We are acting in these cases as the 15man Supreme Court provided for there
Contrary to counsel's contention, there is here no prejudgment for or against any of the two constitutions. The
truth of matter is simply that in the normal and logical conduct governmental activities, it is neither practical nor
wise to defer the course of any action until after the courts have ascertained their legality, not only because if that
were to be the rule, the functioning of government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the first instance accord due respect to the acts
of the other departments, as otherwise, the smooth running of the government would have to depend entirely on
the unanimity of opinions among all its departments, which is hardly possible, unless it is assumed that only the
judges have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which
is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world that
has recognized judicial supremacy as its basic governmental principle, no matter how desirable we might believe
the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this Court is still
functioning under the 1935 Constitution. It is undeniable that the whole government, including the provincial,
municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is operating under the
1973 Constitution. Almost daily, presidential orders and decrees of the most legislative character affecting
practically every aspect of governmental and private activity as well as the relations between the government and
the citizenry are pouring out from Malacañang under the authority of said Constitution. On the other hand, taxes
are being exacted and penalties in connection therewith are being imposed under said orders and decrees.
Obligations have been contracted and business and industrial plans have been and are being projected pursuant
to them. Displacements of public officials and employees in big numbers are going on in obedience to them. For
the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments,
which even unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings within the judiciary amount its different
components, what with the lower courts considering such orders and decrees as forming part of the law of the
land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at
bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the Supreme Court,
and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait
for its decision. Accepting the truth of this assertion, it does necessarily follow that by this attitude of the President,
considers the Supreme Court as still operating under the Constitution. Quite on the contrary, it is a fact that he
has given instructions for the payment of the justices in accordance with the rate fixed in the New Constitution.
Not only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all
matters related to the administrative supervision of the lower courts which by the new charter has been
transferred from the Department of Justice to the Supreme Court, and as far as I know, President has not
countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented
the justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence
considering that with the presence of ten justices who are the Court now, there is a working quorum, and the
addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because,
while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the votes of the
justices to added would only be committed to upholding the same, since they cannot by any standard be expected
to vote against legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing
here with a whole constitution that radically modifies or alters only the form of our government from presidential
parliamentary but also other constitutionally institutions vitally affecting all levels of society. It is, to mind,
unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935 Constitution, with a few
improvements. A cursory perusal of the former should convince anyone that it is in essence a new one. While it
does retain republicanism as the basic governmental tenet, the institutional changes introduced thereby are
rather radical and its social orientation is decidedly more socialistic, just as its nationalistic features are somewhat
different in certain respects. One cannot but note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity clauses, involving as they do the statement of
general principles, the citizenship and suffrage qualifications, the articles on the form of government, the judiciary
provisions, the spelling out of the duties and responsibilities not only of citizens but also of officers of the
government and the provisions on the national economy as well as the patrimony of the nation, not to mention the
distinctive features of the general provisions. What is more, the transitory provisions notably depart from
traditional and orthodox views in that, in general, the powers of government during the interim period are more or
less concentrated in the President, to the extent that the continuation or discontinuance of what is now practically
a onemanrule, 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 thirtyfive and all amendments thereto" and (2) its transitory provisions expressly continue the
effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials, not adversely affected
by it, which would have been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary
(which include the Chief Justice and Associate Justices of Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc." By virtue of the presumptive validity of the new
charter, all of form part of the 15manCourt provided for therein correspondingly, We have in legal contemplation,
ceased in the meanwhile to be members of the 11manCourt in the 1935 Constitution. Should the Court finally
decide that the Constitution is invalid, then We would automatically revert to our positions in the 11man Court,
otherwise, We would just continue to be in our membership in the 15manCourt, unless We feel We cannot in
conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11manCourt 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 15manCourt, since that would tantamount
to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the
1973 Constitution it purports to declare as having taken place as a result of the referendum abovereferred to is
ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved
by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935.
More specifically, they maintain that the word "election" in the said Article has already acquired a definite accepted
meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no other form of
ratification can be considered contemplated by the framers of the Old Constitution than that which had been
followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervision of
the Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the
referendum because, according to them the referendum was a farce and its results were manufactured or
prefabricated, considering that Mr. Francisco Cruz, who is supposed to have submitted the final report to the
President, which served as basis for Proclamation 1102, had no official authority to render the same, and it is
inconceivable and humanly impossible for anyone to have been able to gather, tabulate and canvass the 15
million votes allegedly reported within the short period of time employed. Of course, they also contend that in any
event, there was no proper submission because martial law per se creates constructive duress which deprives the
voters of the complete freedom needed for the exercise of their right of choice and actually, there was neither
time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter raised in
the petitions is a political one which the courts are not supposed to inquire into, and, anyway, there has been a
substantial compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of
form, the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New
Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite Cases,
I already made the observation that in view of the lack of solemnity and regularity in the voting as well as in the
manner of reporting and canvassing conducted in connection with the referendum, I cannot say that Article XV of
the Old Constitution has been complied with, albeit I held that nonetheless, the Constitution of 1973 is already in
force. In order, however, to make myself clearer on some relevant points, I would like to add a few considerations
to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face of the Presidential
certification through Proclamation 1102 itself that the New Constitution has been approved by a majority of the
people and having in mind facts of general knowledge which I have judicial notice of, I am in no position to deny
that the result of the referendum was as the President had stated. I can believe that the figures referred to in the
proclamation may not accurate, but I cannot say in conscience that all of them are manufactured or prefabricated,
simply because I saw with own eyes that people did actually gather and listen discussions, if brief and inadequate
for those who are abreast of current events and general occurrences, and that they did vote. I believe I can safely
say that what I have seen have also been seen by many others throughout the country and unless it can be
assumed, which honestly, I do not believe to be possible, that in fact there were actually no meetings held and no
voting done in more places than those wherein there were such meetings and votings, I am not prepared to
discredit entirely the declaration that there was voting and that the majority of the votes were in favor of the New
Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my
estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens Assemblies was to
be in the nature merely of a loose consultation and not an outright submission for purposes of ratification. I can
see that at the outset, when the first set of questions was released, such may have been the idea. It must not be
lost sight of, however, that if the newspaper reports are to be believed, and I say this only because petitioners
would consider the newspapers as the official gazettes of the administration, the last set of six questions were
included precisely because the reaction to the idea of mere consultation was that the people wanted greater
direct participation, thru the Citizens Assemblies, in decisionmaking regarding matters of vital national interest.
Thus, looking at things more understandingly and realistically the two questions emphasized by counsel, namely,
(1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new
Constitution? should be considered no longer as loose consultations but as direct inquiries about the desire of the
voters regarding the matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of the
new Constitution, the logical consequence would have been the complete abandonment of the idea of holding any
plebiscite at all. On the other hand, it is very plain to see that since the majority has already approved the new
Constitution, a plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought
that if the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding the nonholding
of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new Constitution.
Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it turned out,
the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made of the point that
as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus — Do you approve the New Constitution? The
contention would have been weighty were it not unrealistic. I remember distinctly that the observation regarding
the construction of the subject question was not originally made by any of the talented counsels for petitioners. It
came from Mr. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy
of even professors of English. None of the other members of the Court, as far as I can recall, ever noticed how
the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention.
What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court
understood the said question otherwise than calling for a factual answer instead of a mere opinion, how could
anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought
out by Justice Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis.
Besides, reading the question in the light of the accompanying "comment" corresponding to it in particular, I am
certain that any one who answered the same understood it in no other sense than a direct inquiry as to whether
or not, as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be taken as a
categorical vote of approval thereof, considering, particularly, that according to the reported result of the
referendum said answer was even coupled with the request that the President defer the convening of the Interim
National Assembly.
It is also contended that because of this reference in answer to that question to the deferment of the convening of
the interim assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of
ratification plebiscite. The contention has no basis. In interest of accuracy, the additional answer proposed in
pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc." On the
assumption that the actual answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a
condition. At most, the intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was declared, the circumstances
surrounding making of the Constitution acquired a different and more meaningful aspect, namely, the formation of
a new society. From the point of view of the President and on the basis of intelligence reports available to him, the
only way to meet situation created by the subversive elements was to introduce immediately effective reforms
calculated to redeem the people from the depth of retrogression and stagnation caused by rampant graft and
corruption in high places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the so inequalities widening the gap between the rich and the poor, and many
other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of rebellious
movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a
constitution was to be approved as an effective instrument towards the eradication of such grave problems, it had
to be approved without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have
in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the context of
actualities, the evident objective in having a new constitution is to establish new directions in the pursuit of the
national aspirations and the carrying out of national policies. Only by bearing these considerations in mind can the
"comments" already referred to be properly appreciated. To others said "comments" may appear as evidence of
corruption of the will of those who attended the assemblies, but actually, they may also be viewed in the same
light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se
means of coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas
are not generally possible, nor practical, considering the need for faster decisions and more resolute action. After
all voting on a whole new constitution is different from voting on one, two or three specific proposed amendments,
the former calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily,
one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only because of a
few specific objectionable features, no matter how substantial, considering the ever present possibility that after
all it may be cured by subsequent amendment. Accordingly, there was need to indicate to the people the paths
open to them in their quest for the betterment of their conditions, and as long as it is not shown that those who did
not agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal
of the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow from the value that
the referendum would otherwise have had. As I intimated, however, in my former opinion, it is not fair to condemn
and disregard the result of the referendum barely because of martial law per se. For one thing, many of the
objectionable features of martial law have not actually materialized, if only because the implementation of martial
law since its inception has been generally characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style", which means without the rigor that has attended
it in other lands and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects on the area of information which should
be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercise of discretion is
suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and correctly
vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less
incomplete, but when he is subject to arrest and detention without investigation and without being informed of the
cause thereof, that is something else which may actually cause him to cast a captive vote. Thus it is the
suspension of the writ of habeas corpus accompanying martial law that can cause possible restraint on the
freedom choice in an election held during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that only those who run afoul the law, saving
inconsequential instances, have any cause for apprehension in regard to the conduct by them of the normal
activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas
corpus was under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping
victories, in defiance of the respective administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum may
considered as sufficient basis for declaring that the New Constitution has been ratified in accordance with the
amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I may, certain impression regarding the general
conditions obtaining during and in relation to the referendum which could have in one way or another affected the
exercise of the freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the end
that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by the people
of the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And on this
premise, my considered opinion is that the Court may no longer decide these cases on the basis of purely legal
considerations. Factors which are nonlegal but nevertheless ponderous and compelling cannot be ignored, for
their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there
was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit subject for inquiry by the courts. The
ruling in the decided cases relied upon by petitioners are to this effect. In view, however, of the factual
background of the cases at bar which include ratification itself, it is necessary for me to point out that when it
comes to ratification, I am persuaded that there should be a boundary beyond which the competence of the
courts no longer has any reason for being, because the other side is exclusively political territory reserved for
their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there is not
enough indication of such acceptance in the record and in the circumstances the Court can take judicial notice of.
For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I
have already stated, that the Citizens Assemblies did meet and vote, if irregularly and crudely, it is not for me to
resort, for the purposes of these cases, to judicial tape and measure, to find out with absolute precision the
veracity of the total number of votes actually cast. After all, the claims that upon a comparison of conflicting
reports, cases of excess votes may be found, even if extrapolated will not, as far as I can figure out, suffice to
overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidence before
Us which the parties did not care to really complete, I feel safer by referring to the results announced in the
proclamation itself. Giving substantial allowances for possible error and downright manipulation, it must not be
overlooked that, after all, their having been accepted and adopted by the President, based on official reports
submitted to him in due course of performance of duty of appropriate subordinate officials, elevated them to the
category of an act of a coordinate department of the government which under the principle separation of powers
is clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome by
better evidence, which in these cases does not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any
manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on
what has been officially declared. At this point, I would venture to express the feeling that if it were not generally
conceded that there has been sufficient showing of the acceptance in question by this time, there would have
been already demonstrative and significant indications of a rather widespread, if not organized resistance in one
form or another. Much as they are to be given due recognition as magnificent manifestations of loyalty and
devotion to principles, I cannot accord to the filing of these cases as indicative enough of the general attitude of
the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41 SCRA 702, I
made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to
be valid, must appear to have been made in strict conformity with the requirements of Article XV thereof. What is
more, that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a
justiciable matter. I still believe in the correctness of those views and I would even add that I sincerely feel it
reflects the spirit of the said constitutional provision. Without trying to strain any point however, I, submit the
following considerations in the context of the peculiar circumstances of the cases now at bar, which are entirely
different from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment of a particular provision of an
existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in the case I
have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said
Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new
Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this
Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new constitution
be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of
such other constitution? In fact, in the Tolentino case I already somehow hinted this point when I made reference
in the resolution denying the motion for reconsideration to the fact that Article XV must be followed "as long as
any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even added.
"(T)his is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the
Constitution or promulgate an entirely new one otherwise.".
It is not strange at all to think that the amending clause of a constitution should be confined in its application only
to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being
adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the
idea that in such an eventuality, the new Constitution would subject its going into effect to any provision of the
constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the
New Constitution. My understanding is that generally, constitutions are selfborn, they very rarely, if at all, come
into being, by virtue of any provision of another constitution. 3 This must be the reason why every constitution has
its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum
and provided for such a method to be used in the ratification of the New Constitution, I would have had serious
doubts as to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into
consideration the forces and the circumstances dictating the replacement. From the very nature of things, the
proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's resolute
determination to bring about a massive change of the existing order, a meaningful transformation of the old
society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any
question arise as to its effectivity and there is some reasonable indication that the new charter has already
received in one way or another the sanction of the people, I would hold that the better rule is for the courts to
defer to the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form
by which it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the
courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should
consider the matter nonjusticiable.
3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of
the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor
the House of Representatives has been reported to have even made any appreciable effort or attempt to convene
as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must
be assumed that being composed of experienced, knowledgeable and courageous members, it would not have
been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of
the handful of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I do
not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informed the court,
there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow
officially organize themselves in a way that can logically be considered as a session, even if nothing were done
than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough
members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with
particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to
issue any call to the members to convene, hence the present prayers for mandamus have no legal and factual
bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of
24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in
writing exercised the option given to them to join the Interim National Assembly under the New Constitution,
thereby manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of the government
under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution
and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold
back the political developments taking place and for the sake of being the guardian of the Constitution and the
defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly
chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of
such a gesture that concerns me. More than that, there is the stark reality that the Senators and the
Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as
the representatives of the people, they have already opted to accept the New Constitution as the more effective
instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our
desperately clinging by Ourselves alone to Our sworn duty visavis the 1935 Constitution. Conscious of the
declared objectives of the new dispensation and cognizant of the decisive steps being with the least loss of time,
towards their accomplishment, cannot but feel apprehensive that instead of serving the best interests of our
people, which to me is in reality the real meaning of our oath of office, the Court might be standing in the way of
the very thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my
conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and
Solomonic wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances,
principally the political, or, in brief, a decision more political than legal, which a court can render only by deferring
to the apparent judgment of the people and the announcement thereof by the political departments of the
government and declaring the matter nonjusticiable.
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, oftreferred 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 selfevident. More, it should be regarded as implied in every
constitution that regardless of the language of its amending clause, once the people have given their sanction to a
new charter, the latter may be deemed as constitutionally permissible even from the point of view of the preceding
constitution. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs.
Comelec, supra., would be well advised to bear in mind that the case was decided in the context of submission,
not accomplished ratification.
The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and
end all the nation. More important than even the Constitution itself with all its excellent features, are the people
living under it — their happiness, their posterity and their national destiny. There is nothing that cannot be
sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for national existence. The
sacred liberties and freedom enshrined in it and the commitment and consecration thereof to the forms of
democracy we have hitherto observed are mere integral parts of this totality; they are less important by
themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present petitions, the
Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts and
principles but also the qualified curtailment of individual liberties now being practiced, and this would amount, it is
feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is certainly something
one must gravely ponder upon. When I consider, however, that the President, the Vice President, the members of
both Houses of Congress, not to speak of all executive departments and bureaus under them as well as all the
lower courts, including the Court of Appeals have already accepted the New Constitution as an instrument of a
meaningful nationwidealllevel change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led
to wonder whether or not we, as members of the Supreme Court are being true to our duty to our people by
refusing to follow suit and accept the realities of the moment, despite our being convinced of the sincerity and
laudableness of their objectives, only because we feel that by the people's own act of ratifying the Constitution of
1935, they have so encased themselves within its provisions and may, therefore, no longer take measures to
redeem themselves from the situation brought about by the deficiencies of the old order, unless they act in strict
conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I consider it
a Godgiven attribute of the people to disengage themselves, if necessary, from any covenant that would obstruct
their taking what subsequently appears to them to be the better road to the promotion and protection of their
welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely, whether in
legal form or otherwise, certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Tañada and
Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel
mean that only by granting their petitions can this Court be worthily the bulwark of the people's faith in the
government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their
industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the
Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite
roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the
national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our
patriots of the recent generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them,
had their differences of views — and they did not hesitate to take diametrically opposing sides — that even
reached tragic proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any
particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution
binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the
people.
In this momentous juncture of our history, what is imperative is national unity. May God grant that the
controversies the events leading to these cases have entail will heal after the decision herein is promulgated, so
that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of
constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of
Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with
and strikes at, because it is decisive of, the validity of ratification and adoption of, as well as acquiescence of
people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And
being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in
Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights
vested under the new Constitution, to international commitments forged pursuant thereto and to decisions
rendered by the judicial as well as quasijudicial tribunals organized and functioning or whose jurisdiction has
been altered by the 1973 Constitution and the government established thereunder, and will dissipate any
confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as
exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders
issued in implementation of the same and cooperating with the administration in the renovation of our social,
economic and political system as restructured by the 1973 Constitution and by the implementing decrees and
orders (see Miller vs. Johnson, 18 SW 522, 522526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court, defined a political
question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the
government." (Tañada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments are submitted to the people for
ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested
in Congress or in a constitutional convention; while the power to ratify or reject such proposed amendments or
new Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102 would inevitably
render inoperative the 1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L
36164. Regardless of the modality of submission or ratification or adoption — even if it deviates from or violates
the procedure delineated therefore by the old Constitution — once the new Constitution is ratified, adopted and/or
acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is subsequently
adopted or recognized by the people and by the other official organs and functionaries of the government
established under such a new Constitution, this Court is precluded from inquiring into the validity of such
ratification, adoption or acquiescence and of the consequent effectivity of the new Constitution. This is as it should
be in a democracy, for the people are the repository of all sovereign powers as well as the source of all
governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly
restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus:
"Sovereignty resides in the people and all government authority emanates from them."
The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence by the
people cures any infirmity in its submission or any other irregularities therein which are deemed mandatory before
submission as they are considered merely directory after such ratification or adoption or acquiescence by the
people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and later Associate Justice of the Federal
Supreme Court, stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two
important, vital elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are
mere machineries and forms. They may not be disregarded, because by them certainty as to the essentials is
secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 6164, 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 threefourths 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. (L28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs.
Comelec, et al. (L34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance — that the
courts may review the propriety of a submission of a proposed constitutional amendment before the ratification or
adoption of such proposed amendment by the sovereign people, hardly applies to the cases at bar; because the
issue involved in the aforesaid cases refers to only the propriety of the submission of a proposed constitutional
amendment to the people for ratification, unlike the present petitions, which challenge inevitably the validity of the
1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. As heretofore
stated, it is specious and pure sophistry to advance the reasoning that the present petitions pray only for the
nullification of the 1973 Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in
the general grant of legislative powers to Congress. It is part of the inherent powers of the people —
as the repository of sovereignty in a republican state, such as ours — to make, and hence, to amend
their own Fundamental Law. Congress may propose amendments to the same explicitly grants such
power. Hence, when exercising the same, it is said that Senators and Members of the House of
Representatives act, not as members, but as component elements of a constituent assembly. When
acting as such, the members of Congress derive their authority from the Constitution, unlike the
people, when performing the same function, for their authority does not emanate from the
Constitution — they are the very source of all powers of government, including the Constitution itself.
(21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both the
proposal to amend and the ratification of such a constitutional amendment are political in nature forming as they
do the essential parts of one political scheme — the amending process. WE merely stated therein that the force of
the ruling in the said case of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus, We
pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue submitted thereto as a
political one, declined to pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution — which was being submitted to the
people for ratification — satisfied the three fourths vote requirement of the fundamental law. The
force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate,
Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we
held the officers and employees of the Senate Electoral Tribunal are supervision and control, not of
that of the Senate President, claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the Senate; in the third we nullified the election,
by Senators belonging to the party having the largest number of votes in said chamber purporting to
act on behalf of the party having the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in
the fourth, we declared unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of inhabitants of each province.
Thus we rejected the theory advanced in these four (4) cases, that the issues therein raised were
political questions the determination of which is beyond judicial review. (21 SCRA pp. 785786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before acting as a constituent assembly
— violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial
review, and to the extent that this view may be inconsistent with the stand taken in Mabanag vs.
Lopez Vito, the latter should be deemed modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence by the
people in the 1973 Constitution, remains a political issue removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the
submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the legality or illegality, constitutionality or
unconstitutionality of an act: it inquires into the existence of power or lack of it. Judicial wisdom is not to be pitted
against the wisdom of the political department of the government.
The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new
Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13)
original states of the American Union — which succeeded in liberating themselves from England after the
revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the
surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p.
776) — adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and
ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of the
Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention "for the
sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Modern Library
ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and
Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every state, and the union shall be
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united states, and be afterwards confirmed by the
legislatures of every state. (See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584;
emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration
for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful
the said Federal Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention
adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the
Constitution should be submitted to elected state conventions and if ratified by the conventions in nine (9) states,
not necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have been a counsel of perfection to consign the new constitution to the tender mercies of
the legislatures of each and all of the 13 states. Experience clearly indicated that ratification then
would have had the same chance as the scriptural camel passing through the eye of a needle. It was
therefore determined to recommend to Congress that the new Constitution be submitted to
conventions in the several states especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified by nine of the thirteen states ... .
(The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viiiix; emphasis
supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be Antifederalist,
provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting
that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into
effect as soon as nine states ratified. The convention method had the further advantage that judges,
ministers, and others ineligible to state legislatures, could be elected to a convention. The ninestate
provision was, of course, mildly revolutionary. But the Congress of the Confederation, still sitting in
New York to carry on federal government until relieved, formally submitted the new constitution to the
states and politely faded out before the first presidential inauguration. (The Oxford History of the Am.
People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four states on
May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state
legislatures as required by Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in
spite of the fact that the Federal Constitution as originally adopted suffers from two basic infirmities, namely, the
absence of a bill of Rights and of a provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution.
The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American Constitution,
nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326330), which enunciated the principle that
the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the
people, but on the fact or fiat or approval or adoption or acquiescence by the people which fact of ratification or
adoption or acquiescence is all that is essential, the Court cited precisely the case of the irregular revision and
ratification by state conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has been called to our attention,
and we have found none. We think that the principle which we apply in the instant case was very
clearly applied in the creation of the constitution of the United States. The convention created by a
resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of
confederation. This they did not do, but submitted to the sovereign power, the people, a new
constitution. In this manner was the constitution of the United States submitted to the people and it
became operative as the organic law of this nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution of the
United States, has this to say: "The convention proceeded to do, and did accomplish, what they were
not authorized to do by a resolution of Congress that called them together. That resolution plainly
contemplated amendments to the articles of confederation, to be submitted to and passed by the
Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced that any amendments were
powerless to effect a cure; that the disease was too deeply seated to be reached such tentative
means. They saw that the system they were called to improve must be totally abandoned, and that
the national idea must be reestablished at the center of their political society. It was objected by
some members, that they had no power, no authority, to construct a new government. They had no
authority, if their decisions were to be final; and no authority whatsoever, under the articles of
confederation, to adopt the course they did. But they knew that their labors were only to be
suggestions; and that they as well as any private individuals, and any private individuals as well as
they, had a right to propose a plan of government to the people for their adoption. They were, in fact,
a mere assemblage of private citizens, and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people might have done the
same with a constitution submitted to them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the
people, can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by implication a limitation upon
the sovereign. This would be an authorized exercise of sovereign power by the court. In State v.
Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a State may form an original
constitution, or abrogate an old one and form a new one, at any time, without any political restriction
except the constitution of the United States; ... ." (37 SE 327328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold
that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any
means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor
vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution
of 1902, having been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition, must be regarded as an
existing Constitution irrespective of the question as to whether or not the convention which
promulgated it had authority so to do without submitting it to a vote of the people. In Brittle v. People,
2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which
were added by the Legislature at the requirement of Congress, though never submitted to the people
for their approval." (97 NW 349350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the
American Constitution, in spite of the fact that such ratification was in clear violation of the prescription on
alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G.R. No. L36165
dismissed this most significant historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a
revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual
Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any
decided case, but merely refers to the footnotes on the brief historic account of the United States Constitution on
p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270316 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. 270281). In
Chapter XX on "The Creative Period in Politics, 17851788," Professor Morison delineates the genesis of the
Federal Constitution, but does not refer to it even implicitly as revolutionary constitution (pp. 297316). However,
the Federal Constitution may be considered revolutionary from the view point of McIver if the term revolution is
understood in "its wider sense to embrace decisive changes in the character of government, even though they do
not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed.,
p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of
Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war
of independence was a revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of
the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their
independence and long after popular support for the government of the Confederation had stabilized was not a
product of a revolution. The Federal Constitution was a "creation of the brain and purpose of man" in an era of
peace. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor, the
Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the
Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation
is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and enforceability
of the 1973 Constitution and of the government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L36164). 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 reenunciated in 1912 in the case of Pacific States Telephone and
Telegraph Company vs. Oregon (223 U.S. 118, 133151, 56 L.ed. 377386). 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 restated:
In view of the importance of the subject, the apparent misapprehension on one side and seeming
misconception on the other, suggested by the argument as to the full significance of the previous
doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than
we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling
case — Luther v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it should be
decided that the character government had no legal existence during the period of time above
mentioned, — if it had been annulled by the adoption of the opposing government, — then the laws
passed by its legislature during that time were nullities; its taxes wrongfully collected, its salaries and
compensations to its officers illegally paid ; its public accounts improperly settled and the judgments
and sentences of its courts in civil and criminal cases null and void, and the officers who carried their
decisions into operation answerable as trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United States shall guarantee to
every state in the Union a republican form of government, and shall protect each of them against
invasion; and on the application of the Legislature or of the Executive (when the legislature cannot be
convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is established
one in a state. For, as the United State guarantee to each state a republican government, Congress
must necessarily decide what government is established in the state before it can determine whether
it is republican or not. And when the senators and representatives of a state are admitted into the
Councils of the Union, the authority of the government under which they were appointed, as well as
its republican character, is recognized by the proper constitutional authority. And its decision is
binding on every other department of the government, and could not be questioned in a judicial
tribunal. It is true that the contest in this case did not last long enough to bring the matter to this
issue; and as no senators or representatives were elected under the authority of the government of
which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right
to decide is placed there and not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude
by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing
of a contention made concerning the 14th Amendment, and coming to consider a proposition which
was necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it
was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee to every state in this Union a republican form of
government, and shall protect each of them against invasion; and on application of the legislature, or
the Executive (when the legislature cannot be convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged to the political department.
Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two
opposing governments of Rhode Island, namely, the charter government or the government
established by a voluntary convention, was the legitimate one, was a question for the determination
of the political department; and when that department had decided, the courts were bound to take
notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long since by this Court been, definitely
determined to be political and governmental, and embraced within the scope of the scope of the
powers conferred upon Congress, and not, therefore within the reach of judicial power, it follows that
the case presented is not within our jurisdiction, and the writ of error must therefore be, and it is,
dismissed for want of jurisdiction. (223 U.S. pp. 142151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority
therefor and without submitting the same to the people for ratification, becomes valid, when recognized, accepted
and acted upon the by Chief of State and other government functionaries, as well as by the people. In the 1903
case of Taylor vs. Commonwealth (44 SE 754755), the Court ruled:
The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is
that it was ordained and promulgated by the convention without being submitted for ratification or
rejection by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of the
people of the state to revise and amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the only valid Constitution of the state
by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in
its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained
by the convention which assembled in the city of Richmond on the 12th day of June 1901, as the
Constitution of Virginia; by the individual oaths of members to support it, and by its having been
engaged for nearly a year in legislating under it and putting its provisions into operation but the
judiciary in taking the oath prescribed thereby to support and by enforcing its provisions; and by the
people in their primary capacity by peacefully accepting it and acquiescing in it, registering as voters
under it to the extent of thousands through the state, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States. (p. 755).
The Court in the Taylor case abovementioned further said:
While constitutional procedure for adoption or proposal to amend the constitution must be duly
followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that
the Constitution was violated in submitting the proposal. ... Substance more than form must be
regarded in considering whether the complete constitutional system for submitting the proposal to
amend the constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in which a proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or
collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper
time, it is effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207,
126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or
adoption or acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42
SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and stated that: "The authorities are almost
uniform that this ratification of an unauthorized act by the people (and the people are the principal in this instance)
renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the
book of voters; it is enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899];
45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin
ruled that "irregularity in the procedure for the submission of the proposed constitutional amendment will not
defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court
pronounced that "the irregularity in failing to publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election was held or once in each of the 7day
periods immediately preceding the day of the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v. Ladner (131) SO
2nd 45 462), where they admitted irregularities or illegalities committed in the procedure for submission of the
proposed constitutional amendment to the people for ratification consisted of: "(a) the alleged failure of the county
election commissioners of the several counties to provide a sufficient number of ballot boxes 'secured by good
and substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be used in the holding of the special
election on the constitutional amendment, and (b) the alleged failure of the State Election Commissioners to
comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in
each of the 82 counties. The irregularities complained of, even if proved, were not such irregularities would have
invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the Constitutional Convention and during the
deliberations of the Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21,
1972, the salient reforms contained in the 1973 Constitution which have long been desired by the people, had
been thoroughly discussed in the various committees of the Constitutional Convention, on the floor of the
Convention itself, in civic forums and in all the media of information. Many of the decrees promulgated by the
Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in
Sec. 3(2) of Article XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for these
reforms and are not complying with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971 when the
opposition won six out of eight senatorial seats despite the suspension of the privileges of the writ of habeas
corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on
individual freedom as the proclamation of martial law. In both situations, there is no total blackout of human rights
and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the Legislative and
Executive branches of the government elected and/or appointed under the 1935 Constitution have either
recognized or are now functioning under the 1973 Constitution, aside from the fact of its ratification by the
sovereign people through the Citizens Assemblies. Ninetyfive (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 twentyfour (24) senators including
Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the
certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder3 to Consolidated
Rejoinder of petitioners in L36165). Only the five (5) petitioners in L36165 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 quasijudicial 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
Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all
election registrars to register 18year olds and above whether literates or not, who are qualified electors under the
1973 Constitution (see pars. 1A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government which is
enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as
the only possible exceptions, the rest of the citizenry are complying with decrees, orders and circulars issued by
the incumbent President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522:
If a set of men, not selected by the people according to the forms of law, were to formulate an
instrument and declare it the constitution, it would undoubtedly be the duty of the courts declare its
work a nullity. This would be revolution, and this the courts of the existing government must resist
until they are overturned by power, and a new government established. The convention, however,
was the offspring of law. The instrument which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It is a matter of current history that both
the executive and legislative branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore, one of a judicial character? It is
our undoubted duty, if a statute be unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very
different case. It may be said, however, that, for every violation of or noncompliance with the law,
there should be a remedy in the courts. This is not, however, always the case. For instance, the
power of a court as to the acts of the other departments of the government is not an absolute one,
but merely to determine whether they have kept within constitutional limits, it is a duty rather than a
power, The judiciary cannot compel a coequal department to perform a duty. It is responsible to the
people; but if it does act, then, when the question is properly presented, it is the duty of the court to
say whether it has conformed to the organic law. While the judiciary should protect the rights of the
people with great care and jealousy, because this is its duty, and also because, in times of great
popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep
the proper bounds of its power, as being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its colonial character as its
constitution, and no law existed providing for the making of a new one. In 1841 public meetings were
held, resulting in the election of a convention to form a new one, — to be submitted to a popular vote.
The convention framed one, submitted it to a vote, and declared it adopted. Elections were held for
state officers, who proceeded to organize a new government. The charter government did not
acquiesce in these proceedings, and finally declared the state under martial law. It called another
convention, which in 1843 formed a new constitution. Whether the charter government, or the one
established by the voluntary convention, was the legitimate one, was uniformly held by the courts of
the state not to be a judicial, but a political question; and the political department having recognized
the one, it was held to be the duty of the judiciary to follow its decision. The supreme court of the
United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the
federal court, yet in the argument approves it, and in substance says that where the political
department has decided such a matter the judiciary should abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the
convention, when it reassembled, had no power to make any material amendment, and that such as
were made are void by reason of the people having theretofore approved the instrument. Then, next,
this court must determine what amendments were material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might
differ as to what amendments are material, and the result would be confusion and anarchy. One
judge might say that all the amendments, material and immaterial, were void; another, that the
convention had then the implied power to correct palpable errors, and then the court might differ as
to what amendments are material. If the instrument as ratified by the people could not be corrected
or altered at all, or if the court must determine what changes were material, then the instrument, as
passed upon by the people or as fixed by the court would be lacking a promulgation by the
convention; and, if this be essential, then the question would arise, what constitution are we now
living under, and what is the organic law of the state? A suggestion of these matters shows what
endless confusion and harm to the state might and likely would arise. If, through error of opinion, the
convention exceeded its power, and the people are dissatisfied, they have ample remedy, without the
judiciary being asked to overstep the proper limits of its power. The instrument provides for
amendment and change. If a wrong has been done, it can, in the proper way in which it should be
remedied, is by the people acting as a body politic. It is not a question of whether merely an
amendment to a constitution, made without calling a convention, has been adopted, as required by
that constitution. If it provides how it is to be done, then, unless the manner be followed, the judiciary,
as the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa,
543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is
a case where a new constitution has been formed and promulgated according to the forms of law.
Great interests have already arisen under it; important rights exist by virtue of it; persons have been
convicted of the highest crime known to the law, according to its provisions; the political power of the
government has in many ways recognized it; and, under such circumstances, it is our duty to treat
and regard it as a valid constitution, and now the organic law of our commonwealth.
We need not consider the validity of the amendments made after the convention reassembled. If the
making of them was in excess of its powers, yet, as the entire instrument has been recognized as
valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the rights of the people, — who can and properly should remedy the matter, if not to their liking, — if
it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon the state.
(emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973
Constitution it would be exercising a veto power on the act of the sovereign people, of whom this Court is merely
an agent, which to say the least, would be anomalous. This Court cannot dictate to our principal, the sovereign
people, as to how the approval of the new Constitution should be manifested or expressed. The sovereign people
have spoken and we must abide by their decision, regardless of our notion as to what is the proper method of
giving assent to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmeña vs. Marcos
(Pres. Election Contest No. 3, Jan. 8, 1973), was reelected by the vote of over 5 million electors in 1969 for
another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not having a
similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of
government, must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively
reserved by the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for
popular ratification of their organic law. That would be incompatible with their sovereign character of which We are
reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for
ratification which they themselves define in their Constitution, cannot apply to a unitary state like the Republic of
the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United States, in order to
secure and preserve the existence of the Federal Republic of the United States against any radical innovation
initiated by the citizens of the fifty (50) different states of the American Union, which states may be jealous of the
powers of the Federal government presently granted by the American Constitution. This dangerous possibility
does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional
Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he
might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102
that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard
to a separate, coordinate and coequal 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 overriding reason to deny the same to the Chief of
State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without being
presumptuous, in the face of the certifications by the Office the Secretary of the Department of Local Government
and Community Development. (Annexes 1, to 1E, Annexes 2 to 2O to the compliance with manifestation filed by
the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the
records that contradicts, much less overthrow the results of the referendum as certified. Much less are We
justified in reversing the burden of proof — by shifting it from the petitioners to the respondents. Under the rules
on pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their claim that the
people did not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have
failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of reports
relayed to him from private sources which could be biased and hearsay, aside from the fact that such reports are
not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well
nigh solemn declaration which announces the highest act of the sovereign people — their imprimatur to the basic
Charter that shall govern their lives hereafter — may be for decades, if not for generations.
Petitioners decry that even 15year olds, ex convicts and illiterates were allowed to vote in the Citizens'
Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in Sections
1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino
citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists,
convicts or exconvicts. Without admitting that exconvicts voted in the referendum, about which no proof was
even offered, these sectors of our citizenry, whom petitioners seem to regard with contempt or decision and
whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and
the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of
age or above to express their conformity or non conformity to the proposed Constitution, because their stake
under the new Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these
citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or ignorance deserve more
solicitude from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years
up to below 21 years old, the exconvicts 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, exconvicts granted absolute pardon are qualified to vote. Not all exconvicts 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, exconvicts and imbeciles constitute a very negligible number in any locality or barrio, including the
localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of the
plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctness of Proclamation No.
1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there
was no official certification to the results of the same from the Department of Local Governments. But there was
such certification as per Annex 1 to 1A to the Notes submitted by the Solicitor General counsel for respondents
public officers. This should suffice to dispose of this point. Even in the absence of such certification, in much the
same way that in passing law, Congress or the legislative body is presumed to be in possession of the facts upon
which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 11211 citing
Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should
likewise be presumed that the President was in possession of the fact upon which Proclamation No. 1102 was
based. This presumption is further strengthened by the fact that the Department of Local Governments, the
Department National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the
President, which offices as his alter ego, are presumptively acting for and in behalf of the President and their acts
are valid until disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming majority vote
in the Citizens' Assemblies in favor of the new Constitution, is to charge the President with falsification, which is a
most grievous accusation. Under the, rules of pleadings and evidence, the petitioners have the burden of proof by
preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions, where
the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the
petitioner all assert the contrary? Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and jurisprudence to
acts of public officers whose category in the official hierarchy is very much lower than that of the Chief of State.
What reason is there to withhold such a presumption in favor of the President? Does the fact that the President
belong to the party in power and that four (4) of the five (5) senators who are petitioners in L36165 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 L36165 and four (4) of the seven (7) petitioners in L36164 were all participants in the
political drama of this country since 1946. They are witness to the frustrations of wellmeaning 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 L36165 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 thirtyfive (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 longawaited reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone
including herein petitioners to give the present leadership the opportunity to institute and carry out the needed
reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a limitation upon the
sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province
exclusively reserved to and by the sovereign people. This Court did not heed to the principle that the courts are
not the fountain of all remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as
against the judgment of the people on the basic instrument which affects their very lives. WE cannot determine
what is good for the people or ought to be their fundamental law. WE can only exercise the power delegated to Us
by the sovereign people, to apply and interpret the Constitution and the laws for the benefit of the people, not
against them nor to prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any
time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a
part of the government established pursuant thereto. Unlike in the Borden case, supra, where there was at least
another government claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it
had no established organ except Dorr who represented himself to be its head; in the cases at bar there is no
other government distinct from and maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel government duly
organized as such even only for domestic purposes, let alone a rebel government engaged in international
negotiations. As heretofore stated, both the executive branch and the legislative branch established under the
1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of January
17, 1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of
the Republic of the Philippines. Can this Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L36165 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. 778779, 1969 ed., pp. 654657),
briefly recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as
well as slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed
aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General of Maryland.
He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist
Party, which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson,
also a slave owner and landed aristocrat, who later appointed him first as Attorney General of the United States,
then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief
Justice John Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death
"went largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief
Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the Southern
States would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroes was
revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the American
Negro is not entitled to the rights of an American citizen and that his status as a slave is determined by his
returning to a slave state. One can therefore discern his hostility towards President Lincoln when he decided Ex
parte Merryman, which animosity to say the least does no befit a judicial mind. Such a man could hardly be
spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes should not be
expressed indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L36165 appears to have committed another historical error, which may be due to his
rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732733), 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 copetitioner in L36164 did not address likewise his challenge
to the five (5) senators who are petitioners in L36165 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 L36165 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 L36165 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 fencesitters. 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 L36165 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.
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES
STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to whether
a constitutional amendment or the revised or new Constitution has been validly submitted to the people for
ratification in accordance with the procedure prescribed by the existing Constitution, is a justiciable question,
accord all presumption of validity to the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in the new Constitution or amendment,
although there was an illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935
[1934], Hammond vs. Clark, 71 SE 482483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34;
Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68
NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs.
State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts
stressed that the constitutional amendment or the new Constitution should not be condemned "unless our
judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506,
207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality
must persist in the absence of factual foundation of record to overthrow such presumption (ErmitaMalate Hotel,
etc. vs. City Mayor, L24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — COEQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE AND
JUDICIARY.
The Constitutional Convention is coordinate and coequal with, as well as independent of, the three grand
departments of the Government, namely, the legislative, the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three
departments as to the content as well as the form of the Charter that it proposes. It enjoys the same immunity
from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including
the printing of its own journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9;
Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the
purpose of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention has
the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention such
prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An
unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional
Convention to the people for ratification, much less appropriate the necessary funds therefor. That could have
been the fate of the 1973 Constitution, because the same abolished the Senate by creating a unicameral National
Assembly to be presided by a Prime Minister who wields both legislative and executive powers and is the actual
Chief Executive, for the President contemplated in the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the present
Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitution
shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2
of the same Article XVIII secures to the members of Congress membership in the interim National Assembly as
long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution, affords
them little comfort; because the convening of the interim National Assembly depends upon the incumbent
President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of
Congress, who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and
appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its independence and
effectiveness, possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in estimation of the Convention can better
determine appropriate time for such a referendum as well as the amount necessary to effect the same; for which
reason the Convention thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution
No. 5843 adopted on November 16, 1972, proposed to the President "that a decree be issued calling a plebiscite
for the ratification of the proposed new Constitution such appropriate date as he shall determine and providing for
the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional Convention
expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the national and local leaders desire that there be
continuity in the immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules
and regulations to implement the law, this authority to delegate implementing rules should not be denied to the
Constitutional Convention, a coequal 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 ordinancemaking 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 rearranging or readjusting any district, division or part of the Philippines "or disposing of issues of
general concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities including the
barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on
whether there was further need of a plebiscite thereon, — both issues of national concern — is still within the
delegated authority reposed in him by the Constitutional Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that the
plebiscite must be conducted by the Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional Convention in making the delegation, it
could have easily included the necessary phrase for the purpose, some such phrase like "to call a plebiscite to be
supervised by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code
(or with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the
President the determination of the manner by which the plebiscite should be conducted, who shall supervise the
plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly states "that
copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the
Commission on Elections for implementation," did not in effect designate the Commission on Elections as
supervisor of the plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at
best serve merely to notify the Commission on Elections about said resolution, but not to direct said body to
supervise the plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President,
who, because he is in possession of all the facts funnelled to him by his intelligence services, was in the superior
position to decide when the plebiscite shall be held, how it shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the
validity of, or validated Presidential Proclamation No. 1081 placing the entire country under martial law by
resolving to "propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use
of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that
form and nomenclature by the President as the Commander in Chief and enforcer of martial law. Consequently,
the issuance by the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such
delegated authority.
Such delegation, unlike the delegation by Congress of the rulemaking power to the Chief Executive or to any of
his subalterns, does not need sufficient standards to circumscribe the exercise of the power delegated, and is
beyond the competence of this Court to nullify. But even if adequate criteria should be required, the same are
contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
proposed new Constitution for the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution
has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite
Cases, stated:
... Once this work of drafting has been completed, it could itself direct the submission to the people
for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress
not being in session, could the President, by the decree under question, call for such a plebiscite?
Under such circumstances, a negative answer certainly could result in the work of the Convention
being rendered nugatory. The view has been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence the task of submission becomes ministerial,
with the political branches devoid of any discretion as to the holding of an election for that purpose.
Nor is the appropriation by him of the amount necessary to be considered as offensive to the
Constitution. If it were done by him in his capacity as President, such an objection would indeed have
been formidable, not to say insurmountable. If the appropriation were made in his capacity as agent
of the Convention to assure that there be submission to the people, then such an argument loses
force. The Convention itself could have done so. It is understandable why it should be thus. If it were
otherwise, then a legislative body, the appropriating arm of the government, could conceivably make
use of such authority to compel the Convention to submit to its wishes, on pain of being rendered
financially distraught. The President then, if performing his role as its agent, could be held as not
devoid of such competence. (pp. 23, concurring opinion of J. Fernando in L35925, etc., emphasis
supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the
hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray,
104 SO, 2d 841; 7th Dec. pp. 212219, 19561966).
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. xxxxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra vires or
beyond the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and
including such provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article
XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses may produce, and particularly describing the
place to be searched, and the persons or things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter into international treaties or agreements as the
national welfare and interest may require." (Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof, including governmentowned 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 (L35925, L35929, L35940, L35942, L35948, L35953, L35961, L35965, & L35979),
Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled
this objection, thus:
... Regardless of the wisdom and moral aspects of the contested provisions of the
proposed Constitution, it is my considered view that the Convention was legally deemed
fit to propose — save perhaps what is or may be insistent with what is now known,
particularly in international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people — although insofar only as
the determination of the proposals to be made and formulated by said body is
concerned — but also, because said proposals cannot be valid as part of our
Fundamental Law unless and until "approved by the majority of the votes cast at an
election which" said proposals "are submitted to the people for their ratification," as
provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 1718, Decision in L
35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L32476, Oct. 20, 1970, 35 SCRA 367) that the
Constitutional Convention has the authority to "entirely overhaul the present Constitution and propose an entirely
new Constitution based on an ideology foreign to the democratic system ...; because the same will be submitted
to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of
the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the Del
Rosario case, supra, and added: "... it seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60
Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911];
Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich.
338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the people
elected the delegates to the Convention and when the delegates themselves were campaigning, such limitation of
the scope of their function and objective was not in their minds."
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially
promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of
the 1973 Constitution. This claim is without merit because their Annex "M" is the Filipino version of the 1973
Constitution, like the English version, contains the certification by President Diosdado Macapagal of the
Constitutional Convention, duly attested by its Secretary, that the proposed Constitution, approved on second
reading on the 27th day of November, 1972 and on third reading in the Convention's 291st plenary session on
November 29, 1972 and accordingly signed on November 1972 by the delegates whose signatures are
thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as
President of the Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the
petitioners in L36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted
to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election called by Congress at which the
amendments are submitted for ratification by the qualified electors defined in Article V hereof, supervised by the
Commission on Elections in accordance with the existing election law and after such amendments shall have
been published in all the newspapers of general circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which
imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of the
1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess — through some
kind of escamotage. This Court should not commit such a grave error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of substantial compliance
with the procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new
Constitution, the procedure prescribed by the state Constitution is so detailed that it specifies that the submission
should be at a general or special election, or at the election for members of the State legislature only or of all
state officials only or of local officials only, or of both state and local officials; fixes the date of the election or
plebiscite limits the submission to only electors or qualified electors; prescribes the publication of the proposed
amendment or a new Constitution for a specific period prior to the election or plebiscite; and designates the officer
to conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which should so
state the substance of the proposed amendments to enable the voter to vote on each amendment separately or
authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details
thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861];
Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857];
Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature
in the manner following: The proposed amendments shall be read in the house in which they
originate on three several days, and, if upon the third reading, threefifths 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, threefifths
of all the members elected that house shall vote in favor of the proposed amendments, the
legislature shall order an election by the qualified electors of the state upon such proposed
amendments, to be held either at the general election next succeeding the session of the legislature
at which the amendments are proposed or upon another day appointed by the legislature, not less
than three months after the final adjournment of the session of the legislature at which the
amendments were proposed. Notice of such election, together with the proposed amendments, shall
be given by proclamation of the governor, which shall be published in every county in such manner
as the legislature shall direct, for at least eight successive weeks next preceding the day appointed
for such election. On the day so appointed an election shall be held for the vote of the qualified
electors of the state upon the proposed amendments. If such election be held on the day of the
general election, the officers of such general election shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be held on a day other than that of a general election,
officers for such election shall be appointed; and the election shall be held in all things in accordance
with the law governing general elections. In all elections upon such proposed amendments, the votes
cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state,
and counted, in the same manner as in elections for representatives to the legislature; and if it shall
thereupon appear that a majority of the qualified electors who voted at such election upon the
proposed amendments voted in favor of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such election shall be made known by
proclamation of the governor. Representation in the legislature shall be based upon population, and
such basis of representation shall not be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section
284 of this Constitution, the substance or subject matter of each proposed amendment shall be so
printed that the nature thereof shall be clearly indicated. Following each proposed amendment on the
ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". The
choice of the elector shall be indicated by a cross mark made by him or under his direction, opposite
the word expressing his desire, and no amendment shall be adopted unless it receives the
affirmative vote of a majority of all the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session
thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of
all the members, elected to each house, such proposed amendments shall be entered on the journal
with the yeas and nays, and published in at least one newspaper in each county, where a newspaper
is published, for six months immediately preceding the next general election for Senators and
Representatives, at which time the same shall be submitted to the electors of the State for approval
or rejection, and if a majority of the electors voting at such election adopt such amendments, the
same shall become a part of this Constitution; but no more than three amendments shall be
proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote
on each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this
constitution may be made by either branch of the legislature; and if two thirds of all the members
elected to each house shall concur therein, such proposed amendments, together with the yeas and
nays, shall be entered on the journal; and the secretary of state shall cause the same to be published
in at least one newspaper in each county of the state where a newspaper is published, for three
months preceding the next election for representatives, at which time, the same shall be submitted to
the electors, for their approval or rejection; and if a majority of the electors voting on said
amendments, at said election, shall adopt the amendments, the same shall become a part of the
constitution. When more than one amendment shall be submitted at the same time, they shall be so
submitted as to enable the electors to vote on each amendments separately; and not more than
three propositions to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation.
The General Assembly may propose Amendments to this Constitution; provided that each
Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will
stand when amended and passed by three fifths of all the members elected to each of the two
Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or
bills proposing amendment or amendments shall be published by order of the Governor, in at least
two newspapers, in each County, where so many may be published, and where not more than one
may be published, then in the newspaper, and in three newspapers published in the City of
Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at
which the proposed amendment or amendments shall be submitted, in a form to be prescribed by
the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for
and against said proposed amendment or amendments, severally, shall be returned to the Governor,
in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the
votes cast at said election on said amendment or amendments, severally, were cast in favor thereof,
the Governor shall, by his proclamation, declare the said amendment or amendments having
received said majority of votes, to have been adopted by the people of Maryland as part of the
Constitution thereof, and henceforth said amendment or amendments shall be part of the said
Constitution. When two or more amendments shall be submitted in the manner aforesaid, to the
voters of this State at the same election, they shall be so submitted as that each amendment shall be
voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All
amendments proposed by the general assembly or by the initiative shall be submitted to the electors
for their approval or rejection by official ballot title as may be provided by law, on a separate ballot
without party designation, at the next general election, or at a special election called by the governor
prior thereto, at which he may submit any of the amendments. No such proposed amendment shall
contain more than one amended and revised article of this constitution, or one new article which shall
not contain more than one subject and matters properly connected therewith. If possible, each
proposed amendment shall be published once a week for two consecutive weeks in two newspapers
of different political faith in each county, the last publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but one newspaper in any county, publication of
four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any
amendment, the same shall take effect at the end of thirty days after the election. More than one
amendment at the same election shall be so submitted as to enable the electors to vote on each
amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure for
submission or ratification. As heretofore stated, it does not specify what kind of election at which the new
Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the plebiscite.
Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much
less does it require the publication of the proposed Constitution for any specific period before the plebiscite nor
does it even insinuate that the plebiscite should be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the
people for ratification. It does not make any reference to the Commission on Elections as the body that shall
supervise the plebiscite. And Article XV could not make any reference to the Commission on Elections because
the original 1935 Constitution as ratified on May 14, 1935 by the people did not contain Article X on the
Commission on Elections, which article was included therein pursuant to an amendment by that National
Assembly proposed only about five (5) years later — on April 11, 1940, ratified by the people on June 18, 1940 as
approved by the President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703,
713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935
Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the
one to supervise the plebiscite, because the Commission on Elections was not in existence then as was created
only by Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475476;
Sumulong vs. Commission, 170 Phil. 703, 708715; 73 Phil. 288, 290300; Tañada & Fernando, Constitution of
the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 1119).
Because before August, 1940 the Commission on Election was not yet in existence, the former Department of
Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the
1937 amendment on woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935
Constitution (TydingsKocialkowski Act of the U.S. Congress) and the three 1940 amendments on the
establishment of a bicameral Congress, the reelection of the President and the VicePresident, and the creation
of the Commission on Elections (ratified on June 18, 1940). The supervision of said plebiscites by the then
Department of Interior was not automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34,
49 and 517.
If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for
ratification of constitutional amendments or revision, it should have likewise proposed the corresponding
amendment to Article XV by providing therein that the plebiscite on amendments shall be supervised by the
Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted that only
the qualified voters under Article V of the 1935 Constitution should participate in the referendum on any
amendment or revision thereof, they could have provided the same in 1935 or in the 1940 amendment by just
adding a few words to Article XV by changing the last phrase to "submitted for ratification to the qualified electors
as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors
under Article V of the 1935 Constitution because the said term "people" as used in several provisions of the 1935
Constitution, does not have a uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all
Filipino citizens of all ages of both sexes. In Section 1 of Article II on the Declaration of Principles, the term
"people" in whom sovereignty resides and from whom all government authority emanates, can only refer also to
Filipino citizens of all ages and of both sexes. But in Section 5 of the same Article II on social justice, the term
"people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both
sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill
of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so expressly
as the case of the election of senators and congressmen. Section 2 Article VI expressly provides that the senators
"shall be chosen at large by the qualified electors of the Philippines as may provided by law." Section 5 of the
same Article VI specifically provides that congressmen shall "be elected by the qualified electors." The only
provision that seems to sustain the theory of petitioners that the term "people" in Article XV should refer to the
qualified electors as defined in Article V of the 1935 Constitution is the provision that the President and Vice
President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone
cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of Article VI,
which specifically prescribes that the senators and congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in detail
procedure of ratification of amendments to or revision of said Constitutions and expressly require ratification by
qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 193435 Constitutional
Convention satisfied that the amendment shall be submitted to qualified election for ratification. This proposal was
not accepted indicating that the 193435 Constitutional Convention did intend to limit the term "people" in Article
XV of the 1935 Constitution to qualified electors only. As above demonstrated, the 193435 Constitutional
Convention limits the use of the term "qualified electors" to elections of public officials. It did not want to tie the
hands of succeeding future constitutional conventions as to who should ratify the proposed amendment or
revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates
the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly and later by Congress, indicates that
there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on September 30, 1936, consists of 12
sections and, aside from providing that "there shall be held a plebiscite on Friday, April 30, 1937, on the question
of woman's suffrage ... and that said amendment shall be published in the Official Gazette in English and Spanish
for three consecutive issues at least fifteen (15) days prior to said election, ... and shall be posted in a
conspicuous place in its municipal and provincial office building and in its polling place not later than April 22,
1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding of a
special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3,
Com. Act No. 34)1; and, that the votes cast according to the returns of the board of inspectors shall be counted
by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly
applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73
calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the amendment
creating the Commission on Elections, specifically provided that the provisions of the existing election law shall
apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as
well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed
amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections
and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on September 15,
1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the amendments to said Constitution proposed in
"Res. No. 38, adopted on the same date, shall be submitted at following election of local officials," (Sec. 1, Com.
Act No. 492) that the said amendments shall be published in English and Spanish in three consecutive issues of
the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted not later than
October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the
Election Code insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the
National Assembly shall request the President to call a special session of the Assembly for the purpose of
canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and provided, among
others: that the plebiscite on the constitutional amendments providing bicameral Congress, reelection of the
President and VicePresident, and the creation of a Commission on Elections shall be held at a general election
on June 18, 1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the Official
Gazette in English and Spanish at least 20 days prior to the election and posted in every local government office
building and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity
with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be
forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment consists of 8
sections provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general
election which shall be held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No.
73); that the said amendment shall be published in English and Spanish in three consecutive issues of the Official
Gazette at least 20 days prior to the election; that copies of the same shall be posted in a conspicuous place and
in every polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act
No. 357 (Election Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election,
the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results
thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate nor
envision the automatic application of the election law; and even at that, not all the provisions of the election law
were made applicable because the various laws aforecited contain several provisions which are inconsistent with
the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should be noted that the period for
the publication of the copies of the proposed amendments was about 10 days, 15 days or 20 days, and for
posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (See.
2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would be no
need for Congress to expressly provide therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the various
State Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified
electors can vote in the plebiscite. As aboveintimated, most of the Constitutions of the various states of the
United States provide for very detailed amending process and specify that only qualified electors can vote at such
plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was approved
on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to
include citizens who are at least 18 years of age, whether literate or not, provided they are also residents of the
barrio for at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are residents of
the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the
Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio
Secretary.
The barrio assembly shall meet at least once a year to hear the annual report of the barrio council
concerning the activities and finances of the barrio.
It shall meet also at the case of the barrio council or upon written petition of at least OneTenth 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 onefifth of the members of the barrio assembly be present to constitute a
quorum. All actions shall require a majority vote of these present at the meeting there being a
quorum.
Sec. 5. Powers of the barrio assembly. — The powers of the barrio assembly shall be as follows:
a. To recommend to the barrio council the adoption of measures for the welfare of the
barrio;
b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and special tax ordinances
submitted for its approval by the barrio council; and
d. To hear the annual report council concerning the activities and finances of the
assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty
days from its approval by either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be
taken by the voters, and such other information relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in regular election, and/or declaration by the voters to
the board of election tellers. The board of election tellers shall be the same board envisioned by
section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill the
same.
A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite
shall be called to approve any budgetary, supplemental appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. — Every citizen of the Philippines, twentyone 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 feebleminded persons.
All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at the plebiscite
on the recall of any member of the barrio council or on a budgetary, supplemental appropriation, or special
ordinances, a valid action on which requires "a majority vote of all of the barrio assembly members registered in
the list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a majority
vote of the members present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age, able to
read and write, residents of the barrio during the 6 months immediately preceding the election and duly registered
in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made ...
either in writing as in regular elections, and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote
may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L36165 that only those who are
21 years of age and above and who possess all other qualifications of a voter under Section 10 of R.A. No. 3590,
can vote on the plebiscites referred to in Section 6; because paragraph 3 of Section 6 does not expressly limit the
voting to those with the qualifications under Section 10 as said Section 6 does not distinguish between those who
are 21 or above on the one hand and those 18 or above but below 21 on the other, and whether literate or not, to
constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly can vote
as long as they are 18 years of age or above; and that only those who are 21 years of age or over and can read
and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years
of age, whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No.
2370, the old Barrio Charter, which provided that only those who are 21 and above can be members of the barrio
assembly.
Counsels Salonga and Tañada as well as all the petitioners in L36165 and two of the petitioners in L36164
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 18year
olds as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as
delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973
Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the same
was based on the certification by the Secretary of the Department of Local Government and Community
Development who tabulated the results of the referendum all over the country. The accuracy of such tabulation
and certification by the said Department Secretary should likewise be presumed; because it was done in the
regular performance of his official functions aside from the fact that the act of the Department Secretary, as an
alter ego of the President, is presumptively the act of the President himself unless the latter disapproves or
reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the
Department Secretary and the Chief Executive on the results of the referendum, is further strengthened by the
affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City
and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to the
ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for two consecutive terms for the President, and the 1947
parity amendment, cannot be invoked; because those amendments were proposed by the National Assembly as
expressly authorized by Article V of the 1935 Constitution respecting woman suffrage and as a constituent
assembly in all the other amendments aforementioned and therefore as such, Congress had also the authority to
prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as
heretofore discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution
to the people for ratification or delegate the same to the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as the
basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the
other provinces, cities and municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such
extrapolation would still constitute a majority of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L36165, against the certification of the Department of Local Government and
Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of
Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province,
there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1A 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 ViceGovernor 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 ViceGovernor Camerino (Annex 1Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he
caused the preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and
Community Development showing the results of the referendum in Pasay City; that on the same day, there were
still in any Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send the aforesaid
letter pending submittal of the other results from the said Citizens' Assemblies; and that in the afternoon of
January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City to the Office of
the President (Annex 5Rejoinder 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 CRejoinder 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 L36165). 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 3Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community
Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite"
addressed to the President of the Philippines through the Secretary of the Department of Local Government and
Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15,
1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the unsigned letters contain figures showing
the results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such documents received by her office (Annex 2
Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L36165 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 L36165, if they were extrapolated and applied to the other provinces and
cities of the country, the Yes votes would still be overwhelmingly greater than the No votes, applies equally to the
alleged discrepancy between the figures contained in the certification of the Secretary of the Department of Local
Government and Community Development and the figures furnished to counsel for petitioners in L36165
concerning the referendum in Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more votes in
favor of the plebiscite to be held later than those against, only serve to emphasize that there was freedom of
voting among the members of the Citizens' Assemblies all over the country during the referendum from January
10 to 15, 1973 (Annex6 Camarines Sur to Rejoinder of Petitioners in L36165). If there was no such freedom of
choice, those who wanted a plebiscite would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of
the new Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex
Camarines Sur to Rejoinder of Petitioners in L36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted
overwhelmingly in favor of the new Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on January 10. Provincial Governor
Pascual stated that "orderly conduct and favorable results of the referendum" were due not only to the
coordinated efforts and cooperation of all teachers and government employees in the area but also to the
enthusiastic participation by the people, showing "their preference and readiness to accept this new method of
government to people consultation in shaping up government policies." (AnnexBataan to Rejoinder of Petitioners
in L36165).
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 exconvicts 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 exconvicts 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 L36165 that
he can secure "the true and legitimate results of the referendum" from the Office of the President (Annex
CaloocanB to Rejoinder of Petitioners in L36165). Why did not learned and eminent counsel heed such
suggestion?
Counsel for petitioners in L36165, 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 L36165 (Annex Mas amended, to Consolidated Rejoinder of petitioners in L
36165 to the Notes of Arguments and Memorandum of respondents). Professor Salonga is not a qualified
statistician, which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of Census and
Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department of Local Government
and Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered voters and the 1520yearold
youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage
participation of the "1520 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 1015, 1973 was 16.702 million, participation rate will therefore be the
ratio of the latter figure to the former which gives 74.2%.
3) 1 cannot also understand c2 "Solution to Problem 11." The "difference or implied number of 1520
year olds" of 5,039,906 would represent really not only all 15year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at the time, assuming that all the
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participation of
1520 years olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of "1520 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 15year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio
would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between
16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the November 8,
1971 elections, is 5,040,091, which may include not only the 15year olds and above but below 21 but also the
qualified electors who were not registered before the November 8, 1971 elections as well as illiterates who are 15
years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent President obtained
over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a
majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8,
1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for the incumbent
President in 1969 did not vote in favor of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections,
have several members in their families and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should necessarily augment the number of votes who
voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of choice,
because the people fear to disagree with the President and CommanderinChief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973
Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in
the individual. Even without martial law, the penal, civil or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which persuades the individual to comply with or obey the law. But
before martial law was proclaimed, many individuals fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof — in brief, compartmentalized justice and extraneous pressures
and influences frustrated the firm and just enforcement of the laws. The fear that is generated by martial law is
merely the fear of immediate execution and swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed during the period of martial law. This is
not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution.
Those who cringe in fear are the criminals or the law violators. Surely, petitioners do not come under such
category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as
by the election laws. But the 1935 Constitution does not require secret voting. We search in vain for such
guarantee or prescription in said organic law. The Commission on Elections under the 1940 Amendment,
embodied as Article X is merely mandated to insure "free, orderly and honest election." Congress, under its
plenary lawmaking 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 L36236
(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 trimedia — the press, radio and
television. Printed materials on the proposed reforms were circulated by their proponents. From June, 1971 to
November 29, 1972, reforms were openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional Convention reconvened in October, 1972
until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored by
private organizations universities and debated over the radio and on television. The Philippines is a literate
country, second only to Japan in the Far East, and more literate perhaps than many of midwestern and southern
states of the American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country
have radios. Even the illiterates listened to radio broadcasts on and discussed the provisions of the 1973
Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin Today, March 4,
1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30
minute documentary on the Philippines for American television stated that what impressed him most in his travel
throughout the country was the general acceptance of the New Society by the people which he saw in his 6week
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 USPhilippine relations, states:
Martial law has paved the way for a reordering of the basic social structure of the Philippines.
President Marcos has been prompt and surefooted 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 reassured by recent
developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority of the
population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars
issued to implement the same. It should be recalled, as hereinbefore stated, that all these reforms were the
subject of discussion both in the committee hearings and on the floor of the Constitutional Convention, as well as
in public forums sponsored by concerned citizens or civic organizations at which ConCon delegates as well as
other knowledgeable personages expounded their views thereon and in all the media of information before the
proclamation of martial law on September 21, 1972. This is the reason why the Constitutional Convention, after
spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it expedient to
accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed
provisions of the 1973 Constitution were already expressed and circulated. The 1973 Constitution may contain
some unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the
wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting
Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the President as CommanderinChief is
vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil.
171, 177178) which reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 57172). The trial of General
Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of
the Philippines has acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his powers as
Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs.
Styver (L129, 42 Off. Gaz., 664) when we said —
"War is not ended simply because hostilities have ceased. After cessation of armed
hostilities, incidents of war may remain pending which should be disposed of as in time
of war. "An important incident to a conduct of war is the adoption measures by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to thwart or impede our
military effort have violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.)
Indeed, the power to create a military commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the language of a writer, a military
commission "has jurisdiction so long as the technical state of war continues. This
includes the period of an armistice, or military occupation, up to the effective date of
treaty of peace, and may extend beyond, by treaty agreement." (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as CommanderinChief 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. 177178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when, in his
concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of
the power which resides in the executive branch of the government to preserve order and insure the public safety
in times of emergency, when other branches of the government are unable to function, or their functioning would
itself threaten the public safety." (Emphasis supplied). There is an implied recognition in the aforesaid definition of
martial law that even in places where the courts can function, such operation of the courts may be affected by
martial law should their "functioning ... threaten the public safety." It is possible that the courts, in asserting their
authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels,
secessionists, dissidents as well as subversives, martial law may restrict such judicial function until the danger to
the security of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become an outright dictatorship, can
have no other purposes than the preservation of the independence of the state, the maintenance of
the existing constitutional order, and the defense of the political and social liberties of the people. It is
important to recognize the true and limited ends of any practical application of the principle of
constitutional dictatorship. Perhaps the matter may be most clearly stated in this way: the
government of a free state is proceeding on its way and meeting the usual problems of peace and
normal times within the limiting framework of its established constitutional order. The functions of
government are parceled out among a number of mutually independent offices and institutions; the
power to exercise those functions is circumscribed by wellestablished 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 worldwide depression
threatens to bring the nation's economy in ruins. The government meets the crisis by assuming more
powers and respecting fewer rights. The result is a regime which can act arbitrarily and even
dictatorially in the swift adaption of measures designed to save the state and its people from the
destructive effects of the particular crisis. And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and
restore normal times. The government assumes no power and abridges no right unless plainly
indispensable to that end; it extends no further in time than the attainment of that end; and it makes
no alteration in the political, social and economic structure of the nation which cannot be eradicated
with the restoration of normal times. In short, the aim of constitutional dictatorship is the complete
restoration of the status quo ante bellum. This historical fact does not comport with philosophical
theory, that there never has been a perfect constitutional dictatorship, is an assertion that can be
made without fear of contradiction. But this is true of all institutions of government, and the principle
of constitutional dictatorship remains eternally valid no matter how often and seriously it may have
been violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p. 7; emphasis
supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power,
whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should never be permanent
in character or effect. Emergency powers are strictly conditioned by their purpose and this purpose is
the restoration of normal conditions. The actions directed to this end should therefore be provisional.
For example, measures of a legislative nature which work a lasting change in the structure of the
state or constitute permanent derogations from existing law should not be adopted under an
emergency enabling act, at least not without the positively registered approval of the legislature.
Permanent laws, whether adopted in regular or irregular times, are for parliaments to enact. By this
same token, the decisions and sentences of extraordinary courts should be reviewed by the regular
courts after the termination of the crisis.
But what if a radical act of permanent character, one working lasting changes in the political and
social fabric, is indispensable to the successful prosecution of the particular constitutional
dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his
conservative purpose of preserving the Union; as a constitutional dictator he had a moral right to take
this radical action. Nevertheless, it is imperative that any action with such lasting effects should
eventually receive the positive approval of the people or of their representatives in the legislature. (P.
303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection
or economic depression or dislocation, the government exercises more powers and respects fewer rights in order
"to end the crisis and restore normal times." The government can assume additional powers indispensable to the
attainment of that end — the complete restoration of peace. In our particular case, eradication of the causes that
incited rebellion and subversion as secession, is the sine qua non to the complete restoration of normalcy.
Exercise of legislative power by the President as Commander in Chief, upon his proclamation of martial law, is
justified because, as he professes, it is directed towards the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of
the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86A as well as Proclamation No. 1102 is indispensable
to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak to maintain its
existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when without
express authority in the Constitution and the laws of the United States, he suspended one basic human freedom
— the privilege of the writ of habeas corpus — in order to preserve with permanence the American Union, the
Federal Constitution of the United States and all the civil liberties of the American people. This is the same
dilemma that presently confronts the Chief Executive of the Republic of the Philippines, who, more than the
Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and the rights
as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive
announced repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935
Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent revolution
and subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented secessionists of the extreme left who
demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the state
and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and
subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and control
the security and happiness of the living present. A contrary view would be to deny the selfevident proposition that
constitutions and laws are mere instruments for the wellbeing, peace, security and prosperity of the country and
its citizenry. The law as a means of social control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter,
the Constitution is neither a printed finality nor the imprisonment of the past, but the enfolding of the future. In the
vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be determined by merely
opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intended
to serve. Because experience may teach one generation to doubt the validity and efficacy of the concepts
embodied in the existing Constitution and persuade another generation to abandon them entirely, heed should be
paid to the wise counsel of some learned jurists that in the resolution of constitutional questions — like those
posed before Us — the blending of idealism and practical wisdom or progressive legal realism should be applied
(see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 1921). To Justice
Frankfurter, law is "a vital agency for human betterment" and constitutional law "is applied politics using the word
in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is capable of
growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and
social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell
emphasizes "practical wisdom," for "the logic of constitutional law is the common sense of the Supreme Court."
(Powell, the Validity of State Legislation, under the WebbKenyon Law, 2 Southern Law Quarterly, pp. 112, 138
139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change.
Living organisms as well as manmade 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 wellbeing. 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, readopted 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, Canutelike, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents
there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best
administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct
democracy, representative democracy, welfare states, socialist democracy, mitigated socialism, to outright
communism which degenerated in some countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his
ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods and techniques
when brought into the actual arena of conflict as a public functionary — face to face with the practical problems of
state, government and public administration. And so it is that some learned jurists, in the resolution of
constitutional issues that immediately affect the lives, liberties and fortunes of the citizens and the nation,
recommend the blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive
legal realism. The national leader, who wields the powers of government, must and has to innovate if he must
govern effectively to serve the supreme interests of the people. This is especially true in times of great crises
where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their wellbeing, 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 CommanderinChief of the Armed Forces to utilize
all the available techniques to suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American Constitution and
former President of the United States, who personifies the progressive liberal, spoke the truth when he said that
some men "ascribe men of the preceding age a wisdom more than human, and suppose what they did to be
beyond amendment. ... But I know also, that laws and institutions must go hand in hand with the progress of the
human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths
disclosed and manners and opinions change, with the change of circumstances, institutions must also advance,
and keep pace with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It cannot be
adequately and fairly appraised within the present ambience, charged as it is with so much tension and emotion, if
not partisan passion. The analytical, objective historians will write the final verdict in the same way that they
pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpus
without any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who
approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory.
President Lincoln not only emancipated the Negro slaves in America, but also saved the Federal Republic of the
United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the
American Constitution and Congress did not then expressly vest in him. No one can deny that the successful
defense and preservation of the territorial integrity of the United States was due in part, if not to a great extent, to
the proclamation of martial law over the territory of Hawaii — main bastion of the outer periphery or the outpost of
the American defense perimeter in the Pacific — which protected the United States mainland not only from actual
invasion but also from aerial or naval bombardment by the enemy. Parenthetically, the impartial observer cannot
accurately conclude that the American Supreme Court acted with courage in its decision in the cases of Ex parte
Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3,
1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the privilege
of the writ of habeas corpus, long after the Civil War and the Second World ended respectively on April 9 or 26,
1865 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases
against the position of the United States President — in suspending the privilege of the writ of habeas corpus in
one case and approving the proclamation of martial law in the other — deliberate as an act of judicial
statesmanship and recognition on their part that an adverse court ruling during the period of such a grave crisis
might jeopardize the survival of the Federal Republic of the United States in its lifeanddeath struggle against an
organized and well armed rebellion within its own borders and against a formidable enemy from without its
territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene the Senate
of the Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the
doctrine of separation of powers under the 1935 Constitution, the processes of this Court cannot legally reach a
coordinate branch of the government or its head. This is a problem that is addressed to the Senate itself for
resolution; for it is purely an internal problem of the Senate. If a majority of the senators can convene, they can
elect a new Senate President and a new Senate President Pro Tempore. But if they have no quorum, those
present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there
is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly
does not justify the invocation of the power of this Court to compel action on the part of a coequal 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 L36164 and L36165 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 coordinate 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 L36165, 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 L36165 — 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 fatherinlaw of petitioner Gerardo Roxas in L36165.
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 L36165 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 L36165 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 L36164 and L36236 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 CommanderinChief 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 coequal 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.
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal
hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are
anathema to a free spirit. But human rights and civil liberties under a democratic or republican state are never
absolute and never immune to restrictions essential to the common weal. A civilized society cannot long endure
without peace and order, the maintenance of which is the primary function of the government. Neither can
civilized society survive without the natural right to defend itself against all dangers that may destroy its life,
whether in the form of invasion from without or rebellion and subversion from within. This is the first law of nature
and ranks second to none in the hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established government, impliedly submits to
certain constraints on his freedom for the general welfare and the preservation of the State itself, even as he
reserves to himself certain rights which constitute limitations on the powers of government. But when there is an
inevitable clash between an exertion of governmental authority and the assertion of individual freedom, the
exercise of which freedom imperils the State and the civilized society to which the individual belongs, there can be
no alternative but to submit to the superior right of the government to defend and preserve the State. In the
language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to a decision involving its
(state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs.
Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing men in the actual clash of
arms. And we think it is obvious, although it was disputed, that the same is true of temporary detention to prevent
apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for all, that
should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program long before September
21, 1972, realized almost too late that he was being deceived by his partymates as well as by the opposition, who
promised him cooperation, which promises were either offered as a bargaining leverage to secure concessions
from him or to delay the institution of the needed reforms. The people have been victimized by such bargaining
and dillydallying. To vert a terrifying blood bath and the breakdown of the Republic, the incumbent President
proclaimed martial law to save the Republic from being overrun by communists, secessionists and rebels by
effecting the desired reforms in order to eradicate the evils that plague our society, which evils have been
employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the government.
By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners and their
counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes
and how many of them are being used in turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the populace, more than for
their own selves, they should be willing to give the incumbent Chief Executive a chance to implement the desired
reforms. The incumbent President assured the nation that he will govern within the framework of the Constitution
and if at any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to believe in his
leadership, he will step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses
and brutalizes the people, then to the battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides the tiger will eventually end inside the
tiger's stomach. He who toys with revolution will be swallowed by that same revolution. History is replete with
examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotined by
the very people whom they at first championed and later deceived. The most bloody of such mass executions by
the wrath of a wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the
leaders of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the
lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers from implementing the Constitution
signed on November 30, 1972; in L36165, to compel respondents Gil Puyat and Jose J. Roy, President and
President ProTempore, 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. 86A, issued on January 5, 1973, to
act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a Constitution after the declaration of
Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they
are highly unwise and objectionable and the people were not sufficiently informed about them.
3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new Constitution at
the referendum conducted in connection therewith, as said assemblies were merely for consultative purposes,
and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same were not
duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the
respondents for comment, with three members of the Court, including the undersigned, voting to dismiss them
outright. The comments were considered motions to dismiss which were set for hearing and extensively argued.
Thereafter both parties submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the competence of this Court to decide, or is it justiciable
and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed
by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore, not justiciable. I
maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not the question presented is political, joint
discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For after the acceptance
of a new Constitution and acquiescence therein by the people by putting it into practical operation, any question
regarding its validity should be foreclosed and all debates on whether it was duly or lawfully ushered into
existence as the organic law of the state become political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86
A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973,
and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86A, claiming that
the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree
No. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and
through these assemblies the proposed 1972 Constitution was submitted to the people for ratification.
Proclamation No. 1102 of the President announced or declared the result of the referendum or plebiscite
conducted through the Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the
new Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized
and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived, what is
sought to be invalidated is the new Constitution itself — the very framework of the present Government since
January 17, 1973. The reason is obvious. The Presidential decrees set up the means for the ratification and
acceptance of the new Constitution and Proclamation No. 1102 simply announced the result of the referendum or
plebiscite by the people through the Citizens Assemblies. The Government under the new Constitution has been
running on its tracks normally and apparently without obstruction in the form of organized resistance capable of
jeopardizing its existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be
set aside by this Court. But has it the power and authority to assume such a stupendous task when the result of
such invalidation would be to subject this nation to divisive controversies that may totally destroy the social order
which the Government under the new Constitution has been admirably protecting and promoting under Martial
Law? That the new Constitution has taken deep root and the people are happy and contended with it is a living
reality which the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of
Representatives have opted to serve in the interim National Assembly provided for under the new Constitution. 15
out of 24 Senators have done likewise. The members of the Congress did not meet anymore last January 22,
1973, not because they were really prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935 Constitution is
a thing of the past. The Executive Department has been fully reorganized; the appointments of key executive
officers including those of the Armed Forces were extended and they took an oath to support and defend the new
Constitution. The courts, except the Supreme Court by reason of these cases, have administered justice under
the new constitution. All government offices have dealt with the public and performed their functions according to
the new Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of
jurisdiction when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof
null and void? It is the height of absurdity and impudence for a court to wage open war against the organic act to
which it owes its existence. The situation in which this Court finds itself does not permit it to pass upon the
question whether or not the new Constitution has entered into force and has superseded the 1935 Constitution. If
it declares that the present Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still
the prevailing organic law. The result would be too anomalous to describe, for then this Court would have to
declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these cases
when it would have no other choice but to uphold the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial
determination, but one addressed to the sovereign power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the government of this Republic is now functioning. To
deny that the new Constitution has been accepted and actually is in operation would be flying in the face of
reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or simply
"kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at that, submission of
the people thereto by the organization of the government provided therein and observance of its prescriptions by
public officers chosen thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution
claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. Johnson, 92
Ky. 589; 189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207;
Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and promulgated according to the forms
of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have
been convicted of the highest crimes known to the law, according to its provisions; the political power
of the government has in many ways recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of our state. We need not consider
the validity of the amendments made after the convention reassembled. If the making of them was in
excess of its power, yet as the entire instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by the judiciary, and violative of the rights of the
people, — who can and properly should remedy the matter, if not to their liking, — if it were to
declare the instrument or a portion invalid, and bring confusion and anarchy upon the state.
(Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an inquiry when applied to a new
constitution, and not an amendment, because the judicial power presupposes an established
government, and if the authority of that government is annulled and overthrown, the power of its
courts is annulled with it; therefore, if a state court should enter upon such an inquiry, come to the
conclusion that the government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of pronouncing a judicial
decision upon the question before it; but, if it decides at all, it must necessarily affirm the existence of
the government under which it exercises its judicial powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established government capable of enacting laws and enforcing their
execution, and appointing judges to expound and administer them. The acceptance of the judicial
office is a recognition of the authority of government from which it is derived. And if the authority of
the government is annulled and overthrown, the power of its courts and other officers is annulled with
it. And if a State court should enter upon the inquiry proposed in this case, and should come to
conclusion that the government under which it acted had been put aside and displaced by an
opposing government it would cease to be a court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally conducted on the basis of the new
Constitution and no state with which we maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new Constitution, see pages 2225 of the
Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86A by this Court
would smack of plain political meddling which is described by the United States Supreme Court as "entering a
political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this
Court to adopt the proper attitude towards political upheavals and realize that the question before Us is political
and not fit for judicial determination. For a political question is one entrusted to the people for judgment in their
sovereign capacity (Tañada vs. Cuenco, G.R. No. L10520, Feb. 28,1967; 100 Phil. 1101), or to a coequal and
coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1;
Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political
question when there would be "the impossibility of undertaking independent resolutions without expressing a lack
of respect due to coordinate branches of government", or when there is "the potentiality of embarrassment from
multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the "Supreme
Law of the Land" in that vast range of legal problems often strongly entangled in popular feeling on which this
Court must pronounce", let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs.
Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse nor the sword — ultimately rests on
sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's
complete detachment, in fact and appearance, from political entanglements and abstention from
injecting itself into the clash of political forces in political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The new organic law
is now in the plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the
cynics will deny this. This Court should not in the least attempt to act as a superlegislature or a superboard of
canvassers and sow confusion and discord among our people by pontificating there was no valid ratification of the
new Constitution. The sober realization of its proper role and delicate function and its consciousness of the
limitations on its competence, especially situations like this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those who wish the Court to engage in their brand of
activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the
intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution proposed by the
Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by this Court on January 22, 19731, 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
make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971
Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitution was
not validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of this country, whether or not that proposed
Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that we have
mentioned because that issue is a political question that cannot be decided by this Court. This contention by the
Solicitor General is untenable. A political question relates to "those questions which under the Constitution are to
be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been
delegated to the legislative, or to the executive, branch of the government.2 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.3 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 judiciary is the department which is charged with the special duty of determining
the limitations which the law places upon all official actions4 . In the case of Gonzales v. Commission on
Elections5, 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 v. Cuenco6, 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 provision of the constitution. And so, it has been held that the question of whether a
constitution shall be amended or not is a political question which is not in the power of the court to decide, but
whether or not the constitution has been legally amended is a justiciable question.7
My study on the subject of whether a question before the court is political or judicial, based on decisions of the
courts in the United States — where, after all, our constitutional system has been patterned to a large extent —
made me arrive at the considered view that it is in the power of this Court, as the ultimate interpreter of the
Constitution, to determine the validity of the proposal, the submission, and the ratification of any change in the
Constitution. Ratification or nonratification of a constitutional amendment is a vital element in the procedure to
amend the constitution, and I believe that the Court can inquire into, and decide on, the question of whether or
not an amendment to the constitution, as in the present cases, has been ratified in accordance with the
requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly
ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us
involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in these cases
is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been
validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
"Section 1. The Congress in joint session assembled by a vote of three fourths of all the
Members of the Senate and of the House of Representatives voting separately, may
propose amendments to the Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification."
It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by the Convention shall be valid and considered
part of the Constitution when approved by a majority of the votes cast in an election at
which they are submitted to the people for their ratification pursuant to Article XV of the
Constitution.
It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for the ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L35140, October 16, 1971 (41 SCRA
715), speaking through Mr. Justice Barredo, said:
"The Constitutional Convention of 1971, as any other convention of the same nature,
owes its existence and all its authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the people directly as in the case of
a revolutionary convention which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother country or of revolution
against an existing government or of a bloodless seizure of power a la coup d'etat. As to
such kind of conventions, it is absolutely true that the convention is completely without
restraint and omnipotent all wise, and it as to such conventions that the remarks of
Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator
Pelaez refer. No amount of rationalization can belie the fact that the current convention
came into being only because it was called by a resolution of a joint session of Congress
acting as a constituent assembly by authority of Section 1, Article XV of the present
Constitution ... ."
xxx xxx xxx
"As to matters not related to its internal operation and the performance of its assigned
mission to propose amendments to the Constitution, the Convention and its officers and
members are all subject to all the provisions of the existing Constitution. Now we hold
that even as to its latter task of proposing amendments to the Constitution, it is subject
to the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding, of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of the
1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
"An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance, an election is the act of casting and receiving
the ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632,
637).
"Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or issue.
(Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them — the election of officers, national, state, county, township —
the passing on various other questions submitted for their determination." (29 C.J.S. 13,
citing IowaIllinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d
438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with such statutory
requirements as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63
N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in
29 C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of public officers except barrio officials and plebiscites
shall be conducted in the manner provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in
any regular or special election or in any plebiscite, he must be registered in the permanent list of
voters for the city, municipality or municipal district in which he resides: Provided, that no person shall
register more than once without first applying for cancellation of his previous registration." (Emphasis
supplied). (Please see also Sections 100102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies
who are 15 years of age or over. Under the provision of Section I of Article V of the 1935
Constitution, the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few instances,
was done by the raising of hands by the persons indiscriminately gathered to participate in the voting,
where even children below 15 years of age were included. This is a matter of common observation,
or of common knowledge, which the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis in declaring whether a
Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would mean the
rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a
question as to whether the Constitution, which is the supreme law of the land, should be ratified or
not, must not be decided by simply gathering people and asking them to raise their hands in answer
to the question of whether the vote for or against a proposed Constitution. The election as provided
by law should be strictly observed in determining the will of the sovereign people in a democracy. In
our Republic, the will of the people must be expressed through the ballot in a manner that is provided
by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands a
wellordered society require. The rule of law must prevail even over the apparent will of the majority
of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the
rule of law, public questions must be decided in accordance with the Constitution and the law. This is
specially true in the case of adoption of a constitution or in the ratification of an amendment to the
Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified, or not:
"When it is said that "the people" have the right to alter or amend the constitution, it must
not be understood that term necessarily includes all the inhabitants of the state. Since
the question of the adoption or rejection of a proposed new constitution or constitutional
amendment must be answered a vote, the determination of it rests with those who, by
existing constitution, are accorded the right of suffrage. But the qualified electors must
be understood in this, as in many other cases, as representing those who have not the
right to participate in the ballot. If a constitution should be abrogated and a new one
adopted, by the whole mass of people in a state acting through representatives not
chosen by the "people" in political sense of the term, but by the general body of the
populace, the movement would be extralegal." (BIack's Constitutional Law, Second
Edition, pp. 4748).
"The theory of our political system is that the ultimate sovereignty is in the people, from
whom springs all legitimate authority. The people of the Union created a national
constitution, and conferred upon it powers of sovereignty on certain subjects, and the
people of each State created a State government, to exercise the remaining powers of
sovereignty so far as they were disposed to allow them to be exercised at all. By the
constitution which they establish, they not only tie up the hands of their official agencies,
but their own hands as well; and neither the officers of the State, nor the whole people
as an aggregate body, are at liberty to take action in opposition to this fundamental law."
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3
So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however unanimous, on a proposal
to amend a constitution, may cure, render innocuous, all or any antecedent failures to
observe commands of that Constitution in respect of the formulation or submission of
proposed amendments thereto, does not prevail in Alabama, where the doctrine of the
stated theory was denied, in obvious effect, by the pronouncement 60 years ago of
broad, wholesome constitutional principles in Collier v. Frierson, supra, as quoted in the
original opinion, ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or thwart its mandates,
except through the peaceful means of a constitutional convention, or of an amendment
according to the mode therein prescribed, or through the exertion of the original right of
revolution. "The Constitution may be set aside by revolution, but it can only be amended
in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162
S.W. 99, 103. (Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for the
court must uphold and enforce the Constitution as written until it is amended in the way
which it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560;
McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v.
Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St.
Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not merely directory,
but are mandatory; and a strict observance of every substantial mandatory; and a strict
observance of every substantial requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people as on the legislature, and
the former are powerless by vote of acceptance to give legal sanction to an amendment
the submission of which was made in disregard of the limitations contained in the
constitution." (16 C.J.S. 3536. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the State will result from
the Court's action in declaring the proposed constitutional amendment void. This
statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it
will not be due to the action of the Court but will be the result of the failure of the drafters
joint resolution to observe, follow and obey the plain essential provisions of the
Constitution. Furthermore, to say that, the Court disregards its sworn duty to enforce the
Constitution, chaos and confusion will result, is an inherently weak argument in favor of
the alleged constitutionality of the proposed amendment. It is obvious that, if the Court
were to countenance the violations of the sacramental provisions Constitution, those
who would thereafter desire to violate it disregard its clear mandatory provisions would
resort to the scheme of involving and confusing the affairs of the State then simply tell
the Court that it was powerless to exercise one of its primary functions by rendering the
proper decree to make the Constitution effective." (Graham v. Jones, 3 So. 2d. 761,
793794).
In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail,
because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil.
758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the
elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the
expiration of the period for the filing of the same. However, on October 10, 1947, after the period for
the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on
November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the
withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that
Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground
that the votes cast for him were stray votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance
of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale
had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of
Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of
his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this
Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be given
effect, as declared by this Court, if certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast
be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice because of the existence of martial law in our country. The same
ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily
suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the
proposed constitution, be suspended in the meantime." It is, therefore, my view that voting in the
barangays on January 10, 1973 was not free, and so this is one added reason why the results of the
voting in the barangays should not be made the basis for proclamation of the ratification of the
proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of this Republic, and so it should
not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial
compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the
primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments must gain
the approval of the majority recognition of the democratic postulate that sovereign resides in the people." It is not
disputed that in a democratic sovereignty resides in the people. But the term "people" must be understood in its
constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective
franchise."8 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 VicePresident 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 VicePresident 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. Crescini9, 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 v. Del Fierro, 10 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 v. Justice of
the Peace of Bacolod, 11 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 exclusively for the benefit of the citizen or class
of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the
state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we talk of sovereign people,
what is meant are the people who act through the duly qualified and registered voters who vote during an election
that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed along with the
term "election" as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the
United States, popularly known as the TydingsMcDuffie Law (Public Act No. 127). Said Section 4 of the Tydings
McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the constitution conforms with the
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification
or rejection at an election to he held within months after the date of such certification, on a date to be
fixed by the Philippine Legislature at which election, the qualified voters of the Philippine Islands shall
have an opportunity to vote directly or against the proposed constitution and ordinances append
thereto. Such election shall be held in such manner as may prescribed by the Philippine Legislature
to which the return of the election shall be made. The Philippine Legislature shall certify the result to
the GovernorGeneral of the Philippine Islands, together with a statement of the votes cast, and a
copy of said constitution ordinances. If a majority of the votes cast shall be for the constitution, such
vote shall be deemed an expression of the will of the people of the Philippine Independence, and the
GovernorGeneral shall, within thirty days after receipt of the certification from the Philippine
Legislature, issue a proclamation for the election of officers of the government of the Commonwealth
of the Philippine Islands provided for in the Constitution...
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in
Section I Article XV of the 1935 Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution,
and also the "election" mentioned in the Independence Act at which "the qualified voters of the Philippine Islands
shall have an opportunity to vote directly for or against the proposed constitution..." It is but logical to expect that
the framers of the 1935 Constitution would provide a mode of ratifying an amendment to that Constitution similar
to the mode of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be done by holding
an election, as the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The
alleged referendum in the citizens assemblies — participated in by persons aged 15 years or more, regardless of
whether they were qualified voters or not, voting by raising their hands, and the results of the voting reported by
the barrio or ward captain, to the municipal mayor, who in turn submitted the report to the provincial Governor,
and the latter forwarding the reports to the Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has exclusive charge of the enforcement and
administration of all laws, relative to the conduct of elections — was not only a nonsubstantial compliance with
the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional
provision. It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a
substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971 Constitutional
Convention was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution,
the fact is that after the President of the Philippines had issued Proclamation No. 1102 declaring that the said
proposed Constitution "has been ratified by overwhelming majority of all the votes cast by the members of all the
barangays (citizens assemblies) throughout the Philippines and had thereby come into effect" the people have
accepted the new Constitution. What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have been performing their duties apparently
in observance of the provisions of the new Constitution. It could not be otherwise, because the President of the
Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come into
effect, and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some
92 members of the House of Representatives and 15 members of the Senate, of the Congress of the Philippines
had expressed their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII
of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their option to
serve in the interim National Assembly only one them took his oath of office; and of the 92 members of the House
of Representatives who opted to serve in the interim National Assembly, only 22 took their oath of office. The fact
that only one Senator out of 24, and only 22 Representative out of 110, took their oath of office, is an indication
that only a small portion of the members of Congress had manifested the acceptance of the new Constitution. It is
in the taking of the oath of office where the affiant says that he swears to "support and defend the Constitution"
that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L36165 (Gerardo
Roxas, et al. v. Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the
interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure, that in the
event the new Constitution becomes definitely effective and the interim National Assembly convened, they can
participate in legislative work in the capacity as duly elected representatives of the people, which otherwise they
could not do if they did not manifest their option to serve, and that option had to be made within 30 day from
January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the proposed Constitution does
not become effective, they continue to be members of Congress under the 1935 Constitution. Let it be considered
that the members of the House of Representatives were elected in 1969 to serve a term which will yet expire on
December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of
some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31,
1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and 18 members of the
House of Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience, accept the
reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their
approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the freedom of the
people to express their views regarding the proposed Constitution during the voting in the citizens assemblies,
and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the
citizens assemblies. This doubt has been engendered in my mind after a careful examination and study of the
records of these cases, particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it
may be said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in the
sense that they have continued to live peacefully and orderly under the government that has been existing since
January 17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people
do? In the same way that the people have lived under martial law since September 23, 1972, they also have to
live under the government as it now exists, and as it has existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is operative — whether it is the 1935 Constitution or the new
Constitution. Indeed, there is nothing that the people can do under the circumstances actually prevailing in our
country today — circumstances, known to all, and which I do not consider necessary to state in this opinion. I
cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the people have accepted
the new Constitution, and that because the people have accepted it, the new Constitution should be considered
as in force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article
XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into
effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity of the proposed
Constitution is not in issue in the cases before Us. What the petitioners assail is not the validity of the proposed
Constitution but the validity of Presidential Proclamation No. 1102 which declares the proposed Constitution as
having been ratified and has come into effect. It being my considered view that the ratification of the proposed
Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with the provisions of Section 1 of
Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not be given force and
effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so it is not in
force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of
the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still
functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite
held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have
adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967, it passed Resolution No.
2 calling a convention to propose amendments to the 1935 Constitution. The Court may take judicial notice of the
fact that the President of the Philippines has reassured the nation that the government of our Republic since the
declaration of martial law is not a revolutionary government, and that he has been acting all the way in
consonance with his powers under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view that the 1935 Constitution
is still in force, I believe Congress may still convene and pass a law calling for an election at which the Constitution
proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or rejection. A
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we
still have in our country the Rule of Law and that the democratic system of government that has been implanted in
our country by the Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in
democratic and constitutional system in our country. I feel that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced in Proclamation No. 1102, it being very clear that the
provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean is that if this Court now declares that a
new Constitution is now in force because the members of the citizens assemblies had approved the said new
Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in
the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendment
is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by
the people. There will not be stability in our constitutional system, and necessarily no stability in our government.
As a member of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation
in the future.
It appearing to me that the announced ratification of the proposed Constitution through the voting in the citizens
assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part
to be true to my oath of office to defend and support the 1935 Constitution. I am inspired by what the great jurist
and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the
protection and vindication of popular rights will be safe and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because,
as Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because
its possessors failed to stretch forth a saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these
cases. Along with him, I vote to deny the motion to dismiss and give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental significance is likely to confront this
Court in the near or distant future as that posed by these petitions. For while the specific substantive issue is the
validity of Presidential Proclamation No. 1102, an adverse judgment may be fraught with consequences that, to
say the least, are farreaching in its implications. As stressed by respondents, "what petitioners really seek to
invalidate is the new Constitution."1 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,2 it seems to me that the more appropriate course is this Court to give heed to the plea of petitioners that
the most serious attention be paid to their submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due respect for the opinion of my brethren, I must
perforce dissent. It would follow therefore that the legal position taken by the Chief Justice as set forth with his
usual lucidity and thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as
it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief
expression of the reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not expected to be an
oracle given to utterances of eternal verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of powers concept, involved not necessarily as
a participant in the formation of government policy, but as an arbiter of its legality. Even then, there is realism in
what Lerner did say about the American Supreme Court as "the focal point of a set of dynamic forces which [could
play] havoc with the landmarks of the American state and determine the power configuration of the day." 3 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."4 Nonetheless, as was stressed
by Professors Black5 and Murphy,6 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 support in a regime where the rule of law holds sway. In discharging
such a role, this Court must necessarily take in account not only what the exigent needs of the present demand
but what may lie ahead in the unexplored and unknown vistas of the future. It must guard against the pitfall of lack
of understanding of the dominant forces at work to seek a better life for all, especially those suffering from the
pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear
case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts
merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it does
not suffice that recourse be had only to what passes for scholarship in the law that could be marred by
inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I cannot, for
reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach the same result as the
majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official action, even with due allowance made for the good faith
that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case with
the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal
of these petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an
approach cannot be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the
people and the government possesses powers only. Essentially then, unless such an authority may either be
predicated on express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an
inquiry as to its validity. Respondents through SolicitorGeneral 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.7 Since the Constitution preeminently 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,8 Tolentino9 and Planas 10 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 in Dillon v. Gloss, 11 "cannot be treated as
unrelated acts, but as succeeding steps in a single endeavor." 12 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 v. Garcia. 13 Thus:
"The term has been made applicable to controversies clearly nonjudicial and therefore beyond its jurisdiction or
to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference must be paid. It has likewise been employed loosely to
characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. If to
be delimited with accuracy, "political questions" should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to full discretionary authority is vested either in the President
or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly falling within the
formulation, the decision reached by the political branches whether in the form of a congressional act or an
executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look
into its validity. It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding
that may be filed only after each coordinate branch has acted. Even when the Presidency or Congress possesses
plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy.
For the constitutional grant of authority is usually unrestricted. There are limits to what may be done and how it is
to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the
question of whether or not either of the two coordinate branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than political." 14 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." 15 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." 16 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 socalled
political departments of government or has reserved to be settled by its own extragovernmental action." 17 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 18 of Yale and Professor Freund 19 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." 20 It would thus appear that even then this Court was expected not to assume an attitude of timidity
and hesitancy when a constitutional question is posed. There was the assumption of course that it would face up
to such a task, without regard to political considerations and with no thought except that of discharging its trust.
Witness these words Justice Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever
necessary for us to make vehement affirmance during this formative period of political history, it is that we are
independent of the Executive no less than of the Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and
unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it." 22 The hope
of course was that such assertion of independence impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake that what elicits approval on the part of our people of
a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that to do so is
merely to do what is expected of it and that thereby there is no invasion of spheres appropriately belonging to the
political branches. For it needs to be kept in kind always that it can act only when there is a suit with proper
parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated. Then, too, it does
not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs
of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural
consistency and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance
made that for all its care and circumspection this Court manned by human beings fettered by fallibility,
nonetheless earnestly and sincerely striving to do right, the public acceptance of its vigorous pursuit of the task of
assuring that the Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is the teaching
of a host of cases from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 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 SolicitorGeneral 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." 25 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." 26 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 case of conflicting action by different branches of government or of constitutionally
unauthorized governmental action against individuals. The limitation and separation of powers, if they are to
survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over
the boundaries of constitutional power which arise in the process of government." 27 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 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.' " 28 Nor is it only Dean Rostow who could point Frankfurter, reputed to belong to the
same school of thought opposed to judicial activism, if not its leading advocate during his long stay in the United
States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the
demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat selfconsciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept characterization
of judicial review as undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said
that judicial review is an undemocratic feature of our political system, it ought also to be remembered that
architects of that system did not equate constitutional government with unbridled majority rule. Out of their
concern for political stability and security for private rights, ..., they designed a structure whose keystone was to
consist of barriers to the untrammeled exercise of power by any group. They perceived no contradiction between
effective government and constitutional checks. To James Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he viewed as the
chief problem in erecting a system of free representative government: 'In framing a government which is to be
administered by men over men, the great difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent apparent in
the writings of eminent authorities on the subject evince at the most fears that the American Supreme Court might
overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness of such competence being vested
in judges and of their being called upon to fulfill such a trust whenever appropriate to the decision of a case
before them. That is why it has been correctly maintained that notwithstanding the absence of any explicit
provision in the fundamental law of the United States Constitution, that distinguished American constitutional
historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to the power of courts to
interpret the law, of which the Constitution is part, in connection with the decision of cases." 31 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 v. Madison. 32 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." 33 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 ... ." 34 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 of thought, this meaningful query: "The Constitution nowhere provides that it shall be
what the judges say it is. How, did it come about that the statement not only could be but could become current as
the most understandable comprehensive summary of American Constitutional law?" 35 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." 36 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 v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in 1969, both noted in the opinion
of the Chief Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about
the American Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very
deep into the very being of Congress." 40 For him, the judiciary "ought not to enter this political thicket." Baker has
since then been followed; it has spawned a host of cases. 41 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 v. Avelino, 42 It
does look then that even in the United States, the plea for judicial selfrestraint, 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 selfrestraint 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." 43 As for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam
papers case, 44 he was less than insistent on the American Supreme Court exercising judicial selfrestraint. 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. 45 It has brought forth a plethora of law review articles, the reaction
ranging from guarded conformity to caustic criticism. 46 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 factors,
it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the
functional reasons justify it and that in a give involving its expansion there should be careful consideration also of
the social considerations which may militate against it. The doctrine has a certain specious charm because of its
nice intellectualism and because of the fine deference it permits to expertise, to secret knowledge, and to the
prerogatives of others. It should not be allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of the worth and
significance of judicial review in the United States. I cannot resist the conclusion then that the views advanced on
this subject by distinguished counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the
van, rather than the advocacy of the SolicitorGeneral, 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, 48 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, 49 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 tolerated. Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or disregarded. This is not to deny that a recognition conclusive
effect attached to the electorate manifesting its will to vote affirmatively on the amendments proposed poses an
obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compliance is enough.
A great many American State decisions may be cited in support of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread, so that this
Court is called upon to give meaning and perspective to what could be considered words of vague generality,
pregnant with uncertainty, still whatever obscurity it possesses is illumined when the light of the previous
legislation is thrown on it. In the first Commonwealth Act, 51 submitting to the Filipino people for approval or
disapproval certain amendments to the original ordinance appended to the 1935 Constitution, it was made that
the election for such purpose was to "be conducted in conformity with the provisions of the Election Code insofar
as the same may be applicable." 52 Then came the statute, 53 calling for the plebiscite on the three 1940
amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a
Senate and a House of Representatives to take the place of a unicameral National Assembly, 54 reducing the term
of the President to four years but allowing his reelection with the limitation that he cannot serve more than eight
consecutive years, 55 and creating an independent Commission on Elections. 56 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." 57 The approval of the present parity amendment was by virtue of a Republic Act 58 which
specifically made applicable the then Election Code. 59 There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in
the membership of the House of Representatives a maximum of one hundred eighty and assured the eligibility of
senators and representatives to become members of such constituent body without forfeiting their seats, as
proposed amendments to be voted on in the 1967 elections. 61 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, 62 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." 63 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." 64 From them, as Corwin did stress, emanate "the highest
possible embodiment of human will," 65 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 is not the case, however,
once it is manifested, it is to be accepted as final and authoritative. The government which is merely an agency to
register its commands has no choice but to submit. Its officials must act accordingly. No agency is exempt such a
duty, not even this Court. In that sense, the lack of regularity in the method employed to register its wishes is fatal
in its consequences. Once the fact of acceptance by people of a new fundamental law is made evident, the
judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the courts
as well.
There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not
entirely bereft of persuasive significance. In Miller v. Johnson, 66 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 vote of the state and ratified by
a majority of those voting. The constitution then in force authorized the legislature, the preliminary steps having
been taken, to call a convention "for the purpose of readopting, amending, or changing" it contained no provision
giving the legislature the power to require a submission of its work to a vote of the people. The convention met in
September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vote, and then
adjourned until September following. When the convention reassembled, the delegates made numerous changes
in instrument. As thus amended, it was promulgated by the convention of September 28, 1891, as the new
constitution. An action was brought to challenge its validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms
of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the
courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must
resist until they are overturned by power, and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and
promulgated according to the forms of law. It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While
the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort, yet it should at the same time be
careful not to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where
such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted,
and its duty requires, the overthrow of the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903
decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it was ordained and
promulgated by the convention without being submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of the convention has been recognized, accepted, and acted upon as
the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed
thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901,
as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its provisions;
and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters
under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election
for their representatives in the Congress of the United States. The Constitution having been thus acknowledged
and accepted by the office administering the government and by the people of the state, and there being no
government in existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in
holding that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only
rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their obedience
and loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised
Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not merely a
case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result as indicated in
Proclamation No. 1102. From the standpoint of respondents then, they could allege that there was more than just
mere acquiescence by the sovereign people. Its will was thus expressed formally and unmistakably. It may be
added that there was nothing inherently objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote
to be deplored. The greater the base of mass participation, the more there is fealty to the democratic concept. It
does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised.
This Court is to respect what had thus received the people's sanction. That is not for me though whole of it.
Further scrutiny even then is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had
as to whether such indeed was the result. This is no more than what the courts do in election cases. There are
other factors to bear in mind. The fact that the President so certified is wellnigh 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 clearcut 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 soulsearching. 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 commanderinchief with all the
constitutional powers it implies. Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue even the tenor of their ways. They are free to act according to its tenets.
That was so these past few weeks, even petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to remain even if the motions to dismiss were
not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision of
this Court need not be executory right away. Such a disposition of a case before this Court is not novel. That was
how it was done in the Emergency Powers Act controversy. 70 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 knighterrant, 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." 71 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 precedentsetting issue submitted by petitioners for the Court's resolution is the validity
and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming
that the Constitution proposed by the 1971 Constitutional Convention "has been ratified by an overwhelming
majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means
of the Citizens Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of
1935 that duly proposed amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the amendments are submitted to the
people for their ratification."1
A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on
November 30, 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with
its own mandate that "(T)his Constitution shall take immediately upon its ratification by a majority of the votes cast
in a plebiscite called for the purpose and except as herein provided, shall supersede the Constitution of Nineteen
hundred and thirtyfive and all amendments thereto."2
Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No.
1102, what petitioners really seek to invalidate is the new Constitution", and their actions must be
dismissed, because:
— "the Court may not inquire into the validity of the procedure for ratification" which is "political in
character" and that "what is sought to be invalidated is not an act of the President but of the people;
— "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast as
declared and certified in Proclamation No. 1102 is conclusive on the courts;
— "Proclamation No. 1102 was issued by the President in the exercise of legislative power under
martial law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional
Convention;"
— "alleged defects, such as absence of secret voting, enfranchisement of persons less than 21
years, non supervision (by) the Comelec are matters not required by Article XV of the 1935
Constitution"; (sic)
— "after ratification, whatever defects there might have been in the procedure are overcome and
mooted (and muted) by the fact of ratification"; and
— "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the ratification
of the new Constitution must nonetheless be respected. For the procedure outlined in Article XV was
not intended to be exclusive of other procedures, especially one which contemplates popular and
direct participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be
"invalidating the new Constitution", the terms and premises of the issues have to be defined.
— Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declaratory of the
fact that the 1973 Constitution has been ratified and has come into force.4
— The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been
consistently held by the Court in the Gonzales:5 and Tolentino6 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."7
— In the same Tolentino case, this Court further proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the present Charter, any proposal for such amendment
which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments,
cannot receive the sanction of this Court."8
— 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"9 and under the supervision of the
Commission on Elections. 10
— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported

ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with
the mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating" the
proposed new Constitution but would be simply declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies referendums does not pass the constitutional test and
that the proposed new Constitution has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the
disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by
citing the selfsame 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 SolicitorGeneral on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11 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 prewar 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
Courts of First Instance; Executive Order No. 184, issued on November 19, 1948, controlling rice and
palay to combat hunger; and other executive orders appropriating funds for other purposes. The
consequences of a blanket nullification of all these executive orders will be unquestionably serious
and harmful. And I hold that before nullifying them, other important circumstances should be inquired
into, as for instance, whether or not they have been ratified by Congress expressly or impliedly,
whether their purposes have already been accomplished entirely or partially, and in the last instance,
to what extent; acquiescence of litigants; de facto officers; acts and contracts of parties acting in
good faith; etc. It is my opinion that each executive order must be viewed in the light of its peculiar
circumstances, and, if necessary and possible, nullifying it, precautionary measures should be taken
to avoid harm to public interest and innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions
holding null and void the executive orders on rentals and export control but to defer judgment on the Rodriguez
and Barredo petitions for judicial declarations of nullity of the executive orders appropriating the 19491950 fiscal
year budget for the government and P6 million for the holding of the 1949 national elections. After rehearsing, he
further voted to also declare null and void the last two executive orders appropriating funds for the 1949 budget
and elections, completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for annulment despite
the great difficulties and possible "harmful consequences" in the following passage, which bears rereading:
However, now that the holding of a special session of Congress for the purpose of remedying the
nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that
these two executive orders were issued without authority of law.
While in voting for a temporary deferment of the judgment I was moved by the belief that positive
compliance with the Constitution by the other branches of the Government, which is our prime
concern in all these cases, would be effected, and indefinite deferment will produce the opposite
result because it would legitimize a prolonged or permanent evasion of our organic law. Executive
orders which are, in our opinion, repugnant to the Constitution, would be given permanent life,
opening the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring opinion, would come to pass
should the said executive orders be immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress is not now forthcoming.
However, the remedy now lies in the hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a special session should the need for one arise, and
in the latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel
Congress to remain in special session till it approves the legislative measures most needed by the
country.
Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life
in this country, if each of the great branches of the Government, within its own allocated sphere,
complies with its own constitutional duty, uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles underlying its organic structure should be
maintained firm and strong, hard as the best of steel, so as to insure its growth and development
along solid lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and
export control executive orders) likewise observed that "(T)he truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances 'the various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its duty and responsibility has been
considerably lightened by the President's public manifestation of adherence to constitutional processes and of
working within the proper constitutional framework as per his press conference of January 20,1973, wherein he
stated that "(T)he Supreme Court is the final arbiter of the Constitution. It can and will probably determine the
validity of this Constitution. I did not want to talk about this because actually there is a case pending before the
Supreme Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to
appointments, the matter falls under a general provision which authorizes the Prime Minister to appoint additional
members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing
that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions
of whether the submission of the proposed constitutional amendment of the State Constitution providing for an
elective, instead of an appointive, judiciary and whether the proposition was in fact adopted, were justifiable and
not political questions, we may echo the words therein of Chief Justice Whitfield that "(W)e do not seek a
jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our
duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in
its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which,
like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are faced with the
hard choice of maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular mode and manner prescribed therein by
the people, who, in Cooley's words, so "tied up (not only) the hands of their official agencies, but their own hands
as well" 18 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", 19 participated in only by qualified and duly registered voters twenty
one years of age or over 20 and duly supervised by the Commission on Elections, 21 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", 22 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", 23 and that the Comelec is constitutionally "mandated to oversee ... elections (of public officers) and
not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury vs.
Madison 25 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, 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, 26 "(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 of good government and restrictions embodied in our Constitution are real as they should be in any
living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a
definition of the powers of government" placed upon the judiciary the great burden of "determining the nature,
scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments ... but only asserts the solemn and
sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland 27 the "climactic
phrase," 28 "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." 29 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." 30
This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial)
compliance with the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an advance election
of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the
Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments
that will be proposed in the future ... on other portions of the amended section", this Court stated that "the
constitutional provision in question (as proposed) presents no doubt which may be resolved in favor of
respondents and intervenors. We do not believe such doubt can exist only because it is urged that the end sought
to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Convention of 1934,
Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the same ease and facility in changing
an ordinary legislation. Constitution making is the most valued power, second to none, of the people
in a constitutional democracy such as the one our founding fathers have chosen for this nation, and
which we of the succeeding generations generally cherish. And because the Constitution affects the
lives, fortunes, future and every other conceivable aspect of the lives of all the people within the
country and those subject to its sovereignty, every degree of care is taken in preparing and drafting
it. A constitution worthy of the people for deliberation and study. It is obvious that correspondingly,
any amendment of the Constitution is of no less importance than the whole Constitution itself, and
perforce must be conceived and prepared with as much care and deliberation. From the very nature
of things, the drafters of an original constitution, as already observed earlier, operate without any
limitations, restraints or inhibitions save those that they may impose upon themselves. This is not
necessarily true of subsequent conventions called to amend the original constitution. Generally, the
framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or
changed, not only for reasons purely personal but more importantly, because written constitutions
are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as
they can be adopted to the needs and exigencies of the people, hence, they must be insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of their amendment. And
when such limitations or conditions are so incorporated in the original constitution, it does not lie in
the delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are powerful and omnipotent as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales
vs. Comelec33, 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 amendment per se as well as its relation to the other parts
of the Constitution with which it has to form a harmonious whole. In the context of the present state of
things, where the Convention hardly started considering the merits of hundreds, if not thousands,
proposals to amend the existing Constitution, to present to people any single proposal or a few of
them cannot comply with this requirement. We are of the opinion that the present Constitution does
not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark
as to frame of reference they can base their judgment on. We reject the rationalization that the
present Constitution is a possible frame of reference, for the simple reason that intervenors
themselves are stating the sole purpose of the proposed amendment is to enable the eighteen year
olds to take part in the election for the ratification of the Constitution to be drafted by the Convention.
In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking
for the six members of the Court in Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court 35 in a separate concurrence in Tolentino, expressed their "essential
agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent
rejection" as "minimum requirements that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform every citizen of the provisions to
be amended, and the proposed amendments and the meaning, nature and effects thereof. By this,
we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For as we
have earlier stated, one thing is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. 36
They stressed further the need for undivided attention, sufficient information and full debate, conformably to the

intendment of Article XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18year old as
mature as the 21year 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 18year old be relied upon to vote with
judiciousness when the 21year 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 18year old should
not also shoulder the moral and legal responsibilities of the 21year old? Will he be required to
compulsory military service under the colors? Will the contractual consent be reduced to 18 years? If
I vote against the amendment, will I not be unfair to my own child who will be 18 years old, come
1973?
The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot except as the questions are debated
fully, pondered upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of the
proposed amendment by their traditional pervasive involvement in local elections and politics. They
cannot thus weigh in tranquility the need for and the wisdom proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending process "in
favor of allowing the sovereign people to express their decision on the proposed amendments" as "anachronistic
in the real constitutionalism and repugnant to the essence of the rule of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said section, We must read it as if the
people had said, 'This Constitution may be amended, but it is our will that the amendment must be
proposed and submitted to Us for ratification only in the manner herein provided.' ... Accordingly, the
real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision
on the proposed amendments, if only because it is evident that the very idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of
the rule of law; rather, it is whether or not the provisional nature of the proposed amendment and the
manner of its submission to the people for ratification or rejection conform with the mandate of the
people themselves in such regard, as expressed in, the Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic and contrary to the
plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray
by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other departments of the government or any other official
or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution,
by interpreting and construing its provisions in appropriate cases with the proper parties and by striking down any
act violative thereof. Here, as in all other cases, We are resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of the motion for
reconsideration, succinctly restated this Court's position on the fundamentals, as follows:
— On the premature submission of a partial amendment proposal, with a "temporary provisional or
tentative character": — "... a partial amendment would deprive the voters of the context which is
usually necessary for them to make a reasonably intelligent appraisal of the issue submitted for their
ratification or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without a
definite frame of reference, is fraught with possibilities which may jeopardize the social fabric. For
one thing, it opens the door to wild speculations. It offers ample opportunities for overzealous leaders
and members of opposing political camps to unduly exaggerate the pros and cons of the partial
amendment proposed. In short, it is apt to breed false hopes and create wrong impressions. As a
consequence, it is bound to unduly strain the people's faith in the soundness and validity of
democratic processes and institutions.
— On the plea to allow submission to the sovereign people of the "fragmentary and incomplete"
proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also,
advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as the
people are sovereign, and the partial amendment involved in this case is being submitted to them.
The issue before Us is whether or not said partial amendment may be validly submitted to the people
for ratification "in a plebiscite coincide with the local elections in November 1971," and this particular
issue will not be submitted to the people. What is more, the Constitution does not permit its
submission to the people. The question sought to be settled in the scheduled plebiscite is whether or
not the people are in favor of the reduction of the voting age.
— On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legalistic?"
This term has possible connotations. It may mean strict adherence to the law, which in the case at
bar is the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific
man of such Supreme Law, the members of the Supreme Court taken the requisite "oath to support
and defend the Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely
that the somewhat strained interpretation of the Constitution being urged upon this Court be tolerated
or, at least, overlooked, upon the theory that the partial amendment on voting age is badly needed
and reflects the will of the people, specially the youth. This course of action favors, in effect, adoption
of a political approach, inasmuch as the advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart from the obvious message of the mass media,
and, at times, of the pulpit, the Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as well as letterhead of some
sectarian educational institutions, generally stating that the writer is 18 years of age and urging that
she or he be allowed to vote. Thus, the pressure of public opinion has brought to bear heavily upon
the Court for a reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the amendment and the popularity thereof are political
questions beyond our province. In fact, respondents and the intervenors originally maintained that
We have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised
is a political one. Aside from the absence of authority to pass upon political question, it is obviously
improper and unwise for the bench to develop into such questions owing to the danger of getting
involved in politics, more likely of a partisan nature, and, hence, of impairing the image and the
usefulness of courts of justice as objective and impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the
people and the very Convention itself. Indeed, the latter and the Constitution it is in the process of
drafting stand essentially for the Rule of Law. However, as the Supreme Law of the land, a
Constitution would not be worthy of its name, and the Convention called upon to draft it would be
engaged in a futile undertaking, if we did not exact faithful adherence to the fundamental tenets set
forth in the Constitution and compliance with its provisions were not obligatory. If we, in effect,
approved, consented to or even overlooked a circumvention of said tenets and provisions, because
of the good intention with which Resolution No. 1 is animated, the Court would thereby become the
Judge of the good or bad intentions of the Convention and thus be involved in a question essentially
political in nature.
This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of
judicial statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to
epitomize compromise, even with principles, for the sake of political expediency or the advancement
of the bid for power of a given political party. Upon the other hand, statesmanship is the expression
usually availed of to refer to high politics or politics on the highest level. In any event, politics, political
approach, political expediency and statesmanship are generally associated, and often identified, with
the dictum that "the end justifies the means." I earnestly hope that the administration of justice in this
country and the Supreme Court, in particular, will adhere to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the submission of
the proposed amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18
to 20 years who comprise more than three (3) million of our population to participate in the ratification of the new
Constitution in so far as "to allow young people who would be governed by the Constitution to be given a say on
what kind of Constitution they will have" is a laudable end, ... those urging the vitality and importance of the
proposed constitutional amendment and its approval ahead of the complete and final draft of the Constitution
must seek a valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our
people in the present Constitution" 41 — so that there may be "submitted, not piecemeal, 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 aboveenunciated 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 socalled entirely new Constitutions. Amendments to an
existing Constitution presumably may be only of certain parts or in toto, and in the latter case would rise to an
entirely new Constitution. Where this Court held in Tolentino that "any amendment of the Constitution is of no less
importance than the whole Constitution itself and perforce must be conceived and prepared with as much care
and deliberation", it would appeal that the reverse would equally be true; which is to say, that the adoption of a
whole new Constitution would be of no less importance than any particular amendment and therefore the
necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process
ordained by the people themselves so that "they (may) be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the Constitution for the amending process
only "by approval by a majority of the votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage
may speak the "will of the body politic", viz, qualified literate voters twenty one years of age or over with one
year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article
XV, for the creation of an independent Commission on Elections with "exclusive charge" for the purpose of
"insuring free, orderly and honest elections" and ascertaining the true will of the electorate — and more, as ruled
by this Court in Tolentino, in the case of proposed constitutional amendments, insuring proper submission to the
electorate of such proposals. 42
2. A Massachussets case 43 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, lawabiding and educated, but also those who are wholly or in part dependents and charges upon
society by reason of immaturity, mental or moral deficiency or lack of the common essentials of education. All
these persons are secured fundamental guarantees of the Constitution in life, liberty and property and the pursuit
of happiness, except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals" governed by a constitution and
common laws in a "social compact ... for the common good" and in another sense of "people" in a "practical
sense" for "political purposes" it was therein fittingly stated that in this sense, "people" comprises many who, by
reason of want of years, of capacity or of the educational requirements of Article 20 of the amendments of the
Constitution, can have no voice in any government and who yet are entitled to all the immunities and protection
established by the Constitution. 'People' in this aspect is coextensive with the body politic. But it is obvious that
'people' cannot be used with this broad meaning of political signification. The 'people' in this connection means
that part of the entire body of inhabitants who under the Constitution are intrusted with the exercise of the
sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means
those who under the existing Constitution possess the right to exercise the elective franchise and who, while that
instrument remains in force unchanged, will be the sole organs through which the will of the body politic can be
expressed. 'People' for political purposes must be considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political power, their
governments, national and state, have been limited by constitutions, and they have themselves thereby set
bounds to their own power, as against the sudden impulse of mere majorities." 44
From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a majority of the
votes cast at an election at which the amendments are submitted to the people for their ratification", it seems
obvious as abovestated that "people" as therein used must be considered synonymous with "qualified voters" as
enfranchised under Article V, section 1 of the Constitution — since only "people" who are qualified voters can
exercise the right of suffrage and cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the Constitution
and implementing statutes to ascertain and record the will of the people in free, orderly and honest elections
supervised by the Comelec make it imperative that there be strict adherence to the constitutional requirements
laid down for the process of amending in toto or in part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio plebiscites
thus: "SEC. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when called by at least four members of the
barrio council: Provided, however, That no plebiscite shall be held until after thirty days from its approval by either
body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time and place
thereof, the questions or issues to be decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered barrio assembly
members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in
regular elections, and/or declaration by the voters to the board of election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to decide on the
recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances" and the required majority vote is specified: "(F)or taking action on any of
the above enumerated measures, majority vote of all the barrio assembly members registered in the list of the
barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 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 by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio
elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the abovecited
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 51 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 52 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; 53
whether the reported votes of approval of the proposed Constitution conditioned upon the nonconvening of the
interim National Assembly provided in Article XVII, section 1 thereof, 54 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 preproclamation 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" 55 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 visavis the
ratification of the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the
contrary, the said minutes fully show that the Convention's proposal and "agency" was that the President issue a
decree precisely calling a plebiscite for the ratification of the proposed new Constitution on an appropriate date,
under the charge of the Comelec, and with a reasonable period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the
resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention
propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite
for the ratification of the proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that copies of this
resolution as approved in plenary session be transmitted to the President of the
Philippines and the Commission on Elections for implementation."
He suggested that in view of the expected approval of the final draft of the new Constitution by the
end of November 1972 according to the Convention's timetable, it would be necessary to lay the
groundwork for the appropriate agencies of the government to undertake the necessary preparation
for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because
section 15, Article XVII on the Transitory Provision, which had already been approved on second and
third readings, provided that the new constitution should be ratified in a plebiscite called for the
purpose by the incumbent President. Delegate Duavit replied that the provision referred to did not
include the appropriation of funds for the plebiscite and that, moreover, the resolution was intended
to serve formal notice to the President and the Commission on Elections to initiate the necessary
preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information
campaign was necessary in order to properly apprise the people of the implications and significance
of the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was
modified to give the President the discretion to choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the President informing him of the
adoption of the new Constitution would not suffice considering that under Section 15 of the Transitory
Provisions, the President would be dutybound to call a plebiscite for its ratification. Delegate Duavit
replied in the negative, adding that the resolution was necessary to serve notice to the proper
authorities to prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of the
plebiscite would be laid down by the Commission on Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of
martial law in order to allow the people to assemble peaceably to discuss the new Constitution.
Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with
the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one
more interpellant and that a prior reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a
resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate
Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the
purpose.
13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was
approved.
Upon request of the Chair, Delegate Duavit restated the resolution for voting.
14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands.
57
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order
and 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 inchief 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 highhanded
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 "CommanderinChief"
clause of the constitution. The contours of such powers have been shaped more by a long line of historical
precedents of Presidential action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers
under the "commanderinchief" 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 quasilegislative powers of Franklin Roosevelt as
"CommanderinChief 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 socalled overage destroyers to Great Britain. The truth is, they were not overage, but had been
recently reconditioned and recommissioned. ... Actually, what President Roosevelt did was to take over for the
nonce Congress's power to dispose of property of the United States (Article IV, Section 3) and to repeal at least
two statutes." (Corwin & Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The
President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet President Wilson,
during World War I on the basis of his powers under the "CommanderinChief" clause created "offices" which
were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirtyfive "executive agencies"
were purely of Presidential creation. On June 7, 1941 on the basis of his powers as "CommanderinChief", he
issued an executive order seizing the North American Aviation plant of Inglewood, California, where production
stopped as a consequence of a strike. This was justified by the government as the exercise of presidential power
growing out of the "duty constitutionally and inherently resting upon the President to exert his civil and military as
well as his moral authority to keep the defense efforts of the United States a going concern" as well as "to obtain
supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a
similar justification, other plants and industries were taken over by the government. It is true that in Youngstown
Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United
States did not sustain the claims that the President could, as the Nation's Chief Executive and Commanderin
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 CommanderinChief. Justice Clark, in his concurrence to the main opinion of the Court, explicitly asserted
that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he regards as threatening the national
security. The same view was shared with vague qualification by Justices Frankfurter and Jackson, two of the
concurring Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further
by quoting with approval a passage extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President
to order withdrawals from the public domain not only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view that the
President in times of a grave crisis does not possess a residual power above or in consequence of his granted
powers, to deal with emergencies that he regards as threatening the national security. The lesson of the Steel
Seizure case, according to Corwin and Koenig, "Unquestionably ... tends to supplement presidential emergency
power to adopt temporary remedial legislation when Congress has been, in the judgment of the President, unduly
remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New
York University Press, 1956).
The accumulation of precedents has thus built up the presidential power under emergency conditions to
"dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law,
or even to supersede it so far as may be requisite to realize the fundamental law of nature and government,
namely, that as much as may be all the members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore, that the President had
no power to issue Presidential Decree Nos. 86 and 86A as well as Proclamation No. 1102, since these measures
were considered indispensable to effect the desired reforms at the shortest time possible and hasten the
restoration of normalcy? It is unavailing for petitioners to contend that we are not faced by an actual "shooting
war" for today's concept of the emergency which justified the exercise of those powers has of necessity been
expanded to meet the exigencies of new dangers and crisis that directly threaten the nation's continued and
constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special type of emergency
warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so that there is
not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New
Deal may be said to have issued, the nation was confronted in the opinion of the late President with an
'emergency greater than war'; and in sustaining certain of the New Deal measures the Court invoked the
justification of 'emergency.' In the final result constitutional practices of wartime have moulded the Constitution to
greater or less extent for peacetime as well, seem likely to do so still more pronouncedly under fresh conditions of
crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional government is resisted openly by
large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or
are bent on capturing it illegally or destroying it altogether. The third crisis, one recognized
particularly in modern times as sanctioning emergency action by constitutional governments, is
economic depression. The economic troubles which plagued all the countries of the world in the early
thirties involved governmental methods of an unquestionably dictatorial character in many
democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And
these are not the only cases which have justified extraordinary governmental action in nations like
the United States. Fire, flood, drought, earthquake, riots, great strikes have all been dealt with by
unusual and of dictatorial methods. Wars are not won by debating societies, rebellions are not
suppressed by judicial injunctions, reemployment of twelve million jobless citizens will not be effected
through a scrupulous regard for the tenets of free enterprise, hardships caused by the eruptions of
nature cannot be mitigated letting nature take its course. The Civil War, the depression of 1933 and
the recent global conflict were not and could not have been successfully resolved by governments
similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship — Crisis of Government in the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the referendum in question not having been done
inaccordance with the provisions of existing election laws, which only qualified voters who are allowed to
participate, under the supervision of the Commission on Elections, the new Constitution, should therefore be a
nullity. Such an argument is predicated upon an assumption, that Article XV of the 1935 Constitution provides the
method for the revision of the constitution, and automatically apply in the final approval of such proposed new
Constitution the provisions of the election law and those of Article V and X of the old Constitution. We search in
vain for any provision in the old charter specifically providing for such procedure in the case of a total revision or a
rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve
a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change
of only specific provisions. The intention of an act to amend is not the change of the entire constitution but only
the improvement of specific parts of the existing constitution of the addition of provisions deemed essential as a
consequence of new constitutions or the elimination of parts already considered obsolete or unresponsive to the
needs of the times.1 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 not disabled from exercising their right as the ultimate source of political power from changing the
old constitution which, in their view, was not responsive to their needs and in adopting a new charter of
government to enable them to rid themselves from the shackles of traditional norms and to pursue with new
dynamism the realization of their true longings and aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of
the youth in the process of ratification who after all constitute the preponderant majority more in accord with the
spirit and philosophy of the constitution that political power is inherent in the people collectively? As clearly
expounded by Justice Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of
the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed
by the constitution, the procedure prescribed by the state Constitution, is so detailed, that specified the manner in
which such submission shall be made, the persons qualified to vote for the same, the date of election and other
definite standards, from which the court could safely ascertain whether or not the submission was in accordance
with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting
opinions involved in the application of the provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the Constitution may be amended or revised.2 This is not true with
our Constitution. In the case of revision there are no "standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the Constitution the method or procedure for the revision
or rewriting of the entire constitution, and if such was their intention, they could and should have so provided.
Precedents were not wanting. The constitutions of the various states of the American Union did provide for
procedures for their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935
Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or
complete change of the Constitution, it is evident that the people have reserved such power in themselves. They
decided to exercise it not through their legislature, but through a Convention expressly chosen for that purpose.
The Convention as an independent and sovereign body has drafted not an amendment but a completely new
Constitution, which decided to submit to the people for approval, not through an act of Congress, but by means of
decrees to be promulgated by the President. In view of the inability of Congress to act, it was within the
constitutional powers of the President, either as agent of the Constitutional Convention, or under his authority
under martial law, to promulgate the necessary measures for the ratification of the proposed new Constitution.
The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the
new society, to root out the causes of unrest. The imperatives of the emergency underscored the urgency of its
adoption. The people in accepting such procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken. "When the people adopt completely revised
or new constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326330), "the framing or
submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat
of the people, can breathe life into a constitution."
This has to be so because, in our political system, all political power is inherent in the people and free
governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935
Constitution declares that: "Sovereignty resides in the people and all government authority emanate from them."
Evidently the term people refers to the entire citizenry and not merely to the electorate, for the latter is only a
fraction of the people and is only an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an entire Constitution that is
already effective as it has been accepted and acquiesced in by the people as shown by their compliance with the
decree promulgated thereunder, their cooperation in its implementation, and is now maintained by the
Government that is in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because
under a regime of martial law the people are bound to obey and act in conformity with the orders of the President,
and has absolutely no other choice. The flaw of this argument lies in its application of a mere theoretical
assumption based on the experiences of other nations on an entirely different factual setting. Such an assumption
flounders on the rock of reality. It is true that as a general rule martial law is the use of military forces to perform
the functions of civil government. Some courts have viewed it as a military regime which can be imposed in
emergency situations. In other words, martial rule exists when the military rises superior to the civil power in the
exercise of some or all the functions of government. Such is not the case in this country. The government
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the
imposition of curfew hours and other restrictions required for the security of the State, the people are free to
pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a
regime of Martial law in other countries. "Upon the other hand the masses of our people have accepted it,
because of its manifold blessings. The once downtrodden rice tenant has at long last been emancipated — a
consummation devoutly wished by every Philippine President since the 1930's. The laborer now holds his head
high because his rights are amply protected and respected." * A new sense of discipline has swiftly spread beyond the corridors of
government into the social order. Responding to the challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes
on undeclared goods and income in unprecedented numbers and amount, lent their labors in massive cooperation — in land reform, in the repair of dikes,
irrigation ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire
country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at long last been
freed from the incubus of fear.
"Martial law has paved the way for a reordering of the basic social structure of the Philippines" reported Frank
Valeo to the United States Senate. "President Marcos has been prompt and surefooted 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 (19651969), Mr. Marcos was discouraged by the failure of
legislators to approve urgently needed reforms. He found his second term further frustrated by
spread riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and
Indonesia. Manila claims this war is Maoistcoordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will
relinquish them. But, while fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land are redistributed with
state funds. New roads have been started. The educational system is undergoing revision, a
corruption is diminished. In noncommunist 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 sharecropperabsentee landlord relationship. He is even pushing for a
birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms
and increased wages. (Daily Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of counsel for
petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are by and large applied
and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer
interpreted by presupposing the old basic norm, but by presupposing the new one. The statutes issued under the
old Constitution and not taken over are no longer regarded as valid, and the organs authorized by the old
Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by understanding that in the final
analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely
declaratory of the fact of approval or ratification, but the legitimacy of the government. It is addressed more to the
framework and political character of this Government which now functions under the new Charter. It seeks to
nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners could be judicially decided. "Judicial
power presupposes an established government capable of enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising judicial power." (Luther v. Borden, 48 U.S.
[7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been effected through political action, the
Court whose existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from
passing upon the fact of change by a logical difficulty which is not to be surmounted."5 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."6 It involves in essence a matter which "the sovereign has
entrusted to the socalled political departments of government or has reserved to be settled by its own extra
governmental action."7
The nonjudicial character of such a question has been recognized in American law. "From its earliest opinions
this Court has consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369
U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies which do not lend themselves to judicial
standards and judicial remedies. To classify the various instances as "political questions" is rather a form of
stating this conclusion than revealing of analysis ... The crux of the matter is that courts are not fit instruments of
decision where what is essentially at stake is the composition of those large contests of policy traditionally fought
out in nonjudicial forums, by which governments and the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar, cannot be a
case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the opposite. At bottom, it is the degree of
one's faith — in the nation's leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court in
its judgment of March question becomes wholly moot except for this consideration, that, when the
judges as individuals or as a body of individuals come to decide which king or which constitution they
will support and assert to represent, it may often be good judgment for them to follow the lead of the
men who as a practical matter are likely to be looked to by the people as more representative of
themselves and conversely are likely to be more directly in touch with popular sentiment. If, however,
the judges hold too strong views of their own to be able to take this course, they may follow their own
leads at their own hazard. No question of law is involved. (Political Questions, 38 Harvard Law
Review [192425], pp. 305309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L36142, 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 twothirds vote of each house of the
legislature. The secretary of state shall prepare a ballot title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next statewide election. If a majority of the votes cast on
the proposition favor the amendment, it becomes effective thirty days after the certification of the election returns
by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at any time.
Sec. 3. Call by referendum. If during any tenyear 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 tenyear period. If a majority of the votes cast on the question
are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless
the legislature provides for the election of the election delegates at a special election. The secretary of state shall
issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly
as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification of revisions and
ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the constitution, subject
only to ratification by the people. No call for a constitutional convention shall limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be proposed in the
Senate or Assembly, and if twothirds of all the members elected to each of the houses shall vote in favor thereof,
such proposed amendment or amendments shall be entered in their Journals, with the yeas and nays taken
thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the
people in such manner, and at such time, and after such publication as may be deemed expedient. Should more
amendments than one be submitted at the same election they shall be so prepared and distinguished, by
numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such
amendment or amendments, or any of them, by a majority of the qualified electors voting thereon such
amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever twothirds of the members elected to each branch of the Legislature
shall deem it necessary to revise this Constitution, they shall recommend to the electors to vote at the next
general for or against a Convention for that purpose, and if a majority of the electors voting at such election on
the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its next session, provide by
law for calling the same. The Convention shall consist of a number of delegates not to exceed that of both
branches of the Legislature, who shall be chosen in the same manner, and have the same qualifications, as
Members of the Legislature. The delegates so elected shall meet within three months after their election at such
place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in such manner
as the Convention may determine. The returns of such election shall, in such manner as the Convention shall
direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer, and
Secretary of State, and compare the returns so certified to him; and it shall be the duty of the Executive to
declare, by his proclamation, such Constitution, as may have been ratified by a majority of all the votes cast at
such special election, to be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of twothirds 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 twothirds 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 twothirds of all the members elected to each House, such proposed amendment or amendments shall be
entered on their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such
proposed amendment or amendments to be published three months before the next general election in at least
three newspapers in each County in which such newspaper shall be published; and if in the General Assembly
next after the said election such proposed amendment or amendments shall upon yea and nay vote be agreed to
by twothirds 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 twothirds 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 fortyone delegates, one of whom shall be chosen from
each Representative District by the qualified electors thereof, and two of whom shall be chosen from New Castle
County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The
delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their
election. Every delegate shall receive for his services such compensation as shall be provided by law. A majority
of the Convention shall constitute a quorum for the transaction of business. The Convention shall have the power
to appoint such officers, employees and assistants as it may be deem necessary, and fix their compensation, and
provide for the printing of its documents, journals, debates and proceedings. The Convention shall determine the
rules of its proceedings, and be the judge of the elections, returns and qualifications of its members. Whenever
there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect,
ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the Governor,
and such vacancy shall be filled by the qualified electors of such district or county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or at any
special or extraordinary 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 threefifths of the members elected to each house, it shall
be entered upon their respective journals with the yeas and nays and published in one newspaper in each county
where a newspaper is published for two times, one publication to be made not earlier than ten weeks and the
other not later than six weeks, immediately preceding the election at which the same is to be voted upon, and
thereupon submitted to the electors of the State for approval or rejection at the next general election, provided,
however, that such revision or amendment may be submitted for approval or rejection in a special election under
the conditions described in and in the manner provided by Section 3 of Article XVII of the Constitution. If a majority
of the electors voting upon the amendment adopt such amendment the same shall become a part of this
Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of twothirds of all the members of
both Houses, shall determine that a revision of this Constitution is necessary, such determination shall be entered
upon their respective Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in
one newspaper in every county in which a newspaper is published, for three months preceding the next general
election of Representatives, and in those countries where no newspaper is published, notice shall be given by
posting at the several polling precincts in such counties for six weeks next preceding said election. The electors at
said election may vote for or against the revision in question. If a majority of the electors so voting be in favor of
revision, the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution,
said Convention to be held within six months after the passage of such law. The Convention shall consist of a
number equal to the membership of the House of Representatives, and shall be apportioned among the several
counties in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislature, and if the same shall be agreed to by twothirds of all the members of
each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and
nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, and cause the same to be published without
delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of the general
circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever twothirds of the members elected to each branch of
the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all
the electors voting at said election shall have voted for a convention, the legislature shall at the next session
provide by law for calling the same; and such convention shall consist of a number of members, not less than
double the number of the most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and seventy, and in
each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question,
"Shall there be a Convention to revise the Constitution, and amend the same?" shall be decided by the electors
qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting
at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the
General Assembly, at its next session, shall provide by law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any amendment or
amendments to this constitution may be proposed in the senate or house of representatives. If the same shall be
agreed to by 2/3 of the members elected to each house, such amendment or amendments shall be entered on
the journals, respectively, with the yeas and nays taken thereon; and the same shall be submitted to the electors
at the next spring or autumn election thereafter, as the legislature shall direct; and, if a majority of the electors
qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or
amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the year 1961, in
each sixteenth year thereafter and at such times as may be provided by law, the question of a General Revision
of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. In case a
majority of the Electors voting on the question shall decide in favor of a Convention for such purpose, at an
Election to be held not later than four months after the Proposal shall have been certified as approved, the
Electors of each House of Representatives District as then organized shall Elect One Delegate for each Electors
of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District
is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next
succeeding such election, and shall continue their sessions until the business of the convention shall be
completed. A majority of the delegates elected shall constitute a quorum for the transaction of business. ... No
proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval
as hereinafter provided unless by the assent of a majority of all the delegates elected to the convention, the yeas
and nays being entered on the journal. Any proposed constitution or amendments adopted by such convention
shall be submitted to the qualified electors in the manner provided by such convention on the first Monday in April
following the final adjournment of the convention; but, in case an interval of at least 90 days shall not intervene
between such final adjournment and the date of such election. Upon the approval of such constitution or
amendments by a majority of the qualified electors voting thereon such constitution or amendments shall take
effect on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid. Whenever a
majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution, they may
proposed such alterations or amendments, which proposed amendments shall be published with the laws which
have been passed at the same session, and said amendments shall be submitted to the people for their approval
or rejection at any general election, and if it shall appear, in a manner to be provided by law, that a majority of all
the electors voting at said election shall have voted for and ratified such alterations or amendments, the same
shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amendments
shall be submitted at the same time, it shall be so regulated that the voters shall vote for or against each
separately.
Sec. 2. Revision of constitution. Whenever twothirds 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 threefifths 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 twothirds of
the Members elected to each house, shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for
or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have
voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a
Convention to be holden within six months after the passage of such law, and such Convention shall consist of a
number of Members not less that of both branches of the legislature. In determining what is a majority of the
electors voting such election, reference shall be had to the highest number of vote cast at such election for the
candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of the several
towns and places in this state, in warning the first annual meetings for the choice of senators, after the expiration
of seven years from the adoption of this constitution, as amended, to insert expressly in the warrant this purpose,
among the others for the meeting, to wit, to take the sense of the qualified voters on the subject of a revision of
the constitution; and, the meeting being warned accordingly, and not otherwise, the moderator shall take the
sense of the qualified voters present as to the necessity of a revision; and a return of the number of votes for and
against such necessity, shall be made by the clerk sealed up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such return, that the sense of the people of the state has
taken, and that, in the opinion of the majority of the qualified voters in the state, present and voting at said
meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a
convention for that purpose, otherwise the general court shall direct the sense of the people to be taken, and then
proceed in the manner before mentioned. The delegates to be chosen in the same manner, and proportioned, as
the representatives to the general court; provided that no alterations shall be made in this constitution, before the
same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters
present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote. Any amendment or amendments to this
Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority
of all the members elected to each of the two houses, such proposed amendment or amendments shall, with
yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their
approval or rejection, at the next regular general election, except when the Legislature, by a twothirds vote of
each house, shall order a special election for that purpose. If a majority of all the electors voting at such election
shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or
against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace
more than one general subject and the voters shall vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which
embrace one general subject, each proposed article shall be deemed a single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall be called by

the Legislature to propose alterations, revisions, or amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention shall first be approved by the people on a referendum
vote at a regular or special election, and any amendments, alterations, revisions, or new Constitution, proposed
by such convention, shall be submitted to the electors of the State at a general or special election and be
approved by a majority of the electors voting thereon, before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may be proposed
in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members
elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the secretary of state to the people for their approval or
rejection, at the next regular election, except when the legislative assembly shall order a special election for that
purpose. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby
become a part of this Constitution. The votes for and against such amendment, or amendments, severally,
whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of state
in the presence of the governor, and if it shall appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith
after such canvass, by his proclamation, to declare the said amendment, or amendments, severally, having
received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof,
and the same shall be in effect as a part of the Constitution from the date of such proclamation. When two or
more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election,
they shall be so submitted that each amendment shall be voted on separately. No convention shall be called to
amend or propose amendments to this Constitution, or to propose a new Constitution, unless the law providing for
such convention shall first be approved by the people on a referendum vote at a regular general election. This
article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative
petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section
1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either
house of the Legislative Assembly and, if the proposed revision is agreed to by at least twothirds 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 statewide primary election, except when the Legislative
Assembly orders a special election for that purpose. A proposed revision may deal with more than one subject
and shall be voted upon as one question. The votes for and against the proposed revision shall be canvassed by
the Secretary of State in the presence of the Governor and, if it appears to the Governor that the majority of the
votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly
following the canvass, declare, by his proclamation, that the proposed revision has received a majority of votes
and has been adopted by the people as the Constitution of the State of Oregon, as the case may be. The revision
shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may be proposed in
either house of the Legislature, and if twothirds of all the members elected of the two houses, shall vote in favor
thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas
and nays taken thereon; and the Legislature shall cause the same to be published in at least one newspaper in
every county of the State, where a newspaper is published, for two months immediately preceding the next
general election, at which time the said amendment or amendments shall be submitted to the electors of the
State, for their approval or rejection, and if a majority of the electors voting thereon shall approve the same, such
amendment or amendments shall become part of this Constitution. If two or more amendments are proposed,
they shall be so submitted as to enable the electors to vote on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever twothirds of the members, elected to each branch
of the Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or against a convention, and, if a majority of all
the electors, voting at such election, shall vote for a convention. The Legislature, at its next session, shall provide
by law for calling the same. The convention shall consist of not less than the number of members in both
branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be proposed in
either branch of the legislature, and, if the same shall be agreed to by twothirds of all the members of the two
houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to
the electors of the state at the next general election, in at least one newspaper of general circulation, published in
each county, and if a majority of the electors shall ratify the same, such amendment or amendments shall become
a part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such manner that the
electors shall vote for or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever twothirds of the members elected to each branch of
the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or against a convention, and if a majority of all
the electors voting at such election shall have voted for a convention, the legislature shall at the next session
provide by a law for calling the same; and such convention shall consist of a number of members, not less than
double that of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it has been
submitted to and adopted by the people.
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima
facie case in their petitions to justify their being given due course. Considering on the one hand the urgency of the
matter and on the other hand its transcendental importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required them to submit their comments on the
petitions. After the comments were filed We considered them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days, morning and afternoon, and could not have been more
exhaustive if the petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the
President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let alone a valid one, of the
proposed Constitution, because it was not in accordance with the existing Constitution (of 1935) and the Election
Code of 1971. Other grounds are relied upon by the petitioners in support of their basic proposition, but to our
mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint
session or by a Convention called by it for the purpose) "shall be valid part of this Constitution when approved by
a majority of votes cast at an election at which the amendments submitted to the people for their ratification." At
the time Constitution was approved by the Constitutional Convention on February 8, 1935, and ratified in a
plebiscite held on following May 14, the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute ascertaining the
people's choices among candidates for public offices, or their will on important matters submitted to the pursuant
to law, for approval. It was in this sense that word was used by the framers in Article XV (also in Articles VI and
VII), and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935
as well as the subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940
(establishment of a bicameral legislature; eligibility of the President and the Vice President for re election; creation
of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the House of
Representatives and eligibility of members of Congress to run for the Constitutional Convention without forfeiture
of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code." This is a statutory requirement designed, as
were the other election laws previously in force, to carry out the constitutional mandate relative to the exercise of
the right suffrage, and with specific reference to the term "plebiscites," the provision of Article XV regarding
ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof.
Section 99 requires that qualified voters be registered in a permanent list, the qualifications being those set forth
in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence. These
qualifications are reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of persons
disqualified to vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for
registering voters, the records, of registration and the custody thereof, the description and printing of official
ballots, the actual casting of votes and their subsequent counting by the boards of inspectors, the rules for
appreciation of ballots, and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances should
be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No.
2 passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election at which they are submitted
to the people for their ratification pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the
Constitution of nineteen hundred and thirtyfive 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. L34150, 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 twentyone to eighteen
years and was approved by the Convention for submission to a plebiscite ahead of and separately from other
amendments still being or to be considered by it, so as to enable the youth to be thus enfranchised to participate
in the plebiscite for the ratification of such other amendments later. This Court held that such separate submission
was violative of Article XV, Section 1, of the Constitution, which contemplated that "all the amendments to be
proposed by the same Convention must be submitted to the people in a single "election" or plebiscite." * Thus a
grammatical construction based on a singular, instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite
which had been called to ratify a proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of just one amendment, as in Tolentino
vs. COMELEC, but the ratification of an entire charter setting up a new form of government; and the issue has
arisen not because of a disputed construction of one word or one provision in the 1935 Constitution but because
no election or plebiscite in accordance with that Constitution and with the Election Code of 1971 was held for the
purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution were created by Presidential Decree No.
86 dated December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford
ample opportunities for the citizenry to express their views on important national issues." The Assemblies "shall
consist of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the
barrio, district or ward secretary." By Presidential Decree No. 86A, 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 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 plebiscite which he had called for January 15, 1973 (Presidential Decree No. 73) for the
ratification of the Constitution, and that he was considering two 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 plebiscite was reworded as follows: "Do you like
the plebiscite to be held later?" The implication, it may likewise be noted, was that the Assemblies should express
their views as to 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:
national interest?
(2) Do you approve of the new Constitution?
(4) Do you want the elections to be held in November, 1973 accordance with the provisions of the
1935 Constitution?
(5) If the elections would not be held, when do you want the next elections to be called?
(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied].
Appended to the six additional questions above quoted were the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
QUESTION No. 2
QUESTION No. 3
New Constitution.
QUESTION No. 4
QUESTION No. 5
QUESTION No. 6
accomplish all his reform program and establish normalcy in the country. If all other
the lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion was broached,
for the first time, that the plebiscite should be done away with and a favorable vote by the Assemblies deemed
equivalent ratification. This was done, not in the questionnaire itself, but in the suggested answer to question No.
3. Strangely, however, it was not similarly suggested that an unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was conducted in the
Citizen Assemblies, assuming that such voting was held, was not within the intendment of Article XV, Section 1, of
the 1935 Constitution nor in accordance with the Election Code of 1971. The referendum can by no means be
considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the draft
Constitution itself, or as the election intended by Congress when it passed Resolution No. 2 on March 16, 1967
calling a Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to
qualified, let alone registered voters, but included all citizens from the age of fifteen, and regardless of whether or
not they were illiterates, feebleminded, or ex convicts * — these being the classes of persons expressly disqualified from voting by
Section 102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should
participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of the essential
features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures was
prescribed or followed. The Commission on Elections, which is the constitutional body charged with the enforcement and administration of all laws relative to
the conduct of elections, took no part at all, either by way of supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the
members of the Citizens Assemblies had voted for the adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971.
The suggestion misses the point entirely. It is of the essence of a valid exercise of the right of suffrage that not
only must a majority or plurality of the voters carry the day but that the same must be duly ascertained in
accordance with the procedure prescribed by law. In other words the very existence of such majority or plurality
depends upon the manner of its ascertainment, and to conclude that it exists even if it has not been ascertained
according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for noncompliance 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 nonjusticiable, 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 L36165), in their respective capacities as
President and President Pro Tempore of the Senate of the Philippines, and through their counsel, Senator Arturo
Tolentino, likewise invoke the political question doctrine, but on a ground not concurred in by the Solicitor General,
namely, that approval of the 1973 Constitution by the people was made under a revolutionary government, in the
course of a successful political revolution, which was converted by act of the people to the present de jure
government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the
assumption, conceded by all, that the Constitution was in full force and effect, with the power and authority of the
entire Government behind it; and the task of this Court was simply to determine whether or not the particular act
or statute that was being challenged contravened some rule or mandate of that Constitution. The process
employed was one of interpretation and synthesis. In the cases at bar there is no such assumption: the
Constitution (1935) has been derogated and its continued existence as well as the validity of the act of derogation
is issue. The legal problem posed by the situation is aggravated by the fact that the political arms of the
Government — the Executive Departments and the two Houses of Congress — have accepted the new
Constitution as effective: the former by organizing themselves and discharging their functions under it, and the
latter by not convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and
in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in
accordance with Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and
restated at same length if only because it would constitute, if sustained, the most convenient ground for the
invocation of the politicalquestion 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 CommanderinChief of all the Armed Forces of the Philippines." By this order, it is pointed
out, the CommanderinChief 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. 3A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is
averred, was the culminating act of the revolution, which thereupon converted the government into a de jure one
under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification
as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the
issue of whether or not that Constitution has become effective and, as necessary corollary, whether or not the
government legitimately functions under it instead of under the 1935 Constitution, is political and therefore non
judicial in nature. Under such a postulate what the people did in the Citizen Assemblies should be taken as an
exercise of the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be the least doubt that their act would be
political and not subject to judicial review but only to the judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government gains authority and dominance through force, it can be
effectively challenged only by a stronger force; judicial dictum can prevail against it. We do not see that situation
would be any different, as far as the doctrine of judicial review is concerned, if no force had been resorted to and
the people, in defiance of the existing Constitution but peacefully because of the absence of any appreciable
opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such
a reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but
leave it to be decided through political means.
The logic of the politicalquestion doctrine is illustrated in statement of the U.S. Supreme Court in a case * relied
upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue
of which of two opposing governments struggling for supremacy in the State of Rhode Island was the lawful one. The issue had previously come up in
several other cases before the courts of the State, which uniformly held that the inquiry belonged to the political power and not to the judicial. Commenting
on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case, and should come to
the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and
incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone
in order to be able to decide at all, the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the cases at bar only
on the premise that the ratification of the Constitution was a revolutionary act and that the government now
functioning it is the product of such revolution. However, we are not prepared to agree that the premise is
justified.
In the first, place, with specific reference to the questioned ratification, several significant circumstances may be
noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base
of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express
their views on important national issues." (2) The President announced, according to the Daily Express of January
2, 1973, that "the referendum will be in the nature of a loose consultation with the people." (3) The question, as
submitted to them on the particular point at issue here, was "Do you a approve of the Constitution?" (4) President
Marcos, in proclaiming that the Constitution had been ratified, stated as follows: "(S)ince the referendum results
show that more than ninetyfive (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 noncompliance with
the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess
that after considering all the available evidence and all the relevant circumstances we have found no reasonably
reliable answer to the question. On one hand we read, for instance, the following public statements of the
President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our people.
We have committed ourselves to this revolution. We have pledged to it our future, our fortunes, our
lives, our destiny. We have burned our bridges behind us. Let no man misunderstand the strength of
our resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said the following,
among other things:
... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable matters,
on matters that may come before the experts and interpreters of the law. But we cannot disqualify
the people from speaking on what we and the people consider purely political matters especially
those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly those that refer to the form of
government which the people want ... The implications of disregarding the people's will are too
awesome to be even considered. For if any power in government should even dare to disregard the
people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer tolerate any
attempt to undermine the stability of their Republic; they will rise up in arms not in revolt against the
Republic but in protection of the Republic which they have installed. It is quite clear when the people
say, we ratify the Constitution, that they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day before, from which
the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary concessions to
traditional democratic process to hold back our people's clear and unequivocal resolve and mandate
to meet and overcome the extraordinary challenges presented by these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed reference to "the
demand of some of our citizens ... that when all other measures should fail, that the President be directed to
organize and establish a Revolutionary Government," but in the next breath added: "... if we do ratify the
Constitution, how can we speak of Revolutionary Government? They cannot be compatible ..." "(I)t is my feeling,"
he said, "that the Citizens' Assemblies which submitted this recommendation merely sought articulate their
impatience with the status quo that has brought about anarchy, confusion and misery to the masses ..." The only
alternatives which the President clearly implied by the foregoing statements were the ratification of the new
Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely,
a return to the 1935 Constitution, for it was the status quo under that Constitution that had caused "anarchy,
confusion and misery." The message seems clear: rather than return to such status quo, he would heed the
recommendation of the Citizens' Assemblies to establish a revolutionary government, because that would be the
only other way to carry out the reforms he had envisioned and initiated — reforms which, in all fairness and
honesty, must be given credit for the improved quality of life in its many aspects, except only in the field of civil
liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection with the ratification of the Constitution was meant to be
irreversible, and that nothing anyone could say would make the least difference. And if this is a correct and
accurate assessment of the situation, then we would say that since it has been brought about by political action
and is now maintained by the government that is in undisputed authority and dominance, the matter lies beyond
the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has professed
fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and social change ...
but that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in the President by the
Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions. The Government of the Republic
of the Philippines which was established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and
reform our society...
I have had to use this constitutional power in order that we may not completely lose the civil rights
and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the stronger powers of the
Constitution.
(Vital Documents, pp. 112; emphasis supplied).
In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of
January 29, 1973), the following appears:
x x x x x x x x x
Q. Now that you have gotten off the constitutional track, won't you be in serious trouble if
you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am doing is in accordance
with the 1935 Constitution. The only thing is that instead of 18yearolds voting, we have
allowed 15yearolds the right to vote. But the 15yearolds of today are highschool
students, if not graduates, and they are better informed than my contemporaries at that
age. On the matter of whether it is constitutional to proclaim martial law, it is
constitutional because the Constitution provides for it in the event of invasion,
insurrection, rebellion or immediate danger thereof. We may quarrel about whether what
we have gone through is sufficient cause to proclaim martial law but at the very least
there is a danger of rebellion because so many of our soldiers have been killed. You
must remember this (martial law provision) was lifted from the American legislation that
was the fundamental law of our country.
x x x x x x x x x
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the President.
We have earlier made reference to subjective factors on which this Court, to our mind, is in no position to pass
judgment. Among them is the President's own assessment of the will of the people as expressed through the
Citizens Assemblies and of the importance of the 1973 Constitution to the successful implementation of the social
and economic reforms he has started or envisioned. If he should decide that there is no turning back, that what
the people recommended through the Citizens Assemblies, as they were reported to him, demand that the action
he took pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935
Constitution and related statutes, we have discharged our sworn duty as we conceive it to be. The President
should now perhaps decide, if he has not already decided, whether adherence to such procedure is weighty
enough a consideration, if only to dispel any cloud of doubt that may now and in the future shroud the nation's
Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution,
since its submission to the Citizens Assemblies, has found acceptance among the people, such issue being
related to the political question theory propounded by the respondents. We have not tarried on the point at all
since we find no reliable basis on which to form a judgment. Under a regime of martial law, with the free
expression of opinions through the usual media vehicles restricted, we have no means of knowing, to the point of
judicial certainty, whether the people have accepted the Constitution. In any event, we do not find the issue
decisive insofar as our vote in these cases is concerned. To interpret the Constitution — that is judicial. That the
Constitution should be deemed in effect because of popular acquiescence — that is political, and therefore
beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of the Supplemental
Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by
this Court on January 22, 1978. Of course, there are amplifications of some of the grounds previously alleged and
in the course of the unprecedented fiveday hearing that was held from February 12 to 16 last, more extensive
and illuminating arguments were heard by Us, but, in my estimation, and with due recognition of the sincerety,
brilliance and eloquence of counsels, nothing more cogent and compelling than what had already been previously
presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason why I should change the
position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these petitions were
initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the significance to our
people and in history of the individual stands of the members of the Court in relation to said issues and to the final
outcome of these cases, and considering that I reserved before the filing of a more extended opinion, I will take
this opportunity to explain further why I hold that the 1973 Constitution is already in force, if only to clarify that
apart from the people's right of revolution to which I made pointed reference in my previous opinion, I can see
now, after further reflection, that the vote of the people in the referendum in the Citizens Assemblies held on
January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more importantly as
a political act than as a purely legal one with the result that such vote to consider the 1973 Constitution as ratified
without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935 of
the Constitution itself, 1937 of women's suffrage, 1939 of the amendments to the Ordinance Appended to the
Constitution, 1940 of the reelection of the President, the bicameral legislature and the Commission on Elections,
1947 of the parity amendment and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed as a
valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed
this explanation may be considered as a modification of my rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the enforceability of the new Constitution is even firmer now than
ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction
that the best interests of all concerned would be best served by the Supreme Court holding that the 1973
Constitution is now in force, not necessarily as a consequence of the revolutionary concept previously suggested
by me, but upon the ground that as a political, more than as a legal, act of the people, the result of the
referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution.
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 secondreading voting only on an insignificant number of proposals — until
September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proclamation 1081
declaring martial law throughout the country. An attempt was made to have the Convention recessed until after
the lifting of martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the
activities within the assembly shifted to high gear. As if unmindful of the arrest and continued detention of several
of its members, the convention gathered swift momentum in its work, and on November 30, 1972, it approved by
overwhelming vote the draft of a complete constitution, instead of mere specific amendments of particular
portions of the Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited
coverage of the workings in the convention by the mass media. At the same time, public debates and discussions
on various aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President Ferdinand
Marcos that a decree be issued calling a plebiscite for ratification of the proposed new Constitution on appropriate
date as he shall determine and providing for necessary funds therefor." Acting under this authority, December 1,
1972, the President issued Presidential Decree No. 73 submitting the draft constitution for ratification by the
people at a plebiscite set for January 15, 1973. This order contained provisions more or less similar to the
plebiscite laws passed by Congress relative to the past plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the
authorities to allow and encourage public and free discussions on proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the President ordered the suspension the effects of martial law
and lifted the suspension of privilege of the writ of habeas corpus insofar as activities connected with the
ratification of the draft constitution were concerned. These two orders were not, however, to last very long. On
January 7, 1973, the President, invoking information related to him that the area of public debate and discussion
had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes
for which they were issued and to foment public confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86 creating Citizens
Assemblies "so as to afford ample opportunities for the citizenry to express their views on important national
issues" and one of the questions presented to said assemblies was: "Do you like the plebiscite on the proposed
Constitution to be held later" So, the same order of January 7, 1973, General Order No. 20, the President
ordered, "that the plebiscite scheduled to be held January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86A providing as
follows:
PRESIDENTIAL DECREE NO. 86A
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 daytoday lives and their
future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for
WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due
WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on
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
2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the
government;
3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
results thereof to the Department of Local Governments Community Development immediately
thereafter, pursuant to express will of the people as reflected in the reports gathered from the many
thousands of barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86B reading thus:
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for
resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission
of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite
in itself in view of the fact that freedom of debate has always been limited to the leadership in
political, economic and social fields, and that it is now necessary to bring this down to the level of the
people themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
in me vested by the Constitution, do hereby order that important national issues shall from time to
time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86A 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
seventythree.
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:
national interests?
(2) Do you approve of the New Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished "comments" on the said
questions more or less suggestive of the answer desired. It may assumed that the said "comments" came from
official sources, albeit specifically unidentified. As petitioners point out, the most relevant of these "comments"
were the following:
COMMENTS ON
x x x x x x x x x
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is to be convened at
QUESTION No. 3
New Constitution.
If the Citizens Assemblies approve of the new Constitution then the new Constitution
The Solicitor General claims, and there seems to be showing otherwise, that the results of the referendum were
determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of Local Governments.
The transmission of the results was made by telegram, telephone, the provincial government SSB
System in each province connecting all towns; the SSB communication of the PACD connecting most
provinces; the Department of Public Information Network System; the Weather Bureau
Communication System connecting all provincial capitals and the National Civil Defense Network
connecting all provincial capitals. The certificates of results were then flown to Manila to confirm the
previous figures received by the aforementioned means of transmission. The certificates of results
tallied with the previous figures taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies
operation at the Department wherein the identity of the barrio and the province was immediately
given to a staff in charge of each region. Every afternoon at 2:00 o'clock, the 11 regions submitted
the figures they received from the field to the central committee to tabulate the returns. The last
figures were tabulated at 12 midnight of January 16, 1973 and early morning of January 17, 1973
and were then communicated to the President by the Department of Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January 17, 1973. Said
proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventyone Constitutional
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizen to express their
views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86A,
dated January 5, 1973, the following questions were posed before Citizens' Assemblies or
WHEREAS, fourteen million nine hundred seventysix thousand five hundred sixty one (14,976,561)
Constitution, as against seven hundred fortythree thousand eight hundred sixty nine (743,869) who
plebiscite to be called to ratify the new Constitution fourteen million two hundred ninetyeight
thousand eight hundred fourteen (14,298,814) answered that there was no need for plebiscite and
WHEREAS, since the referendum results show that more than ninetyfive (95) percent of the
members of the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan
ratified by an overwhelmingly majority of all of the votes cast by the members of all the Barangays
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
seventythree.
The first attempt to question the steps just enumerated taken by the President was in the socalled Plebiscite
Cases, ten in number, which were filed by different petitioners during the first half of December 1972.1 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. 86A, quoted above. And
when Presidential Decree No. 86B, also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the "comments", petitioners sensed that a new and
unorthodox procedure was being adopted to secure approval by the people of the new Constitution, hence
Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases
dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and
injunction of the proceedings going on. Principal objective was to prevent that the President be furnished the
report of the results of the referendum and thereby disable him from carrying out what petitioners were
apprehensively foreseeing would be done — the issuance of some kind of proclamation, order or decree,
declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same day,
January 15, which was Monday, to consider the supplemental motion as a supplemental petition and to require
the respondents to answer the same the next Wednesday, January 17th, before the hour of the hearing of the
petition which set for 9:30 o'clock in the morning of that day. The details what happened that morning form part of
the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973 and need not be
repeated here. Suffice it to state no that before the hearing could be closed and while Counsel Tañada was still
insisting on his prayer for preliminary injunction or restraining order, the Secretary of Justice arrived and
personally handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00 o'clock
that same morning. In other words, the valiant and persistent efforts of petitioners and their counsels were
overtaken by adverse developments, and in the mind of the majority of the members of the Court, the cases had
become academic. For my part, I took the view that even on the basis of the supplemental petition and the
answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's
pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for
lack, according them, of full ventilation, and so, the decision reserved petitioners the filing of the "appropriate"
cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by my
learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino
for respondent Gil J. Puyat and Jose Roy, who have been sued as President and President Pro Tempore of the
Senate, to the effect that change in the composition of the Supreme Court provided for the 1973 Constitution,
from the 11man tribunal under the 1935 Constitution to a 15man Court, makes of these cases which were filed
after January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified, political nature
and beyond our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to
ten for the declaration of unconstitutionality of a treaty, executive agreement2 or law, the Court would have to
resolve first as a prejudicial question whether the Court is acting in these cases as the 15man or the 11man
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 15Man or the 11man 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 11man 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 86A and 86B and related orders of the President as not being in conformity with Article XV
of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our decision dismiss these
cases, even if we have it understood that by the vote of justices in favor of such dismissal, We intended to mean
the implementation or enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to speculation. By nature I am averse to
ambiguity and equivocation and as a member of the Supreme Court, last thing I should knowingly countenance is
uncertainty as to the juridical significance of any decision of the Court which is precisely being looked upon as the
haven in which doubts are supposed to be authoritatively dispelled. Besides, from very nature of things, one thing
is indubitably beyond dispute — we cannot act in both capacities of a 15man and an 11man Court at the same
time, in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in
force. Our inescapable duty is to make a choice between them, according to what law and other considerations
inherent to our function dictate. I cannot bear the thought that someone may someday say that the Supreme
Court of the Philippines once decided a case without knowing the basis of its author to act or that it was ever
wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to
straighten out this grave of issue touching on the capacity in which the Court acting in these cases, I hold that we
have no alternative but adopt in the present situation the orthodox rule that when validity of an act or law is
challenged as being repugnant constitutional mandate, the same is allowed to have effect until the Supreme
Court rules that it is unconstitutional. Stated differently, We have to proceed on the assumption that the new
Constitution is in force and that We are acting in these cases as the 15man Supreme Court provided for there
Contrary to counsel's contention, there is here no prejudgment for or against any of the two constitutions. The
truth of matter is simply that in the normal and logical conduct governmental activities, it is neither practical nor
wise to defer the course of any action until after the courts have ascertained their legality, not only because if that
were to be the rule, the functioning of government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the first instance accord due respect to the acts
of the other departments, as otherwise, the smooth running of the government would have to depend entirely on
the unanimity of opinions among all its departments, which is hardly possible, unless it is assumed that only the
judges have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which
is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world that
has recognized judicial supremacy as its basic governmental principle, no matter how desirable we might believe
the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this Court is still
functioning under the 1935 Constitution. It is undeniable that the whole government, including the provincial,
municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is operating under the
1973 Constitution. Almost daily, presidential orders and decrees of the most legislative character affecting
practically every aspect of governmental and private activity as well as the relations between the government and
the citizenry are pouring out from Malacañang under the authority of said Constitution. On the other hand, taxes
are being exacted and penalties in connection therewith are being imposed under said orders and decrees.
Obligations have been contracted and business and industrial plans have been and are being projected pursuant
to them. Displacements of public officials and employees in big numbers are going on in obedience to them. For
the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments,
which even unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings within the judiciary amount its different
components, what with the lower courts considering such orders and decrees as forming part of the law of the
land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at
bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the Supreme Court,
and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait
for its decision. Accepting the truth of this assertion, it does necessarily follow that by this attitude of the President,
considers the Supreme Court as still operating under the Constitution. Quite on the contrary, it is a fact that he
has given instructions for the payment of the justices in accordance with the rate fixed in the New Constitution.
Not only that, official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all
matters related to the administrative supervision of the lower courts which by the new charter has been
transferred from the Department of Justice to the Supreme Court, and as far as I know, President has not
countermanded the Secretary's steps in that direction. That, on the other hand, the President has not augmented
the justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence
considering that with the presence of ten justices who are the Court now, there is a working quorum, and the
addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because,
while there sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the votes of the
justices to added would only be committed to upholding the same, since they cannot by any standard be expected
to vote against legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We are dealing
here with a whole constitution that radically modifies or alters only the form of our government from presidential
parliamentary but also other constitutionally institutions vitally affecting all levels of society. It is, to mind,
unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935 Constitution, with a few
improvements. A cursory perusal of the former should convince anyone that it is in essence a new one. While it
does retain republicanism as the basic governmental tenet, the institutional changes introduced thereby are
rather radical and its social orientation is decidedly more socialistic, just as its nationalistic features are somewhat
different in certain respects. One cannot but note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity clauses, involving as they do the statement of
general principles, the citizenship and suffrage qualifications, the articles on the form of government, the judiciary
provisions, the spelling out of the duties and responsibilities not only of citizens but also of officers of the
government and the provisions on the national economy as well as the patrimony of the nation, not to mention the
distinctive features of the general provisions. What is more, the transitory provisions notably depart from
traditional and orthodox views in that, in general, the powers of government during the interim period are more or
less concentrated in the President, to the extent that the continuation or discontinuance of what is now practically
a onemanrule, 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 thirtyfive and all amendments thereto" and (2) its transitory provisions expressly continue the
effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials, not adversely affected
by it, which would have been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the Judiciary
(which include the Chief Justice and Associate Justices of Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc." By virtue of the presumptive validity of the new
charter, all of form part of the 15manCourt provided for therein correspondingly, We have in legal contemplation,
ceased in the meanwhile to be members of the 11manCourt in the 1935 Constitution. Should the Court finally
decide that the Constitution is invalid, then We would automatically revert to our positions in the 11man Court,
otherwise, We would just continue to be in our membership in the 15manCourt, unless We feel We cannot in
conscience accept the legality of existence. On the other hand, if it is assumed that We are the 11manCourt 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 15manCourt, since that would tantamount
to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the
1973 Constitution it purports to declare as having taken place as a result of the referendum abovereferred to is
ineffective since it cannot be said on the basis of the said referendum that said Constitution has been "approved
by a majority of the votes cast at an election" in the manner prescribed by Article XV the Constitution of 1935.
More specifically, they maintain that the word "election" in the said Article has already acquired a definite accepted
meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no other form of
ratification can be considered contemplated by the framers of the Old Constitution than that which had been
followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the supervision of
the Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the
referendum because, according to them the referendum was a farce and its results were manufactured or
prefabricated, considering that Mr. Francisco Cruz, who is supposed to have submitted the final report to the
President, which served as basis for Proclamation 1102, had no official authority to render the same, and it is
inconceivable and humanly impossible for anyone to have been able to gather, tabulate and canvass the 15
million votes allegedly reported within the short period of time employed. Of course, they also contend that in any
event, there was no proper submission because martial law per se creates constructive duress which deprives the
voters of the complete freedom needed for the exercise of their right of choice and actually, there was neither
time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter raised in
the petitions is a political one which the courts are not supposed to inquire into, and, anyway, there has been a
substantial compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of
form, the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New
Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite Cases,
I already made the observation that in view of the lack of solemnity and regularity in the voting as well as in the
manner of reporting and canvassing conducted in connection with the referendum, I cannot say that Article XV of
the Old Constitution has been complied with, albeit I held that nonetheless, the Constitution of 1973 is already in
force. In order, however, to make myself clearer on some relevant points, I would like to add a few considerations
to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face of the Presidential
certification through Proclamation 1102 itself that the New Constitution has been approved by a majority of the
people and having in mind facts of general knowledge which I have judicial notice of, I am in no position to deny
that the result of the referendum was as the President had stated. I can believe that the figures referred to in the
proclamation may not accurate, but I cannot say in conscience that all of them are manufactured or prefabricated,
simply because I saw with own eyes that people did actually gather and listen discussions, if brief and inadequate
for those who are abreast of current events and general occurrences, and that they did vote. I believe I can safely
say that what I have seen have also been seen by many others throughout the country and unless it can be
assumed, which honestly, I do not believe to be possible, that in fact there were actually no meetings held and no
voting done in more places than those wherein there were such meetings and votings, I am not prepared to
discredit entirely the declaration that there was voting and that the majority of the votes were in favor of the New
Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my
estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens Assemblies was to
be in the nature merely of a loose consultation and not an outright submission for purposes of ratification. I can
see that at the outset, when the first set of questions was released, such may have been the idea. It must not be
lost sight of, however, that if the newspaper reports are to be believed, and I say this only because petitioners
would consider the newspapers as the official gazettes of the administration, the last set of six questions were
included precisely because the reaction to the idea of mere consultation was that the people wanted greater
direct participation, thru the Citizens Assemblies, in decisionmaking regarding matters of vital national interest.
Thus, looking at things more understandingly and realistically the two questions emphasized by counsel, namely,
(1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to ratify the new
Constitution? should be considered no longer as loose consultations but as direct inquiries about the desire of the
voters regarding the matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of the
new Constitution, the logical consequence would have been the complete abandonment of the idea of holding any
plebiscite at all. On the other hand, it is very plain to see that since the majority has already approved the new
Constitution, a plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought
that if the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding the nonholding
of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new Constitution.
Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it turned out,
the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made of the point that
as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus — Do you approve the New Constitution? The
contention would have been weighty were it not unrealistic. I remember distinctly that the observation regarding
the construction of the subject question was not originally made by any of the talented counsels for petitioners. It
came from Mr. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy
of even professors of English. None of the other members of the Court, as far as I can recall, ever noticed how
the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention.
What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court
understood the said question otherwise than calling for a factual answer instead of a mere opinion, how could
anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought
out by Justice Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis.
Besides, reading the question in the light of the accompanying "comment" corresponding to it in particular, I am
certain that any one who answered the same understood it in no other sense than a direct inquiry as to whether
or not, as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be taken as a
categorical vote of approval thereof, considering, particularly, that according to the reported result of the
referendum said answer was even coupled with the request that the President defer the convening of the Interim
National Assembly.
It is also contended that because of this reference in answer to that question to the deferment of the convening of
the interim assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of
ratification plebiscite. The contention has no basis. In interest of accuracy, the additional answer proposed in
pertinent "comment" reads as follows: "But we do not want Ad Interim Assembly to be convoked etc." On the
assumption that the actual answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a
condition. At most, the intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was declared, the circumstances
surrounding making of the Constitution acquired a different and more meaningful aspect, namely, the formation of
a new society. From the point of view of the President and on the basis of intelligence reports available to him, the
only way to meet situation created by the subversive elements was to introduce immediately effective reforms
calculated to redeem the people from the depth of retrogression and stagnation caused by rampant graft and
corruption in high places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the so inequalities widening the gap between the rich and the poor, and many
other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of rebellious
movement that threatened the Quirino Administration, the remedy was far from using bullets alone. If a
constitution was to be approved as an effective instrument towards the eradication of such grave problems, it had
to be approved without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have
in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the context of
actualities, the evident objective in having a new constitution is to establish new directions in the pursuit of the
national aspirations and the carrying out of national policies. Only by bearing these considerations in mind can the
"comments" already referred to be properly appreciated. To others said "comments" may appear as evidence of
corruption of the will of those who attended the assemblies, but actually, they may also be viewed in the same
light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se
means of coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas
are not generally possible, nor practical, considering the need for faster decisions and more resolute action. After
all voting on a whole new constitution is different from voting on one, two or three specific proposed amendments,
the former calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily,
one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only because of a
few specific objectionable features, no matter how substantial, considering the ever present possibility that after
all it may be cured by subsequent amendment. Accordingly, there was need to indicate to the people the paths
open to them in their quest for the betterment of their conditions, and as long as it is not shown that those who did
not agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any appreciable difference in the court's appraisal
of the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow from the value that
the referendum would otherwise have had. As I intimated, however, in my former opinion, it is not fair to condemn
and disregard the result of the referendum barely because of martial law per se. For one thing, many of the
objectionable features of martial law have not actually materialized, if only because the implementation of martial
law since its inception has been generally characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style", which means without the rigor that has attended
it in other lands and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects on the area of information which should
be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercise of discretion is
suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and correctly
vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less
incomplete, but when he is subject to arrest and detention without investigation and without being informed of the
cause thereof, that is something else which may actually cause him to cast a captive vote. Thus it is the
suspension of the writ of habeas corpus accompanying martial law that can cause possible restraint on the
freedom choice in an election held during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that only those who run afoul the law, saving
inconsequential instances, have any cause for apprehension in regard to the conduct by them of the normal
activities of life. And so it is recorded that in the elections 1951 and 1971, held while the privilege of writ of habeas
corpus was under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping
victories, in defiance of the respective administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum may
considered as sufficient basis for declaring that the New Constitution has been ratified in accordance with the
amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I may, certain impression regarding the general
conditions obtaining during and in relation to the referendum which could have in one way or another affected the
exercise of the freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the end
that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by the people
of the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And on this
premise, my considered opinion is that the Court may no longer decide these cases on the basis of purely legal
considerations. Factors which are nonlegal but nevertheless ponderous and compelling cannot be ignored, for
their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there
was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit subject for inquiry by the courts. The
ruling in the decided cases relied upon by petitioners are to this effect. In view, however, of the factual
background of the cases at bar which include ratification itself, it is necessary for me to point out that when it
comes to ratification, I am persuaded that there should be a boundary beyond which the competence of the
courts no longer has any reason for being, because the other side is exclusively political territory reserved for
their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there is not
enough indication of such acceptance in the record and in the circumstances the Court can take judicial notice of.
For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I
have already stated, that the Citizens Assemblies did meet and vote, if irregularly and crudely, it is not for me to
resort, for the purposes of these cases, to judicial tape and measure, to find out with absolute precision the
veracity of the total number of votes actually cast. After all, the claims that upon a comparison of conflicting
reports, cases of excess votes may be found, even if extrapolated will not, as far as I can figure out, suffice to
overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidence before
Us which the parties did not care to really complete, I feel safer by referring to the results announced in the
proclamation itself. Giving substantial allowances for possible error and downright manipulation, it must not be
overlooked that, after all, their having been accepted and adopted by the President, based on official reports
submitted to him in due course of performance of duty of appropriate subordinate officials, elevated them to the
category of an act of a coordinate department of the government which under the principle separation of powers
is clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome by
better evidence, which in these cases does not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any
manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on
what has been officially declared. At this point, I would venture to express the feeling that if it were not generally
conceded that there has been sufficient showing of the acceptance in question by this time, there would have
been already demonstrative and significant indications of a rather widespread, if not organized resistance in one
form or another. Much as they are to be given due recognition as magnificent manifestations of loyalty and
devotion to principles, I cannot accord to the filing of these cases as indicative enough of the general attitude of
the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41 SCRA 702, I
made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to
be valid, must appear to have been made in strict conformity with the requirements of Article XV thereof. What is
more, that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a
justiciable matter. I still believe in the correctness of those views and I would even add that I sincerely feel it
reflects the spirit of the said constitutional provision. Without trying to strain any point however, I, submit the
following considerations in the context of the peculiar circumstances of the cases now at bar, which are entirely
different from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment of a particular provision of an
existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in the case I
have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said
Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new
Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this
Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new constitution
be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of
such other constitution? In fact, in the Tolentino case I already somehow hinted this point when I made reference
in the resolution denying the motion for reconsideration to the fact that Article XV must be followed "as long as
any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even added.
"(T)his is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the
Constitution or promulgate an entirely new one otherwise.".
It is not strange at all to think that the amending clause of a constitution should be confined in its application only
to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being
adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the
idea that in such an eventuality, the new Constitution would subject its going into effect to any provision of the
constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the
New Constitution. My understanding is that generally, constitutions are selfborn, they very rarely, if at all, come
into being, by virtue of any provision of another constitution. 3 This must be the reason why every constitution has
its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum
and provided for such a method to be used in the ratification of the New Constitution, I would have had serious
doubts as to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into
consideration the forces and the circumstances dictating the replacement. From the very nature of things, the
proposal to ordain a new constitution must be viewed as the most eloquent expression of a people's resolute
determination to bring about a massive change of the existing order, a meaningful transformation of the old
society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any
question arise as to its effectivity and there is some reasonable indication that the new charter has already
received in one way or another the sanction of the people, I would hold that the better rule is for the courts to
defer to the people's judgment, so long as they are convinced of the fact of their approval, regardless of the form
by which it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the
courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should
consider the matter nonjusticiable.
3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of
the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor
the House of Representatives has been reported to have even made any appreciable effort or attempt to convene
as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must
be assumed that being composed of experienced, knowledgeable and courageous members, it would not have
been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of
the handful of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I do
not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informed the court,
there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow
officially organize themselves in a way that can logically be considered as a session, even if nothing were done
than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough
members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with
particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to
issue any call to the members to convene, hence the present prayers for mandamus have no legal and factual
bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of
24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in
writing exercised the option given to them to join the Interim National Assembly under the New Constitution,
thereby manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of the government
under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution
and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold
back the political developments taking place and for the sake of being the guardian of the Constitution and the
defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly
chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of
such a gesture that concerns me. More than that, there is the stark reality that the Senators and the
Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as
the representatives of the people, they have already opted to accept the New Constitution as the more effective
instrument for fulfillment of the national destiny, I really wonder if there is even any idealistic worth in our
desperately clinging by Ourselves alone to Our sworn duty visavis the 1935 Constitution. Conscious of the
declared objectives of the new dispensation and cognizant of the decisive steps being with the least loss of time,
towards their accomplishment, cannot but feel apprehensive that instead of serving the best interests of our
people, which to me is in reality the real meaning of our oath of office, the Court might be standing in the way of
the very thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my
conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and
Solomonic wisdom but an all rounded judgment resulting from the consideration of all relevant circumstances,
principally the political, or, in brief, a decision more political than legal, which a court can render only by deferring
to the apparent judgment of the people and the announcement thereof by the political departments of the
government and declaring the matter nonjusticiable.
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, oftreferred 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 selfevident. More, it should be regarded as implied in every
constitution that regardless of the language of its amending clause, once the people have given their sanction to a
new charter, the latter may be deemed as constitutionally permissible even from the point of view of the preceding
constitution. Those who may feel restrained to consider this view out of respect to the import of Tolentino vs.
Comelec, supra., would be well advised to bear in mind that the case was decided in the context of submission,
not accomplished ratification.
The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and
end all the nation. More important than even the Constitution itself with all its excellent features, are the people
living under it — their happiness, their posterity and their national destiny. There is nothing that cannot be
sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for national existence. The
sacred liberties and freedom enshrined in it and the commitment and consecration thereof to the forms of
democracy we have hitherto observed are mere integral parts of this totality; they are less important by
themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present petitions, the
Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts and
principles but also the qualified curtailment of individual liberties now being practiced, and this would amount, it is
feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is certainly something
one must gravely ponder upon. When I consider, however, that the President, the Vice President, the members of
both Houses of Congress, not to speak of all executive departments and bureaus under them as well as all the
lower courts, including the Court of Appeals have already accepted the New Constitution as an instrument of a
meaningful nationwidealllevel change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led
to wonder whether or not we, as members of the Supreme Court are being true to our duty to our people by
refusing to follow suit and accept the realities of the moment, despite our being convinced of the sincerity and
laudableness of their objectives, only because we feel that by the people's own act of ratifying the Constitution of
1935, they have so encased themselves within its provisions and may, therefore, no longer take measures to
redeem themselves from the situation brought about by the deficiencies of the old order, unless they act in strict
conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I consider it
a Godgiven attribute of the people to disengage themselves, if necessary, from any covenant that would obstruct
their taking what subsequently appears to them to be the better road to the promotion and protection of their
welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely, whether in
legal form or otherwise, certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Tañada and
Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel
mean that only by granting their petitions can this Court be worthily the bulwark of the people's faith in the
government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their
industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the
Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite
roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the
national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our
patriots of the recent generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them,
had their differences of views — and they did not hesitate to take diametrically opposing sides — that even
reached tragic proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any
particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution
binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the
people.
In this momentous juncture of our history, what is imperative is national unity. May God grant that the
controversies the events leading to these cases have entail will heal after the decision herein is promulgated, so
that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition without costs.
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of
constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of
Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably link with
and strikes at, because it is decisive of, the validity of ratification and adoption of, as well as acquiescence of
people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And
being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in
Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights
vested under the new Constitution, to international commitments forged pursuant thereto and to decisions
rendered by the judicial as well as quasijudicial tribunals organized and functioning or whose jurisdiction has
been altered by the 1973 Constitution and the government established thereunder, and will dissipate any
confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as
exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders
issued in implementation of the same and cooperating with the administration in the renovation of our social,
economic and political system as restructured by the 1973 Constitution and by the implementing decrees and
orders (see Miller vs. Johnson, 18 SW 522, 522526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court, defined a political
question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the
government." (Tañada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments are submitted to the people for
ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested
in Congress or in a constitutional convention; while the power to ratify or reject such proposed amendments or
new Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102 would inevitably
render inoperative the 1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L
36164. Regardless of the modality of submission or ratification or adoption — even if it deviates from or violates
the procedure delineated therefore by the old Constitution — once the new Constitution is ratified, adopted and/or
acquiesced in by the people or ratified even by a body or agency not duly authorized therefor but is subsequently
adopted or recognized by the people and by the other official organs and functionaries of the government
established under such a new Constitution, this Court is precluded from inquiring into the validity of such
ratification, adoption or acquiescence and of the consequent effectivity of the new Constitution. This is as it should
be in a democracy, for the people are the repository of all sovereign powers as well as the source of all
governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly
restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus:
"Sovereignty resides in the people and all government authority emanates from them."
The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence by the
people cures any infirmity in its submission or any other irregularities therein which are deemed mandatory before
submission as they are considered merely directory after such ratification or adoption or acquiescence by the
people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and later Associate Justice of the Federal
Supreme Court, stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two
important, vital elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are
mere machineries and forms. They may not be disregarded, because by them certainty as to the essentials is
secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59, 6164, 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 threefourths 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. (L28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs.
Comelec, et al. (L34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance — that the
courts may review the propriety of a submission of a proposed constitutional amendment before the ratification or
adoption of such proposed amendment by the sovereign people, hardly applies to the cases at bar; because the
issue involved in the aforesaid cases refers to only the propriety of the submission of a proposed constitutional
amendment to the people for ratification, unlike the present petitions, which challenge inevitably the validity of the
1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. As heretofore
stated, it is specious and pure sophistry to advance the reasoning that the present petitions pray only for the
nullification of the 1973 Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in
the general grant of legislative powers to Congress. It is part of the inherent powers of the people —
as the repository of sovereignty in a republican state, such as ours — to make, and hence, to amend
their own Fundamental Law. Congress may propose amendments to the same explicitly grants such
power. Hence, when exercising the same, it is said that Senators and Members of the House of
Representatives act, not as members, but as component elements of a constituent assembly. When
acting as such, the members of Congress derive their authority from the Constitution, unlike the
people, when performing the same function, for their authority does not emanate from the
Constitution — they are the very source of all powers of government, including the Constitution itself.
(21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both the
proposal to amend and the ratification of such a constitutional amendment are political in nature forming as they
do the essential parts of one political scheme — the amending process. WE merely stated therein that the force of
the ruling in the said case of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus, We
pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue submitted thereto as a
political one, declined to pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution — which was being submitted to the
people for ratification — satisfied the three fourths vote requirement of the fundamental law. The
force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate,
Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we
held the officers and employees of the Senate Electoral Tribunal are supervision and control, not of
that of the Senate President, claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the Senate; in the third we nullified the election,
by Senators belonging to the party having the largest number of votes in said chamber purporting to
act on behalf of the party having the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in
the fourth, we declared unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of inhabitants of each province.
Thus we rejected the theory advanced in these four (4) cases, that the issues therein raised were
political questions the determination of which is beyond judicial review. (21 SCRA pp. 785786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before acting as a constituent assembly
— violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial
review, and to the extent that this view may be inconsistent with the stand taken in Mabanag vs.
Lopez Vito, the latter should be deemed modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence by the
people in the 1973 Constitution, remains a political issue removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the
submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the legality or illegality, constitutionality or
unconstitutionality of an act: it inquires into the existence of power or lack of it. Judicial wisdom is not to be pitted
against the wisdom of the political department of the government.
The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new
Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13)
original states of the American Union — which succeeded in liberating themselves from England after the
revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the
surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p.
776) — adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and
ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of the
Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention "for the
sole and express purpose of revising the articles of confederation ... ." (Appendix I, Federalist, Modern Library
ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and
Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every state, and the union shall be
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united states, and be afterwards confirmed by the
legislatures of every state. (See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584;
emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration
for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful
the said Federal Constitution would not be ratified by the legislatures as prescribed, the Philadelphia Convention
adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the
Constitution should be submitted to elected state conventions and if ratified by the conventions in nine (9) states,
not necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have been a counsel of perfection to consign the new constitution to the tender mercies of
the legislatures of each and all of the 13 states. Experience clearly indicated that ratification then
would have had the same chance as the scriptural camel passing through the eye of a needle. It was
therefore determined to recommend to Congress that the new Constitution be submitted to
conventions in the several states especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified by nine of the thirteen states ... .
(The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viiiix; emphasis
supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be Antifederalist,
provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting
that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into
effect as soon as nine states ratified. The convention method had the further advantage that judges,
ministers, and others ineligible to state legislatures, could be elected to a convention. The ninestate
provision was, of course, mildly revolutionary. But the Congress of the Confederation, still sitting in
New York to carry on federal government until relieved, formally submitted the new constitution to the
states and politely faded out before the first presidential inauguration. (The Oxford History of the Am.
People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four states on
May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen (13) state
legislatures as required by Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in
spite of the fact that the Federal Constitution as originally adopted suffers from two basic infirmities, namely, the
absence of a bill of Rights and of a provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution.
The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American Constitution,
nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326330), which enunciated the principle that
the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the
people, but on the fact or fiat or approval or adoption or acquiescence by the people which fact of ratification or
adoption or acquiescence is all that is essential, the Court cited precisely the case of the irregular revision and
ratification by state conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has been called to our attention,
and we have found none. We think that the principle which we apply in the instant case was very
clearly applied in the creation of the constitution of the United States. The convention created by a
resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of
confederation. This they did not do, but submitted to the sovereign power, the people, a new
constitution. In this manner was the constitution of the United States submitted to the people and it
became operative as the organic law of this nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the constitution of the
United States, has this to say: "The convention proceeded to do, and did accomplish, what they were
not authorized to do by a resolution of Congress that called them together. That resolution plainly
contemplated amendments to the articles of confederation, to be submitted to and passed by the
Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced that any amendments were
powerless to effect a cure; that the disease was too deeply seated to be reached such tentative
means. They saw that the system they were called to improve must be totally abandoned, and that
the national idea must be reestablished at the center of their political society. It was objected by
some members, that they had no power, no authority, to construct a new government. They had no
authority, if their decisions were to be final; and no authority whatsoever, under the articles of
confederation, to adopt the course they did. But they knew that their labors were only to be
suggestions; and that they as well as any private individuals, and any private individuals as well as
they, had a right to propose a plan of government to the people for their adoption. They were, in fact,
a mere assemblage of private citizens, and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people might have done the
same with a constitution submitted to them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the
people, can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by implication a limitation upon
the sovereign. This would be an authorized exercise of sovereign power by the court. In State v.
Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a State may form an original
constitution, or abrogate an old one and form a new one, at any time, without any political restriction
except the constitution of the United States; ... ." (37 SE 327328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold
that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any
means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor
vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution
of 1902, having been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition, must be regarded as an
existing Constitution irrespective of the question as to whether or not the convention which
promulgated it had authority so to do without submitting it to a vote of the people. In Brittle v. People,
2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which
were added by the Legislature at the requirement of Congress, though never submitted to the people
for their approval." (97 NW 349350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the
American Constitution, in spite of the fact that such ratification was in clear violation of the prescription on
alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G.R. No. L36165
dismissed this most significant historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a
revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual
Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any
decided case, but merely refers to the footnotes on the brief historic account of the United States Constitution on
p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270316 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. 270281). In
Chapter XX on "The Creative Period in Politics, 17851788," Professor Morison delineates the genesis of the
Federal Constitution, but does not refer to it even implicitly as revolutionary constitution (pp. 297316). However,
the Federal Constitution may be considered revolutionary from the view point of McIver if the term revolution is
understood in "its wider sense to embrace decisive changes in the character of government, even though they do
not involve the violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed.,
p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of
Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war
of independence was a revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of
the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their
independence and long after popular support for the government of the Confederation had stabilized was not a
product of a revolution. The Federal Constitution was a "creation of the brain and purpose of man" in an era of
peace. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor, the
Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the
Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation
is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and enforceability
of the 1973 Constitution and of the government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L36164). 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 reenunciated in 1912 in the case of Pacific States Telephone and
Telegraph Company vs. Oregon (223 U.S. 118, 133151, 56 L.ed. 377386). 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 restated:
In view of the importance of the subject, the apparent misapprehension on one side and seeming
misconception on the other, suggested by the argument as to the full significance of the previous
doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than
we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling
case — Luther v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it should be
decided that the character government had no legal existence during the period of time above
mentioned, — if it had been annulled by the adoption of the opposing government, — then the laws
passed by its legislature during that time were nullities; its taxes wrongfully collected, its salaries and
compensations to its officers illegally paid ; its public accounts improperly settled and the judgments
and sentences of its courts in civil and criminal cases null and void, and the officers who carried their
decisions into operation answerable as trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United States shall guarantee to
every state in the Union a republican form of government, and shall protect each of them against
invasion; and on the application of the Legislature or of the Executive (when the legislature cannot be
convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is established
one in a state. For, as the United State guarantee to each state a republican government, Congress
must necessarily decide what government is established in the state before it can determine whether
it is republican or not. And when the senators and representatives of a state are admitted into the
Councils of the Union, the authority of the government under which they were appointed, as well as
its republican character, is recognized by the proper constitutional authority. And its decision is
binding on every other department of the government, and could not be questioned in a judicial
tribunal. It is true that the contest in this case did not last long enough to bring the matter to this
issue; and as no senators or representatives were elected under the authority of the government of
which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right
to decide is placed there and not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude
by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing
of a contention made concerning the 14th Amendment, and coming to consider a proposition which
was necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it
was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee to every state in this Union a republican form of
government, and shall protect each of them against invasion; and on application of the legislature, or
the Executive (when the legislature cannot be convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged to the political department.
Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was held that the question, which of the two
opposing governments of Rhode Island, namely, the charter government or the government
established by a voluntary convention, was the legitimate one, was a question for the determination
of the political department; and when that department had decided, the courts were bound to take
notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long since by this Court been, definitely
determined to be political and governmental, and embraced within the scope of the scope of the
powers conferred upon Congress, and not, therefore within the reach of judicial power, it follows that
the case presented is not within our jurisdiction, and the writ of error must therefore be, and it is,
dismissed for want of jurisdiction. (223 U.S. pp. 142151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority
therefor and without submitting the same to the people for ratification, becomes valid, when recognized, accepted
and acted upon the by Chief of State and other government functionaries, as well as by the people. In the 1903
case of Taylor vs. Commonwealth (44 SE 754755), the Court ruled:
The sole ground urged in support of the contention that Constitution proclaimed in 1902 is invalid is
that it was ordained and promulgated by the convention without being submitted for ratification or
rejection by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention duly called by direct vote of the
people of the state to revise and amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the only valid Constitution of the state
by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in
its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained
by the convention which assembled in the city of Richmond on the 12th day of June 1901, as the
Constitution of Virginia; by the individual oaths of members to support it, and by its having been
engaged for nearly a year in legislating under it and putting its provisions into operation but the
judiciary in taking the oath prescribed thereby to support and by enforcing its provisions; and by the
people in their primary capacity by peacefully accepting it and acquiescing in it, registering as voters
under it to the extent of thousands through the state, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States. (p. 755).
The Court in the Taylor case abovementioned further said:
While constitutional procedure for adoption or proposal to amend the constitution must be duly
followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that
the Constitution was violated in submitting the proposal. ... Substance more than form must be
regarded in considering whether the complete constitutional system for submitting the proposal to
amend the constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in which a proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or
collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper
time, it is effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207,
126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or
adoption or acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42
SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and stated that: "The authorities are almost
uniform that this ratification of an unauthorized act by the people (and the people are the principal in this instance)
renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new Constitution are registered in the
book of voters; it is enough that they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899];
45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin
ruled that "irregularity in the procedure for the submission of the proposed constitutional amendment will not
defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court
pronounced that "the irregularity in failing to publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election was held or once in each of the 7day
periods immediately preceding the day of the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v. Ladner (131) SO
2nd 45 462), where they admitted irregularities or illegalities committed in the procedure for submission of the
proposed constitutional amendment to the people for ratification consisted of: "(a) the alleged failure of the county
election commissioners of the several counties to provide a sufficient number of ballot boxes 'secured by good
and substantial locks,' as provided by Section 3249, Code of 1942, Rec., to be used in the holding of the special
election on the constitutional amendment, and (b) the alleged failure of the State Election Commissioners to
comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in
each of the 82 counties. The irregularities complained of, even if proved, were not such irregularities would have
invalidated the election." (Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the Constitutional Convention and during the
deliberations of the Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21,
1972, the salient reforms contained in the 1973 Constitution which have long been desired by the people, had
been thoroughly discussed in the various committees of the Constitutional Convention, on the floor of the
Convention itself, in civic forums and in all the media of information. Many of the decrees promulgated by the
Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in
Sec. 3(2) of Article XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for these
reforms and are not complying with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971 when the
opposition won six out of eight senatorial seats despite the suspension of the privileges of the writ of habeas
corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on
individual freedom as the proclamation of martial law. In both situations, there is no total blackout of human rights
and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the Legislative and
Executive branches of the government elected and/or appointed under the 1935 Constitution have either
recognized or are now functioning under the 1973 Constitution, aside from the fact of its ratification by the
sovereign people through the Citizens Assemblies. Ninetyfive (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 twentyfour (24) senators including
Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the
certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder3 to Consolidated
Rejoinder of petitioners in L36165). Only the five (5) petitioners in L36165 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 quasijudicial 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
Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all
election registrars to register 18year olds and above whether literates or not, who are qualified electors under the
1973 Constitution (see pars. 1A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government which is
enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels and subversives as
the only possible exceptions, the rest of the citizenry are complying with decrees, orders and circulars issued by
the incumbent President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522:
If a set of men, not selected by the people according to the forms of law, were to formulate an
instrument and declare it the constitution, it would undoubtedly be the duty of the courts declare its
work a nullity. This would be revolution, and this the courts of the existing government must resist
until they are overturned by power, and a new government established. The convention, however,
was the offspring of law. The instrument which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It is a matter of current history that both
the executive and legislative branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore, one of a judicial character? It is
our undoubted duty, if a statute be unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very
different case. It may be said, however, that, for every violation of or noncompliance with the law,
there should be a remedy in the courts. This is not, however, always the case. For instance, the
power of a court as to the acts of the other departments of the government is not an absolute one,
but merely to determine whether they have kept within constitutional limits, it is a duty rather than a
power, The judiciary cannot compel a coequal department to perform a duty. It is responsible to the
people; but if it does act, then, when the question is properly presented, it is the duty of the court to
say whether it has conformed to the organic law. While the judiciary should protect the rights of the
people with great care and jealousy, because this is its duty, and also because, in times of great
popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep
the proper bounds of its power, as being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its colonial character as its
constitution, and no law existed providing for the making of a new one. In 1841 public meetings were
held, resulting in the election of a convention to form a new one, — to be submitted to a popular vote.
The convention framed one, submitted it to a vote, and declared it adopted. Elections were held for
state officers, who proceeded to organize a new government. The charter government did not
acquiesce in these proceedings, and finally declared the state under martial law. It called another
convention, which in 1843 formed a new constitution. Whether the charter government, or the one
established by the voluntary convention, was the legitimate one, was uniformly held by the courts of
the state not to be a judicial, but a political question; and the political department having recognized
the one, it was held to be the duty of the judiciary to follow its decision. The supreme court of the
United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the
federal court, yet in the argument approves it, and in substance says that where the political
department has decided such a matter the judiciary should abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the
convention, when it reassembled, had no power to make any material amendment, and that such as
were made are void by reason of the people having theretofore approved the instrument. Then, next,
this court must determine what amendments were material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might
differ as to what amendments are material, and the result would be confusion and anarchy. One
judge might say that all the amendments, material and immaterial, were void; another, that the
convention had then the implied power to correct palpable errors, and then the court might differ as
to what amendments are material. If the instrument as ratified by the people could not be corrected
or altered at all, or if the court must determine what changes were material, then the instrument, as
passed upon by the people or as fixed by the court would be lacking a promulgation by the
convention; and, if this be essential, then the question would arise, what constitution are we now
living under, and what is the organic law of the state? A suggestion of these matters shows what
endless confusion and harm to the state might and likely would arise. If, through error of opinion, the
convention exceeded its power, and the people are dissatisfied, they have ample remedy, without the
judiciary being asked to overstep the proper limits of its power. The instrument provides for
amendment and change. If a wrong has been done, it can, in the proper way in which it should be
remedied, is by the people acting as a body politic. It is not a question of whether merely an
amendment to a constitution, made without calling a convention, has been adopted, as required by
that constitution. If it provides how it is to be done, then, unless the manner be followed, the judiciary,
as the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa,
543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is
a case where a new constitution has been formed and promulgated according to the forms of law.
Great interests have already arisen under it; important rights exist by virtue of it; persons have been
convicted of the highest crime known to the law, according to its provisions; the political power of the
government has in many ways recognized it; and, under such circumstances, it is our duty to treat
and regard it as a valid constitution, and now the organic law of our commonwealth.
We need not consider the validity of the amendments made after the convention reassembled. If the
making of them was in excess of its powers, yet, as the entire instrument has been recognized as
valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of
the rights of the people, — who can and properly should remedy the matter, if not to their liking, — if
it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon the state.
(emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973
Constitution it would be exercising a veto power on the act of the sovereign people, of whom this Court is merely
an agent, which to say the least, would be anomalous. This Court cannot dictate to our principal, the sovereign
people, as to how the approval of the new Constitution should be manifested or expressed. The sovereign people
have spoken and we must abide by their decision, regardless of our notion as to what is the proper method of
giving assent to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmeña vs. Marcos
(Pres. Election Contest No. 3, Jan. 8, 1973), was reelected by the vote of over 5 million electors in 1969 for
another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not having a
similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of
government, must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively
reserved by the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for
popular ratification of their organic law. That would be incompatible with their sovereign character of which We are
reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for
ratification which they themselves define in their Constitution, cannot apply to a unitary state like the Republic of
the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United States, in order to
secure and preserve the existence of the Federal Republic of the United States against any radical innovation
initiated by the citizens of the fifty (50) different states of the American Union, which states may be jealous of the
powers of the Federal government presently granted by the American Constitution. This dangerous possibility
does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional
Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he
might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102
that the people through their Citizens' Assemblies had overwhelmingly approved the new Constitution due regard
to a separate, coordinate and coequal 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 overriding reason to deny the same to the Chief of
State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without being
presumptuous, in the face of the certifications by the Office the Secretary of the Department of Local Government
and Community Development. (Annexes 1, to 1E, Annexes 2 to 2O to the compliance with manifestation filed by
the Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is nothing in the
records that contradicts, much less overthrow the results of the referendum as certified. Much less are We
justified in reversing the burden of proof — by shifting it from the petitioners to the respondents. Under the rules
on pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their claim that the
people did not ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have
failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of reports
relayed to him from private sources which could be biased and hearsay, aside from the fact that such reports are
not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well
nigh solemn declaration which announces the highest act of the sovereign people — their imprimatur to the basic
Charter that shall govern their lives hereafter — may be for decades, if not for generations.
Petitioners decry that even 15year olds, ex convicts and illiterates were allowed to vote in the Citizens'
Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in Sections
1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino
citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists,
convicts or exconvicts. Without admitting that exconvicts voted in the referendum, about which no proof was
even offered, these sectors of our citizenry, whom petitioners seem to regard with contempt or decision and
whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and
the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of
age or above to express their conformity or non conformity to the proposed Constitution, because their stake
under the new Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these
citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or ignorance deserve more
solicitude from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years
up to below 21 years old, the exconvicts 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, exconvicts granted absolute pardon are qualified to vote. Not all exconvicts 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, exconvicts and imbeciles constitute a very negligible number in any locality or barrio, including the
localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of the
plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or correctness of Proclamation No.
1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there
was no official certification to the results of the same from the Department of Local Governments. But there was
such certification as per Annex 1 to 1A to the Notes submitted by the Solicitor General counsel for respondents
public officers. This should suffice to dispose of this point. Even in the absence of such certification, in much the
same way that in passing law, Congress or the legislative body is presumed to be in possession of the facts upon
which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 11211 citing
Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should
likewise be presumed that the President was in possession of the fact upon which Proclamation No. 1102 was
based. This presumption is further strengthened by the fact that the Department of Local Governments, the
Department National Defense and the Philippine Constabulary as well the Bureau of Posts are all under the
President, which offices as his alter ego, are presumptively acting for and in behalf of the President and their acts
are valid until disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming majority vote
in the Citizens' Assemblies in favor of the new Constitution, is to charge the President with falsification, which is a
most grievous accusation. Under the, rules of pleadings and evidence, the petitioners have the burden of proof by
preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions, where
the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the
petitioner all assert the contrary? Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and jurisprudence to
acts of public officers whose category in the official hierarchy is very much lower than that of the Chief of State.
What reason is there to withhold such a presumption in favor of the President? Does the fact that the President
belong to the party in power and that four (4) of the five (5) senators who are petitioners in L36165 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 L36165 and four (4) of the seven (7) petitioners in L36164 were all participants in the
political drama of this country since 1946. They are witness to the frustrations of wellmeaning 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 L36165 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 thirtyfive (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 longawaited reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone
including herein petitioners to give the present leadership the opportunity to institute and carry out the needed
reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a limitation upon the
sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province
exclusively reserved to and by the sovereign people. This Court did not heed to the principle that the courts are
not the fountain of all remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as
against the judgment of the people on the basic instrument which affects their very lives. WE cannot determine
what is good for the people or ought to be their fundamental law. WE can only exercise the power delegated to Us
by the sovereign people, to apply and interpret the Constitution and the laws for the benefit of the people, not
against them nor to prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any
time may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a
part of the government established pursuant thereto. Unlike in the Borden case, supra, where there was at least
another government claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it
had no established organ except Dorr who represented himself to be its head; in the cases at bar there is no
other government distinct from and maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel government duly
organized as such even only for domestic purposes, let alone a rebel government engaged in international
negotiations. As heretofore stated, both the executive branch and the legislative branch established under the
1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of January
17, 1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of
the Republic of the Philippines. Can this Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L36165 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. 778779, 1969 ed., pp. 654657),
briefly recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as
well as slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed
aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General of Maryland.
He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist
Party, which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson,
also a slave owner and landed aristocrat, who later appointed him first as Attorney General of the United States,
then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief
Justice John Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death
"went largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief
Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the Southern
States would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroes was
revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the American
Negro is not entitled to the rights of an American citizen and that his status as a slave is determined by his
returning to a slave state. One can therefore discern his hostility towards President Lincoln when he decided Ex
parte Merryman, which animosity to say the least does no befit a judicial mind. Such a man could hardly be
spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes should not be
expressed indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L36165 appears to have committed another historical error, which may be due to his
rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732733), 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 copetitioner in L36164 did not address likewise his challenge
to the five (5) senators who are petitioners in L36165 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 L36165 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 L36165 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 fencesitters. 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 L36165 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.
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES
STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to whether
a constitutional amendment or the revised or new Constitution has been validly submitted to the people for
ratification in accordance with the procedure prescribed by the existing Constitution, is a justiciable question,
accord all presumption of validity to the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in the new Constitution or amendment,
although there was an illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935
[1934], Hammond vs. Clark, 71 SE 482483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34;
Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68
NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs.
State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts
stressed that the constitutional amendment or the new Constitution should not be condemned "unless our
judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506,
207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality
must persist in the absence of factual foundation of record to overthrow such presumption (ErmitaMalate Hotel,
etc. vs. City Mayor, L24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — COEQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE AND
JUDICIARY.
The Constitutional Convention is coordinate and coequal with, as well as independent of, the three grand
departments of the Government, namely, the legislative, the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three
departments as to the content as well as the form of the Charter that it proposes. It enjoys the same immunity
from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including
the printing of its own journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9;
Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the
purpose of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention has
the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention such
prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An
unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional
Convention to the people for ratification, much less appropriate the necessary funds therefor. That could have
been the fate of the 1973 Constitution, because the same abolished the Senate by creating a unicameral National
Assembly to be presided by a Prime Minister who wields both legislative and executive powers and is the actual
Chief Executive, for the President contemplated in the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the present
Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that the new Constitution
shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2
of the same Article XVIII secures to the members of Congress membership in the interim National Assembly as
long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution, affords
them little comfort; because the convening of the interim National Assembly depends upon the incumbent
President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of
Congress, who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and
appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its independence and
effectiveness, possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in estimation of the Convention can better
determine appropriate time for such a referendum as well as the amount necessary to effect the same; for which
reason the Convention thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution
No. 5843 adopted on November 16, 1972, proposed to the President "that a decree be issued calling a plebiscite
for the ratification of the proposed new Constitution such appropriate date as he shall determine and providing for
the necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional Convention
expected to complete its work by the end of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the national and local leaders desire that there be
continuity in the immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules
and regulations to implement the law, this authority to delegate implementing rules should not be denied to the
Constitutional Convention, a coequal 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 ordinancemaking 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 rearranging or readjusting any district, division or part of the Philippines "or disposing of issues of
general concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities including the
barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on the 1973 Constitution or on
whether there was further need of a plebiscite thereon, — both issues of national concern — is still within the
delegated authority reposed in him by the Constitutional Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that the
plebiscite must be conducted by the Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional Convention in making the delegation, it
could have easily included the necessary phrase for the purpose, some such phrase like "to call a plebiscite to be
supervised by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code
(or with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the
President the determination of the manner by which the plebiscite should be conducted, who shall supervise the
plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly states "that
copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the
Commission on Elections for implementation," did not in effect designate the Commission on Elections as
supervisor of the plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at
best serve merely to notify the Commission on Elections about said resolution, but not to direct said body to
supervise the plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President,
who, because he is in possession of all the facts funnelled to him by his intelligence services, was in the superior
position to decide when the plebiscite shall be held, how it shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the
validity of, or validated Presidential Proclamation No. 1081 placing the entire country under martial law by
resolving to "propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite ... ." The use
of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that
form and nomenclature by the President as the Commander in Chief and enforcer of martial law. Consequently,
the issuance by the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such
delegated authority.
Such delegation, unlike the delegation by Congress of the rulemaking power to the Chief Executive or to any of
his subalterns, does not need sufficient standards to circumscribe the exercise of the power delegated, and is
beyond the competence of this Court to nullify. But even if adequate criteria should be required, the same are
contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a
proposed new Constitution for the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution
has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate
political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite
Cases, stated:
... Once this work of drafting has been completed, it could itself direct the submission to the people
for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress
not being in session, could the President, by the decree under question, call for such a plebiscite?
Under such circumstances, a negative answer certainly could result in the work of the Convention
being rendered nugatory. The view has been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence the task of submission becomes ministerial,
with the political branches devoid of any discretion as to the holding of an election for that purpose.
Nor is the appropriation by him of the amount necessary to be considered as offensive to the
Constitution. If it were done by him in his capacity as President, such an objection would indeed have
been formidable, not to say insurmountable. If the appropriation were made in his capacity as agent
of the Convention to assure that there be submission to the people, then such an argument loses
force. The Convention itself could have done so. It is understandable why it should be thus. If it were
otherwise, then a legislative body, the appropriating arm of the government, could conceivably make
use of such authority to compel the Convention to submit to its wishes, on pain of being rendered
financially distraught. The President then, if performing his role as its agent, could be held as not
devoid of such competence. (pp. 23, concurring opinion of J. Fernando in L35925, etc., emphasis
supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the
hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification or adoption of the 1973 Constitution itself (Pope vs. Gray,
104 SO, 2d 841; 7th Dec. pp. 212219, 19561966).
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. xxxxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra vires or
beyond the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and
including such provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article
XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses may produce, and particularly describing the
place to be searched, and the persons or things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter into international treaties or agreements as the
national welfare and interest may require." (Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof, including governmentowned 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 (L35925, L35929, L35940, L35942, L35948, L35953, L35961, L35965, & L35979),
Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled
this objection, thus:
... Regardless of the wisdom and moral aspects of the contested provisions of the
proposed Constitution, it is my considered view that the Convention was legally deemed
fit to propose — save perhaps what is or may be insistent with what is now known,
particularly in international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people — although insofar only as
the determination of the proposals to be made and formulated by said body is
concerned — but also, because said proposals cannot be valid as part of our
Fundamental Law unless and until "approved by the majority of the votes cast at an
election which" said proposals "are submitted to the people for their ratification," as
provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 1718, Decision in L
35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L32476, Oct. 20, 1970, 35 SCRA 367) that the
Constitutional Convention has the authority to "entirely overhaul the present Constitution and propose an entirely
new Constitution based on an ideology foreign to the democratic system ...; because the same will be submitted
to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of
the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the Del
Rosario case, supra, and added: "... it seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention ..., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60
Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911];
Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich.
338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the people
elected the delegates to the Convention and when the delegates themselves were campaigning, such limitation of
the scope of their function and objective was not in their minds."
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972 without officially
promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of
the 1973 Constitution. This claim is without merit because their Annex "M" is the Filipino version of the 1973
Constitution, like the English version, contains the certification by President Diosdado Macapagal of the
Constitutional Convention, duly attested by its Secretary, that the proposed Constitution, approved on second
reading on the 27th day of November, 1972 and on third reading in the Convention's 291st plenary session on
November 29, 1972 and accordingly signed on November 1972 by the delegates whose signatures are
thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as
President of the Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the
petitioners in L36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted
to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election called by Congress at which the
amendments are submitted for ratification by the qualified electors defined in Article V hereof, supervised by the
Commission on Elections in accordance with the existing election law and after such amendments shall have
been published in all the newspapers of general circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which
imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of the
1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess — through some
kind of escamotage. This Court should not commit such a grave error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of substantial compliance
with the procedure prescribed by the Constitution and/or the law, nullifies the proposed amendment or the new
Constitution, the procedure prescribed by the state Constitution is so detailed that it specifies that the submission
should be at a general or special election, or at the election for members of the State legislature only or of all
state officials only or of local officials only, or of both state and local officials; fixes the date of the election or
plebiscite limits the submission to only electors or qualified electors; prescribes the publication of the proposed
amendment or a new Constitution for a specific period prior to the election or plebiscite; and designates the officer
to conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which should so
state the substance of the proposed amendments to enable the voter to vote on each amendment separately or
authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details
thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861];
Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857];
Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature
in the manner following: The proposed amendments shall be read in the house in which they
originate on three several days, and, if upon the third reading, threefifths 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, threefifths
of all the members elected that house shall vote in favor of the proposed amendments, the
legislature shall order an election by the qualified electors of the state upon such proposed
amendments, to be held either at the general election next succeeding the session of the legislature
at which the amendments are proposed or upon another day appointed by the legislature, not less
than three months after the final adjournment of the session of the legislature at which the
amendments were proposed. Notice of such election, together with the proposed amendments, shall
be given by proclamation of the governor, which shall be published in every county in such manner
as the legislature shall direct, for at least eight successive weeks next preceding the day appointed
for such election. On the day so appointed an election shall be held for the vote of the qualified
electors of the state upon the proposed amendments. If such election be held on the day of the
general election, the officers of such general election shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be held on a day other than that of a general election,
officers for such election shall be appointed; and the election shall be held in all things in accordance
with the law governing general elections. In all elections upon such proposed amendments, the votes
cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state,
and counted, in the same manner as in elections for representatives to the legislature; and if it shall
thereupon appear that a majority of the qualified electors who voted at such election upon the
proposed amendments voted in favor of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such election shall be made known by
proclamation of the governor. Representation in the legislature shall be based upon population, and
such basis of representation shall not be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section
284 of this Constitution, the substance or subject matter of each proposed amendment shall be so
printed that the nature thereof shall be clearly indicated. Following each proposed amendment on the
ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No". The
choice of the elector shall be indicated by a cross mark made by him or under his direction, opposite
the word expressing his desire, and no amendment shall be adopted unless it receives the
affirmative vote of a majority of all the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session
thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of
all the members, elected to each house, such proposed amendments shall be entered on the journal
with the yeas and nays, and published in at least one newspaper in each county, where a newspaper
is published, for six months immediately preceding the next general election for Senators and
Representatives, at which time the same shall be submitted to the electors of the State for approval
or rejection, and if a majority of the electors voting at such election adopt such amendments, the
same shall become a part of this Constitution; but no more than three amendments shall be
proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote
on each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this
constitution may be made by either branch of the legislature; and if two thirds of all the members
elected to each house shall concur therein, such proposed amendments, together with the yeas and
nays, shall be entered on the journal; and the secretary of state shall cause the same to be published
in at least one newspaper in each county of the state where a newspaper is published, for three
months preceding the next election for representatives, at which time, the same shall be submitted to
the electors, for their approval or rejection; and if a majority of the electors voting on said
amendments, at said election, shall adopt the amendments, the same shall become a part of the
constitution. When more than one amendment shall be submitted at the same time, they shall be so
submitted as to enable the electors to vote on each amendments separately; and not more than
three propositions to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to voters; governor's proclamation.
The General Assembly may propose Amendments to this Constitution; provided that each
Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will
stand when amended and passed by three fifths of all the members elected to each of the two
Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or
bills proposing amendment or amendments shall be published by order of the Governor, in at least
two newspapers, in each County, where so many may be published, and where not more than one
may be published, then in the newspaper, and in three newspapers published in the City of
Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at
which the proposed amendment or amendments shall be submitted, in a form to be prescribed by
the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for
and against said proposed amendment or amendments, severally, shall be returned to the Governor,
in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the
votes cast at said election on said amendment or amendments, severally, were cast in favor thereof,
the Governor shall, by his proclamation, declare the said amendment or amendments having
received said majority of votes, to have been adopted by the people of Maryland as part of the
Constitution thereof, and henceforth said amendment or amendments shall be part of the said
Constitution. When two or more amendments shall be submitted in the manner aforesaid, to the
voters of this State at the same election, they shall be so submitted as that each amendment shall be
voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All
amendments proposed by the general assembly or by the initiative shall be submitted to the electors
for their approval or rejection by official ballot title as may be provided by law, on a separate ballot
without party designation, at the next general election, or at a special election called by the governor
prior thereto, at which he may submit any of the amendments. No such proposed amendment shall
contain more than one amended and revised article of this constitution, or one new article which shall
not contain more than one subject and matters properly connected therewith. If possible, each
proposed amendment shall be published once a week for two consecutive weeks in two newspapers
of different political faith in each county, the last publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but one newspaper in any county, publication of
four consecutive weeks shall be made. If a majority of the votes cast thereon is in favor of any
amendment, the same shall take effect at the end of thirty days after the election. More than one
amendment at the same election shall be so submitted as to enable the electors to vote on each
amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure for
submission or ratification. As heretofore stated, it does not specify what kind of election at which the new
Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the plebiscite.
Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much
less does it require the publication of the proposed Constitution for any specific period before the plebiscite nor
does it even insinuate that the plebiscite should be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the
people for ratification. It does not make any reference to the Commission on Elections as the body that shall
supervise the plebiscite. And Article XV could not make any reference to the Commission on Elections because
the original 1935 Constitution as ratified on May 14, 1935 by the people did not contain Article X on the
Commission on Elections, which article was included therein pursuant to an amendment by that National
Assembly proposed only about five (5) years later — on April 11, 1940, ratified by the people on June 18, 1940 as
approved by the President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703,
713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935
Constitution as ratified May 14, 1935 intended that a body known as the Commission on Elections should be the
one to supervise the plebiscite, because the Commission on Elections was not in existence then as was created
only by Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475476;
Sumulong vs. Commission, 170 Phil. 703, 708715; 73 Phil. 288, 290300; Tañada & Fernando, Constitution of
the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 1119).
Because before August, 1940 the Commission on Election was not yet in existence, the former Department of
Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the
1937 amendment on woman's suffrage, the 1939 amendment to the Ordinance appended to the 1935
Constitution (TydingsKocialkowski Act of the U.S. Congress) and the three 1940 amendments on the
establishment of a bicameral Congress, the reelection of the President and the VicePresident, and the creation
of the Commission on Elections (ratified on June 18, 1940). The supervision of said plebiscites by the then
Department of Interior was not automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34,
49 and 517.
If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for
ratification of constitutional amendments or revision, it should have likewise proposed the corresponding
amendment to Article XV by providing therein that the plebiscite on amendments shall be supervised by the
Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted that only
the qualified voters under Article V of the 1935 Constitution should participate in the referendum on any
amendment or revision thereof, they could have provided the same in 1935 or in the 1940 amendment by just
adding a few words to Article XV by changing the last phrase to "submitted for ratification to the qualified electors
as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors
under Article V of the 1935 Constitution because the said term "people" as used in several provisions of the 1935
Constitution, does not have a uniform meaning. Thus in the preamble, the term "Filipino people" refer, to all
Filipino citizens of all ages of both sexes. In Section 1 of Article II on the Declaration of Principles, the term
"people" in whom sovereignty resides and from whom all government authority emanates, can only refer also to
Filipino citizens of all ages and of both sexes. But in Section 5 of the same Article II on social justice, the term
"people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both
sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill
of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so expressly
as the case of the election of senators and congressmen. Section 2 Article VI expressly provides that the senators
"shall be chosen at large by the qualified electors of the Philippines as may provided by law." Section 5 of the
same Article VI specifically provides that congressmen shall "be elected by the qualified electors." The only
provision that seems to sustain the theory of petitioners that the term "people" in Article XV should refer to the
qualified electors as defined in Article V of the 1935 Constitution is the provision that the President and Vice
President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone
cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of Article VI,
which specifically prescribes that the senators and congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in detail
procedure of ratification of amendments to or revision of said Constitutions and expressly require ratification by
qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 193435 Constitutional
Convention satisfied that the amendment shall be submitted to qualified election for ratification. This proposal was
not accepted indicating that the 193435 Constitutional Convention did intend to limit the term "people" in Article
XV of the 1935 Constitution to qualified electors only. As above demonstrated, the 193435 Constitutional
Convention limits the use of the term "qualified electors" to elections of public officials. It did not want to tie the
hands of succeeding future constitutional conventions as to who should ratify the proposed amendment or
revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment contemplates
the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly and later by Congress, indicates that
there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on September 30, 1936, consists of 12
sections and, aside from providing that "there shall be held a plebiscite on Friday, April 30, 1937, on the question
of woman's suffrage ... and that said amendment shall be published in the Official Gazette in English and Spanish
for three consecutive issues at least fifteen (15) days prior to said election, ... and shall be posted in a
conspicuous place in its municipal and provincial office building and in its polling place not later than April 22,
1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding of a
special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3,
Com. Act No. 34)1; and, that the votes cast according to the returns of the board of inspectors shall be counted
by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly
applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73
calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the amendment
creating the Commission on Elections, specifically provided that the provisions of the existing election law shall
apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as
well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed
amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections
and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on September 15,
1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the amendments to said Constitution proposed in
"Res. No. 38, adopted on the same date, shall be submitted at following election of local officials," (Sec. 1, Com.
Act No. 492) that the said amendments shall be published in English and Spanish in three consecutive issues of
the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted not later than
October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted according to provisions of the
Election Code insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of the
National Assembly shall request the President to call a special session of the Assembly for the purpose of
canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and provided, among
others: that the plebiscite on the constitutional amendments providing bicameral Congress, reelection of the
President and VicePresident, and the creation of a Commission on Elections shall be held at a general election
on June 18, 1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the Official
Gazette in English and Spanish at least 20 days prior to the election and posted in every local government office
building and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity
with the Election Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be
forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment consists of 8
sections provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general
election which shall be held on March 11, 1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No.
73); that the said amendment shall be published in English and Spanish in three consecutive issues of the Official
Gazette at least 20 days prior to the election; that copies of the same shall be posted in a conspicuous place and
in every polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act
No. 357 (Election Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election,
the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results
thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate nor
envision the automatic application of the election law; and even at that, not all the provisions of the election law
were made applicable because the various laws aforecited contain several provisions which are inconsistent with
the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should be noted that the period for
the publication of the copies of the proposed amendments was about 10 days, 15 days or 20 days, and for
posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (See.
2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would be no
need for Congress to expressly provide therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the various
State Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified
electors can vote in the plebiscite. As aboveintimated, most of the Constitutions of the various states of the
United States provide for very detailed amending process and specify that only qualified electors can vote at such
plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was approved
on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to
include citizens who are at least 18 years of age, whether literate or not, provided they are also residents of the
barrio for at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are residents of
the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the
Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio
Secretary.
The barrio assembly shall meet at least once a year to hear the annual report of the barrio council
concerning the activities and finances of the barrio.
It shall meet also at the case of the barrio council or upon written petition of at least OneTenth 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 onefifth of the members of the barrio assembly be present to constitute a
quorum. All actions shall require a majority vote of these present at the meeting there being a
quorum.
Sec. 5. Powers of the barrio assembly. — The powers of the barrio assembly shall be as follows:
a. To recommend to the barrio council the adoption of measures for the welfare of the
barrio;
b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and special tax ordinances
submitted for its approval by the barrio council; and
d. To hear the annual report council concerning the activities and finances of the
assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty
days from its approval by either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be
taken by the voters, and such other information relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in regular election, and/or declaration by the voters to
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, twentyone 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
b. Any person who has violated his allegiance to the Republic of the Philippines; and
c. Insane or feebleminded persons.
All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at the plebiscite
on the recall of any member of the barrio council or on a budgetary, supplemental appropriation, or special
ordinances, a valid action on which requires "a majority vote of all of the barrio assembly members registered in
the list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a majority
vote of the members present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age, able to
read and write, residents of the barrio during the 6 months immediately preceding the election and duly registered
in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made ...
either in writing as in regular elections, and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote
may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L36165 that only those who are
21 years of age and above and who possess all other qualifications of a voter under Section 10 of R.A. No. 3590,
can vote on the plebiscites referred to in Section 6; because paragraph 3 of Section 6 does not expressly limit the
voting to those with the qualifications under Section 10 as said Section 6 does not distinguish between those who
are 21 or above on the one hand and those 18 or above but below 21 on the other, and whether literate or not, to
constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly can vote
as long as they are 18 years of age or above; and that only those who are 21 years of age or over and can read
and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years
of age, whether literate or not. Republic Act No. 3590 could simply have restated Section 4 of Republic Act No.
2370, the old Barrio Charter, which provided that only those who are 21 and above can be members of the barrio
assembly.
Counsels Salonga and Tañada as well as all the petitioners in L36165 and two of the petitioners in L36164
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 18year
olds as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as
delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973
Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the same
was based on the certification by the Secretary of the Department of Local Government and Community
Development who tabulated the results of the referendum all over the country. The accuracy of such tabulation
and certification by the said Department Secretary should likewise be presumed; because it was done in the
regular performance of his official functions aside from the fact that the act of the Department Secretary, as an
alter ego of the President, is presumptively the act of the President himself unless the latter disapproves or
reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by the
Department Secretary and the Chief Executive on the results of the referendum, is further strengthened by the
affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City
and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to the
ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for two consecutive terms for the President, and the 1947
parity amendment, cannot be invoked; because those amendments were proposed by the National Assembly as
expressly authorized by Article V of the 1935 Constitution respecting woman suffrage and as a constituent
assembly in all the other amendments aforementioned and therefore as such, Congress had also the authority to
prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as
heretofore discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution
to the people for ratification or delegate the same to the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as the
basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities and municipalities in all the
other provinces, cities and municipalities, and the affirmative votes in the Citizens' Assemblies resulting from such
extrapolation would still constitute a majority of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L36165, against the certification of the Department of Local Government and
Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of
Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes against 292,530 No votes. In Cavite province,
there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1A 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 ViceGovernor 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 ViceGovernor Camerino (Annex 1Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he
caused the preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and
Community Development showing the results of the referendum in Pasay City; that on the same day, there were
still in any Citizens' Assemblies holding referendum in Pasay City, for which reason he did not send the aforesaid
letter pending submittal of the other results from the said Citizens' Assemblies; and that in the afternoon of
January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City to the Office of
the President (Annex 5Rejoinder 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 CRejoinder 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 L36165). 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 3Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community
Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite"
addressed to the President of the Philippines through the Secretary of the Department of Local Government and
Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15,
1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the unsigned letters contain figures showing
the results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such documents received by her office (Annex 2
Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L36165 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 L36165, if they were extrapolated and applied to the other provinces and
cities of the country, the Yes votes would still be overwhelmingly greater than the No votes, applies equally to the
alleged discrepancy between the figures contained in the certification of the Secretary of the Department of Local
Government and Community Development and the figures furnished to counsel for petitioners in L36165
concerning the referendum in Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more votes in
favor of the plebiscite to be held later than those against, only serve to emphasize that there was freedom of
voting among the members of the Citizens' Assemblies all over the country during the referendum from January
10 to 15, 1973 (Annex6 Camarines Sur to Rejoinder of Petitioners in L36165). If there was no such freedom of
choice, those who wanted a plebiscite would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of approval of
the new Constitution by almost 97% by the members of the Citizens' Assemblies in Camarines Sur" (Annex
Camarines Sur to Rejoinder of Petitioners in L36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens' Assemblies voted
overwhelmingly in favor of the new Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on January 10. Provincial Governor
Pascual stated that "orderly conduct and favorable results of the referendum" were due not only to the
coordinated efforts and cooperation of all teachers and government employees in the area but also to the
enthusiastic participation by the people, showing "their preference and readiness to accept this new method of
government to people consultation in shaping up government policies." (AnnexBataan to Rejoinder of Petitioners
in L36165).
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 exconvicts 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 exconvicts 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 L36165 that
he can secure "the true and legitimate results of the referendum" from the Office of the President (Annex
CaloocanB to Rejoinder of Petitioners in L36165). Why did not learned and eminent counsel heed such
suggestion?
Counsel for petitioners in L36165, 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 L36165 (Annex Mas amended, to Consolidated Rejoinder of petitioners in L
36165 to the Notes of Arguments and Memorandum of respondents). Professor Salonga is not a qualified
statistician, which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of Census and
Statistics, in his letter dated March 16, 1973 address to the Secretary of the Department of Local Government
and Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered voters and the 1520yearold
youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage
participation of the "1520 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 1015, 1973 was 16.702 million, participation rate will therefore be the
ratio of the latter figure to the former which gives 74.2%.
3) 1 cannot also understand c2 "Solution to Problem 11." The "difference or implied number of 1520
year olds" of 5,039,906 would represent really not only all 15year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at the time, assuming that all the
11,661,909 registered voted at Citizens' Assembly. Hence, the "estimate percentage participation of
1520 years olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of "1520 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 15year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio
would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between
16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the November 8,
1971 elections, is 5,040,091, which may include not only the 15year olds and above but below 21 but also the
qualified electors who were not registered before the November 8, 1971 elections as well as illiterates who are 15
years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent President obtained
over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a
majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8,
1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for the incumbent
President in 1969 did not vote in favor of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections,
have several members in their families and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should necessarily augment the number of votes who
voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of choice,
because the people fear to disagree with the President and CommanderinChief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973
Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in
the individual. Even without martial law, the penal, civil or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which persuades the individual to comply with or obey the law. But
before martial law was proclaimed, many individuals fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof — in brief, compartmentalized justice and extraneous pressures
and influences frustrated the firm and just enforcement of the laws. The fear that is generated by martial law is
merely the fear of immediate execution and swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed during the period of martial law. This is
not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973 Constitution.
Those who cringe in fear are the criminals or the law violators. Surely, petitioners do not come under such
category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as
by the election laws. But the 1935 Constitution does not require secret voting. We search in vain for such
guarantee or prescription in said organic law. The Commission on Elections under the 1940 Amendment,
embodied as Article X is merely mandated to insure "free, orderly and honest election." Congress, under its
plenary lawmaking 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 L36236
(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 trimedia — the press, radio and
television. Printed materials on the proposed reforms were circulated by their proponents. From June, 1971 to
November 29, 1972, reforms were openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional Convention reconvened in October, 1972
until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored by
private organizations universities and debated over the radio and on television. The Philippines is a literate
country, second only to Japan in the Far East, and more literate perhaps than many of midwestern and southern
states of the American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country
have radios. Even the illiterates listened to radio broadcasts on and discussed the provisions of the 1973
Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin Today, March 4,
1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30
minute documentary on the Philippines for American television stated that what impressed him most in his travel
throughout the country was the general acceptance of the New Society by the people which he saw in his 6week
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 USPhilippine relations, states:
Martial law has paved the way for a reordering of the basic social structure of the Philippines.
President Marcos has been prompt and surefooted 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 reassured by recent
developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority of the
population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars
issued to implement the same. It should be recalled, as hereinbefore stated, that all these reforms were the
subject of discussion both in the committee hearings and on the floor of the Constitutional Convention, as well as
in public forums sponsored by concerned citizens or civic organizations at which ConCon delegates as well as
other knowledgeable personages expounded their views thereon and in all the media of information before the
proclamation of martial law on September 21, 1972. This is the reason why the Constitutional Convention, after
spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it expedient to
accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed
provisions of the 1973 Constitution were already expressed and circulated. The 1973 Constitution may contain
some unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the
wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting
Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the President as CommanderinChief is
vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil.
171, 177178) which reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 57172). The trial of General
Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of
the Philippines has acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his powers as
Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs.
Styver (L129, 42 Off. Gaz., 664) when we said —
"War is not ended simply because hostilities have ceased. After cessation of armed
hostilities, incidents of war may remain pending which should be disposed of as in time
of war. "An important incident to a conduct of war is the adoption measures by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to thwart or impede our
military effort have violated the law of war." (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.)
Indeed, the power to create a military commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the language of a writer, a military
commission "has jurisdiction so long as the technical state of war continues. This
includes the period of an armistice, or military occupation, up to the effective date of
treaty of peace, and may extend beyond, by treaty agreement." (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as CommanderinChief 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. 177178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when, in his
concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of
the power which resides in the executive branch of the government to preserve order and insure the public safety
in times of emergency, when other branches of the government are unable to function, or their functioning would
itself threaten the public safety." (Emphasis supplied). There is an implied recognition in the aforesaid definition of
martial law that even in places where the courts can function, such operation of the courts may be affected by
martial law should their "functioning ... threaten the public safety." It is possible that the courts, in asserting their
authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels,
secessionists, dissidents as well as subversives, martial law may restrict such judicial function until the danger to
the security of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become an outright dictatorship, can
have no other purposes than the preservation of the independence of the state, the maintenance of
the existing constitutional order, and the defense of the political and social liberties of the people. It is
important to recognize the true and limited ends of any practical application of the principle of
constitutional dictatorship. Perhaps the matter may be most clearly stated in this way: the
government of a free state is proceeding on its way and meeting the usual problems of peace and
normal times within the limiting framework of its established constitutional order. The functions of
government are parceled out among a number of mutually independent offices and institutions; the
power to exercise those functions is circumscribed by wellestablished 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 worldwide depression
threatens to bring the nation's economy in ruins. The government meets the crisis by assuming more
powers and respecting fewer rights. The result is a regime which can act arbitrarily and even
dictatorially in the swift adaption of measures designed to save the state and its people from the
destructive effects of the particular crisis. And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and
restore normal times. The government assumes no power and abridges no right unless plainly
indispensable to that end; it extends no further in time than the attainment of that end; and it makes
no alteration in the political, social and economic structure of the nation which cannot be eradicated
with the restoration of normal times. In short, the aim of constitutional dictatorship is the complete
restoration of the status quo ante bellum. This historical fact does not comport with philosophical
theory, that there never has been a perfect constitutional dictatorship, is an assertion that can be
made without fear of contradiction. But this is true of all institutions of government, and the principle
of constitutional dictatorship remains eternally valid no matter how often and seriously it may have
been violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p. 7; emphasis
supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises legislative power,
whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should never be permanent
in character or effect. Emergency powers are strictly conditioned by their purpose and this purpose is
the restoration of normal conditions. The actions directed to this end should therefore be provisional.
For example, measures of a legislative nature which work a lasting change in the structure of the
state or constitute permanent derogations from existing law should not be adopted under an
emergency enabling act, at least not without the positively registered approval of the legislature.
Permanent laws, whether adopted in regular or irregular times, are for parliaments to enact. By this
same token, the decisions and sentences of extraordinary courts should be reviewed by the regular
courts after the termination of the crisis.
But what if a radical act of permanent character, one working lasting changes in the political and
social fabric, is indispensable to the successful prosecution of the particular constitutional
dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his
conservative purpose of preserving the Union; as a constitutional dictator he had a moral right to take
this radical action. Nevertheless, it is imperative that any action with such lasting effects should
eventually receive the positive approval of the people or of their representatives in the legislature. (P.
303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection
or economic depression or dislocation, the government exercises more powers and respects fewer rights in order
"to end the crisis and restore normal times." The government can assume additional powers indispensable to the
attainment of that end — the complete restoration of peace. In our particular case, eradication of the causes that
incited rebellion and subversion as secession, is the sine qua non to the complete restoration of normalcy.
Exercise of legislative power by the President as Commander in Chief, upon his proclamation of martial law, is
justified because, as he professes, it is directed towards the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of
the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86A as well as Proclamation No. 1102 is indispensable
to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak to maintain its
existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when without
express authority in the Constitution and the laws of the United States, he suspended one basic human freedom
— the privilege of the writ of habeas corpus — in order to preserve with permanence the American Union, the
Federal Constitution of the United States and all the civil liberties of the American people. This is the same
dilemma that presently confronts the Chief Executive of the Republic of the Philippines, who, more than the
Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and the rights
as well as lives of the people against open rebellion, insidious subversion secession. The Chief Executive
announced repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935
Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent revolution
and subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented secessionists of the extreme left who
demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the state
and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and
subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and control
the security and happiness of the living present. A contrary view would be to deny the selfevident proposition that
constitutions and laws are mere instruments for the wellbeing, peace, security and prosperity of the country and
its citizenry. The law as a means of social control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter,
the Constitution is neither a printed finality nor the imprisonment of the past, but the enfolding of the future. In the
vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be determined by merely
opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intended
to serve. Because experience may teach one generation to doubt the validity and efficacy of the concepts
embodied in the existing Constitution and persuade another generation to abandon them entirely, heed should be
paid to the wise counsel of some learned jurists that in the resolution of constitutional questions — like those
posed before Us — the blending of idealism and practical wisdom or progressive legal realism should be applied
(see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 1921). To Justice
Frankfurter, law is "a vital agency for human betterment" and constitutional law "is applied politics using the word
in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is capable of
growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and
social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed Powell
emphasizes "practical wisdom," for "the logic of constitutional law is the common sense of the Supreme Court."
(Powell, the Validity of State Legislation, under the WebbKenyon Law, 2 Southern Law Quarterly, pp. 112, 138
139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change.
Living organisms as well as manmade 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 wellbeing. 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, readopted 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, Canutelike, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents
there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best
administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct
democracy, representative democracy, welfare states, socialist democracy, mitigated socialism, to outright
communism which degenerated in some countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his
ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods and techniques
when brought into the actual arena of conflict as a public functionary — face to face with the practical problems of
state, government and public administration. And so it is that some learned jurists, in the resolution of
constitutional issues that immediately affect the lives, liberties and fortunes of the citizens and the nation,
recommend the blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive
legal realism. The national leader, who wields the powers of government, must and has to innovate if he must
govern effectively to serve the supreme interests of the people. This is especially true in times of great crises
where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their wellbeing, 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 CommanderinChief of the Armed Forces to utilize
all the available techniques to suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American Constitution and
former President of the United States, who personifies the progressive liberal, spoke the truth when he said that
some men "ascribe men of the preceding age a wisdom more than human, and suppose what they did to be
beyond amendment. ... But I know also, that laws and institutions must go hand in hand with the progress of the
human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths
disclosed and manners and opinions change, with the change of circumstances, institutions must also advance,
and keep pace with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It cannot be
adequately and fairly appraised within the present ambience, charged as it is with so much tension and emotion, if
not partisan passion. The analytical, objective historians will write the final verdict in the same way that they
pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpus
without any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who
approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory.
President Lincoln not only emancipated the Negro slaves in America, but also saved the Federal Republic of the
United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the
American Constitution and Congress did not then expressly vest in him. No one can deny that the successful
defense and preservation of the territorial integrity of the United States was due in part, if not to a great extent, to
the proclamation of martial law over the territory of Hawaii — main bastion of the outer periphery or the outpost of
the American defense perimeter in the Pacific — which protected the United States mainland not only from actual
invasion but also from aerial or naval bombardment by the enemy. Parenthetically, the impartial observer cannot
accurately conclude that the American Supreme Court acted with courage in its decision in the cases of Ex parte
Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3,
1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the privilege
of the writ of habeas corpus, long after the Civil War and the Second World ended respectively on April 9 or 26,
1865 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases
against the position of the United States President — in suspending the privilege of the writ of habeas corpus in
one case and approving the proclamation of martial law in the other — deliberate as an act of judicial
statesmanship and recognition on their part that an adverse court ruling during the period of such a grave crisis
might jeopardize the survival of the Federal Republic of the United States in its lifeanddeath struggle against an
organized and well armed rebellion within its own borders and against a formidable enemy from without its
territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene the Senate
of the Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the
doctrine of separation of powers under the 1935 Constitution, the processes of this Court cannot legally reach a
coordinate branch of the government or its head. This is a problem that is addressed to the Senate itself for
resolution; for it is purely an internal problem of the Senate. If a majority of the senators can convene, they can
elect a new Senate President and a new Senate President Pro Tempore. But if they have no quorum, those
present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there
is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly
does not justify the invocation of the power of this Court to compel action on the part of a coequal 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 L36164 and L36165 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 coordinate 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 L36165, 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 L36165 — 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 fatherinlaw of petitioner Gerardo Roxas in L36165.
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 L36165 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 L36165 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 L36164 and L36236 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 CommanderinChief 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 coequal 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.
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal
hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are
anathema to a free spirit. But human rights and civil liberties under a democratic or republican state are never
absolute and never immune to restrictions essential to the common weal. A civilized society cannot long endure
without peace and order, the maintenance of which is the primary function of the government. Neither can
civilized society survive without the natural right to defend itself against all dangers that may destroy its life,
whether in the form of invasion from without or rebellion and subversion from within. This is the first law of nature
and ranks second to none in the hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established government, impliedly submits to
certain constraints on his freedom for the general welfare and the preservation of the State itself, even as he
reserves to himself certain rights which constitute limitations on the powers of government. But when there is an
inevitable clash between an exertion of governmental authority and the assertion of individual freedom, the
exercise of which freedom imperils the State and the civilized society to which the individual belongs, there can be
no alternative but to submit to the superior right of the government to defend and preserve the State. In the
language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to a decision involving its
(state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial process. (See Keely vs.
Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing men in the actual clash of
arms. And we think it is obvious, although it was disputed, that the same is true of temporary detention to prevent
apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for all, that
should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program long before September
21, 1972, realized almost too late that he was being deceived by his partymates as well as by the opposition, who
promised him cooperation, which promises were either offered as a bargaining leverage to secure concessions
from him or to delay the institution of the needed reforms. The people have been victimized by such bargaining
and dillydallying. To vert a terrifying blood bath and the breakdown of the Republic, the incumbent President
proclaimed martial law to save the Republic from being overrun by communists, secessionists and rebels by
effecting the desired reforms in order to eradicate the evils that plague our society, which evils have been
employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the government.
By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners and their
counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes
and how many of them are being used in turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the populace, more than for
their own selves, they should be willing to give the incumbent Chief Executive a chance to implement the desired
reforms. The incumbent President assured the nation that he will govern within the framework of the Constitution
and if at any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to believe in his
leadership, he will step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses
and brutalizes the people, then to the battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides the tiger will eventually end inside the
tiger's stomach. He who toys with revolution will be swallowed by that same revolution. History is replete with
examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotined by
the very people whom they at first championed and later deceived. The most bloody of such mass executions by
the wrath of a wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the
leaders of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the
lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers from implementing the Constitution
signed on November 30, 1972; in L36165, to compel respondents Gil Puyat and Jose J. Roy, President and
President ProTempore, 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. 86A, issued on January 5, 1973, to
act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a Constitution after the declaration of
Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they
are highly unwise and objectionable and the people were not sufficiently informed about them.
3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new Constitution at
the referendum conducted in connection therewith, as said assemblies were merely for consultative purposes,
and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same were not
duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the
respondents for comment, with three members of the Court, including the undersigned, voting to dismiss them
outright. The comments were considered motions to dismiss which were set for hearing and extensively argued.
Thereafter both parties submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the competence of this Court to decide, or is it justiciable
and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed
by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore, not justiciable. I
maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not the question presented is political, joint
discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For after the acceptance
of a new Constitution and acquiescence therein by the people by putting it into practical operation, any question
regarding its validity should be foreclosed and all debates on whether it was duly or lawfully ushered into
existence as the organic law of the state become political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86
A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973,
and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86A, claiming that
the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree
No. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and
through these assemblies the proposed 1972 Constitution was submitted to the people for ratification.
Proclamation No. 1102 of the President announced or declared the result of the referendum or plebiscite
conducted through the Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the
new Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized
and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived, what is
sought to be invalidated is the new Constitution itself — the very framework of the present Government since
January 17, 1973. The reason is obvious. The Presidential decrees set up the means for the ratification and
acceptance of the new Constitution and Proclamation No. 1102 simply announced the result of the referendum or
plebiscite by the people through the Citizens Assemblies. The Government under the new Constitution has been
running on its tracks normally and apparently without obstruction in the form of organized resistance capable of
jeopardizing its existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be
set aside by this Court. But has it the power and authority to assume such a stupendous task when the result of
such invalidation would be to subject this nation to divisive controversies that may totally destroy the social order
which the Government under the new Constitution has been admirably protecting and promoting under Martial
Law? That the new Constitution has taken deep root and the people are happy and contended with it is a living
reality which the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of
Representatives have opted to serve in the interim National Assembly provided for under the new Constitution. 15
out of 24 Senators have done likewise. The members of the Congress did not meet anymore last January 22,
1973, not because they were really prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935 Constitution is
a thing of the past. The Executive Department has been fully reorganized; the appointments of key executive
officers including those of the Armed Forces were extended and they took an oath to support and defend the new
Constitution. The courts, except the Supreme Court by reason of these cases, have administered justice under
the new constitution. All government offices have dealt with the public and performed their functions according to
the new Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of
jurisdiction when no power has ... conferred upon it the jurisdiction to declare the Constitution or any part thereof
null and void? It is the height of absurdity and impudence for a court to wage open war against the organic act to
which it owes its existence. The situation in which this Court finds itself does not permit it to pass upon the
question whether or not the new Constitution has entered into force and has superseded the 1935 Constitution. If
it declares that the present Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still
the prevailing organic law. The result would be too anomalous to describe, for then this Court would have to
declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these cases
when it would have no other choice but to uphold the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial
determination, but one addressed to the sovereign power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the government of this Republic is now functioning. To
deny that the new Constitution has been accepted and actually is in operation would be flying in the face of
reason and pounding one's bare head against a veritable stone wall or a heavily reinforced concrete, or simply
"kicking the deadly pricks" with one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at that, submission of
the people thereto by the organization of the government provided therein and observance of its prescriptions by
public officers chosen thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution
claimed to have been adopted not in accordance with constitutional or statutory directives [Miller vs. Johnson, 92
Ky. 589; 189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207;
Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and promulgated according to the forms
of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have
been convicted of the highest crimes known to the law, according to its provisions; the political power
of the government has in many ways recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of our state. We need not consider
the validity of the amendments made after the convention reassembled. If the making of them was in
excess of its power, yet as the entire instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by the judiciary, and violative of the rights of the
people, — who can and properly should remedy the matter, if not to their liking, — if it were to
declare the instrument or a portion invalid, and bring confusion and anarchy upon the state.
(Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an inquiry when applied to a new
constitution, and not an amendment, because the judicial power presupposes an established
government, and if the authority of that government is annulled and overthrown, the power of its
courts is annulled with it; therefore, if a state court should enter upon such an inquiry, come to the
conclusion that the government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of pronouncing a judicial
decision upon the question before it; but, if it decides at all, it must necessarily affirm the existence of
the government under which it exercises its judicial powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established government capable of enacting laws and enforcing their
execution, and appointing judges to expound and administer them. The acceptance of the judicial
office is a recognition of the authority of government from which it is derived. And if the authority of
the government is annulled and overthrown, the power of its courts and other officers is annulled with
it. And if a State court should enter upon the inquiry proposed in this case, and should come to
conclusion that the government under which it acted had been put aside and displaced by an
opposing government it would cease to be a court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally conducted on the basis of the new
Constitution and no state with which we maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new Constitution, see pages 2225 of the
Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86A by this Court
would smack of plain political meddling which is described by the United States Supreme Court as "entering a
political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this
Court to adopt the proper attitude towards political upheavals and realize that the question before Us is political
and not fit for judicial determination. For a political question is one entrusted to the people for judgment in their
sovereign capacity (Tañada vs. Cuenco, G.R. No. L10520, Feb. 28,1967; 100 Phil. 1101), or to a coequal and
coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1;
Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political
question when there would be "the impossibility of undertaking independent resolutions without expressing a lack
of respect due to coordinate branches of government", or when there is "the potentiality of embarrassment from
multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the "Supreme
Law of the Land" in that vast range of legal problems often strongly entangled in popular feeling on which this
Court must pronounce", let us harken to the following admonition of Justice Frankfurter in his dissent in Baker vs.
Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse nor the sword — ultimately rests on
sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's
complete detachment, in fact and appearance, from political entanglements and abstention from
injecting itself into the clash of political forces in political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The new organic law
is now in the plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the
cynics will deny this. This Court should not in the least attempt to act as a superlegislature or a superboard of
canvassers and sow confusion and discord among our people by pontificating there was no valid ratification of the
new Constitution. The sober realization of its proper role and delicate function and its consciousness of the
limitations on its competence, especially situations like this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those who wish the Court to engage in their brand of
activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the
intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution proposed by the
Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by this Court on January 22, 19731, 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
make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971
Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitution was
not validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of this country, whether or not that proposed
Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that we have
mentioned because that issue is a political question that cannot be decided by this Court. This contention by the
Solicitor General is untenable. A political question relates to "those questions which under the Constitution are to
be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been
delegated to the legislative, or to the executive, branch of the government.2 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.3 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 judiciary is the department which is charged with the special duty of determining
the limitations which the law places upon all official actions4 . In the case of Gonzales v. Commission on
Elections5, 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 v. Cuenco6, 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 provision of the constitution. And so, it has been held that the question of whether a
constitution shall be amended or not is a political question which is not in the power of the court to decide, but
whether or not the constitution has been legally amended is a justiciable question.7
My study on the subject of whether a question before the court is political or judicial, based on decisions of the
courts in the United States — where, after all, our constitutional system has been patterned to a large extent —
made me arrive at the considered view that it is in the power of this Court, as the ultimate interpreter of the
Constitution, to determine the validity of the proposal, the submission, and the ratification of any change in the
Constitution. Ratification or nonratification of a constitutional amendment is a vital element in the procedure to
amend the constitution, and I believe that the Court can inquire into, and decide on, the question of whether or
not an amendment to the constitution, as in the present cases, has been ratified in accordance with the
requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly
ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us
involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in these cases
is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been
validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
"Section 1. The Congress in joint session assembled by a vote of three fourths of all the
Members of the Senate and of the House of Representatives voting separately, may
propose amendments to the Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification."
It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by the Convention shall be valid and considered
part of the Constitution when approved by a majority of the votes cast in an election at
which they are submitted to the people for their ratification pursuant to Article XV of the
Constitution.
It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for the ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L35140, October 16, 1971 (41 SCRA
715), speaking through Mr. Justice Barredo, said:
"The Constitutional Convention of 1971, as any other convention of the same nature,
owes its existence and all its authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the people directly as in the case of
a revolutionary convention which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother country or of revolution
against an existing government or of a bloodless seizure of power a la coup d'etat. As to
such kind of conventions, it is absolutely true that the convention is completely without
restraint and omnipotent all wise, and it as to such conventions that the remarks of
Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator
Pelaez refer. No amount of rationalization can belie the fact that the current convention
came into being only because it was called by a resolution of a joint session of Congress
acting as a constituent assembly by authority of Section 1, Article XV of the present
Constitution ... ."
x x x x x x x x x
"As to matters not related to its internal operation and the performance of its assigned
mission to propose amendments to the Constitution, the Convention and its officers and
members are all subject to all the provisions of the existing Constitution. Now we hold
that even as to its latter task of proposing amendments to the Constitution, it is subject
to the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocally states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding, of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article X of the
1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
"An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance, an election is the act of casting and receiving
the ballots, counting them, and making the return." (Hontiveros vs. Altavas, 24 Phil. 632,
637).
"Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or issue.
(Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them — the election of officers, national, state, county, township —
the passing on various other questions submitted for their determination." (29 C.J.S. 13,
citing IowaIllinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358).
"Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d
438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with such statutory
requirements as have been set by the legislature." (People ex rel. Rago v. Lipsky, 63
N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in
29 C.J.S. 38). (Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of public officers except barrio officials and plebiscites
shall be conducted in the manner provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in
any regular or special election or in any plebiscite, he must be registered in the permanent list of
voters for the city, municipality or municipal district in which he resides: Provided, that no person shall
register more than once without first applying for cancellation of his previous registration." (Emphasis
supplied). (Please see also Sections 100102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies
who are 15 years of age or over. Under the provision of Section I of Article V of the 1935
Constitution, the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few instances,
was done by the raising of hands by the persons indiscriminately gathered to participate in the voting,
where even children below 15 years of age were included. This is a matter of common observation,
or of common knowledge, which the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis in declaring whether a
Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would mean the
rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a
question as to whether the Constitution, which is the supreme law of the land, should be ratified or
not, must not be decided by simply gathering people and asking them to raise their hands in answer
to the question of whether the vote for or against a proposed Constitution. The election as provided
by law should be strictly observed in determining the will of the sovereign people in a democracy. In
our Republic, the will of the people must be expressed through the ballot in a manner that is provided
by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands a
wellordered society require. The rule of law must prevail even over the apparent will of the majority
of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the
rule of law, public questions must be decided in accordance with the Constitution and the law. This is
specially true in the case of adoption of a constitution or in the ratification of an amendment to the
Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified, or not:
"When it is said that "the people" have the right to alter or amend the constitution, it must
not be understood that term necessarily includes all the inhabitants of the state. Since
the question of the adoption or rejection of a proposed new constitution or constitutional
amendment must be answered a vote, the determination of it rests with those who, by
existing constitution, are accorded the right of suffrage. But the qualified electors must
be understood in this, as in many other cases, as representing those who have not the
right to participate in the ballot. If a constitution should be abrogated and a new one
adopted, by the whole mass of people in a state acting through representatives not
chosen by the "people" in political sense of the term, but by the general body of the
populace, the movement would be extralegal." (BIack's Constitutional Law, Second
Edition, pp. 4748).
"The theory of our political system is that the ultimate sovereignty is in the people, from
whom springs all legitimate authority. The people of the Union created a national
constitution, and conferred upon it powers of sovereignty on certain subjects, and the
people of each State created a State government, to exercise the remaining powers of
sovereignty so far as they were disposed to allow them to be exercised at all. By the
constitution which they establish, they not only tie up the hands of their official agencies,
but their own hands as well; and neither the officers of the State, nor the whole people
as an aggregate body, are at liberty to take action in opposition to this fundamental law."
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3
So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however unanimous, on a proposal
to amend a constitution, may cure, render innocuous, all or any antecedent failures to
observe commands of that Constitution in respect of the formulation or submission of
proposed amendments thereto, does not prevail in Alabama, where the doctrine of the
stated theory was denied, in obvious effect, by the pronouncement 60 years ago of
broad, wholesome constitutional principles in Collier v. Frierson, supra, as quoted in the
original opinion, ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or thwart its mandates,
except through the peaceful means of a constitutional convention, or of an amendment
according to the mode therein prescribed, or through the exertion of the original right of
revolution. "The Constitution may be set aside by revolution, but it can only be amended
in the way it provides," said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162
S.W. 99, 103. (Johnson vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for the
court must uphold and enforce the Constitution as written until it is amended in the way
which it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A. 560;
McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v.
Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St.
Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not merely directory,
but are mandatory; and a strict observance of every substantial mandatory; and a strict
observance of every substantial requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people as on the legislature, and
the former are powerless by vote of acceptance to give legal sanction to an amendment
the submission of which was made in disregard of the limitations contained in the
constitution." (16 C.J.S. 3536. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the State will result from
the Court's action in declaring the proposed constitutional amendment void. This
statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it
will not be due to the action of the Court but will be the result of the failure of the drafters
joint resolution to observe, follow and obey the plain essential provisions of the
Constitution. Furthermore, to say that, the Court disregards its sworn duty to enforce the
Constitution, chaos and confusion will result, is an inherently weak argument in favor of
the alleged constitutionality of the proposed amendment. It is obvious that, if the Court
were to countenance the violations of the sacramental provisions Constitution, those
who would thereafter desire to violate it disregard its clear mandatory provisions would
resort to the scheme of involving and confusing the affairs of the State then simply tell
the Court that it was powerless to exercise one of its primary functions by rendering the
proper decree to make the Constitution effective." (Graham v. Jones, 3 So. 2d. 761,
793794).
In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail,
because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil.
758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the
elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the
expiration of the period for the filing of the same. However, on October 10, 1947, after the period for
the filing of the certificate of candidacy, Monsale withdrew his certificate of candidacy. But on
November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the
withdrawal of certificate of candidacy. The Commission on Elections, November 8, 1947, ruled that
Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground
that the votes cast for him were stray votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance
of Iloilo. In the count of the ballots during the proceedings in the trial court, it appeared that Monsale
had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of
Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of
his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this
Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be given
effect, as declared by this Court, if certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law mast
be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice because of the existence of martial law in our country. The same
ground holds true as regards to the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972 temporarily
suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the
proposed constitution, be suspended in the meantime." It is, therefore, my view that voting in the
barangays on January 10, 1973 was not free, and so this is one added reason why the results of the
voting in the barangays should not be made the basis for proclamation of the ratification of the
proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of this Republic, and so it should
not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial
compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General maintains that the
primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments must gain
the approval of the majority recognition of the democratic postulate that sovereign resides in the people." It is not
disputed that in a democratic sovereignty resides in the people. But the term "people" must be understood in its
constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective
franchise."8 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 VicePresident 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 VicePresident 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. Crescini9, 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 v. Del Fierro, 10 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 v. Justice of
the Peace of Bacolod, 11 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 exclusively for the benefit of the citizen or class
of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the
state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we talk of sovereign people,
what is meant are the people who act through the duly qualified and registered voters who vote during an election
that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed along with the
term "election" as used in the Provisions of Section 4 of the Philippine Independence Act of the Congress of the
United States, popularly known as the TydingsMcDuffie Law (Public Act No. 127). Said Section 4 of the Tydings
McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the constitution conforms with the
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification
or rejection at an election to he held within months after the date of such certification, on a date to be
fixed by the Philippine Legislature at which election, the qualified voters of the Philippine Islands shall
have an opportunity to vote directly or against the proposed constitution and ordinances append
thereto. Such election shall be held in such manner as may prescribed by the Philippine Legislature
to which the return of the election shall be made. The Philippine Legislature shall certify the result to
the GovernorGeneral of the Philippine Islands, together with a statement of the votes cast, and a
copy of said constitution ordinances. If a majority of the votes cast shall be for the constitution, such
vote shall be deemed an expression of the will of the people of the Philippine Independence, and the
GovernorGeneral shall, within thirty days after receipt of the certification from the Philippine
Legislature, issue a proclamation for the election of officers of the government of the Commonwealth
of the Philippine Islands provided for in the Constitution...
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word "election" in
Section I Article XV of the 1935 Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution,
and also the "election" mentioned in the Independence Act at which "the qualified voters of the Philippine Islands
shall have an opportunity to vote directly for or against the proposed constitution..." It is but logical to expect that
the framers of the 1935 Constitution would provide a mode of ratifying an amendment to that Constitution similar
to the mode of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be done by holding
an election, as the term "election" was understood, and practiced, when the 1935 Constitution as drafted. The
alleged referendum in the citizens assemblies — participated in by persons aged 15 years or more, regardless of
whether they were qualified voters or not, voting by raising their hands, and the results of the voting reported by
the barrio or ward captain, to the municipal mayor, who in turn submitted the report to the provincial Governor,
and the latter forwarding the reports to the Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has exclusive charge of the enforcement and
administration of all laws, relative to the conduct of elections — was not only a nonsubstantial compliance with
the provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional
provision. It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a
substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971 Constitutional
Convention was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution,
the fact is that after the President of the Philippines had issued Proclamation No. 1102 declaring that the said
proposed Constitution "has been ratified by overwhelming majority of all the votes cast by the members of all the
barangays (citizens assemblies) throughout the Philippines and had thereby come into effect" the people have
accepted the new Constitution. What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have been performing their duties apparently
in observance of the provisions of the new Constitution. It could not be otherwise, because the President of the
Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come into
effect, and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some
92 members of the House of Representatives and 15 members of the Senate, of the Congress of the Philippines
had expressed their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII
of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their option to
serve in the interim National Assembly only one them took his oath of office; and of the 92 members of the House
of Representatives who opted to serve in the interim National Assembly, only 22 took their oath of office. The fact
that only one Senator out of 24, and only 22 Representative out of 110, took their oath of office, is an indication
that only a small portion of the members of Congress had manifested the acceptance of the new Constitution. It is
in the taking of the oath of office where the affiant says that he swears to "support and defend the Constitution"
that the acceptance of the Constitution is made manifest. I agree with counsel petitioners in L36165 (Gerardo
Roxas, et al. v. Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the
interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure, that in the
event the new Constitution becomes definitely effective and the interim National Assembly convened, they can
participate in legislative work in the capacity as duly elected representatives of the people, which otherwise they
could not do if they did not manifest their option to serve, and that option had to be made within 30 day from
January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the proposed Constitution does
not become effective, they continue to be members of Congress under the 1935 Constitution. Let it be considered
that the members of the House of Representatives were elected in 1969 to serve a term which will yet expire on
December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of
some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31,
1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and 18 members of the
House of Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience, accept the
reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their
approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the freedom of the
people to express their views regarding the proposed Constitution during the voting in the citizens assemblies,
and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the
citizens assemblies. This doubt has been engendered in my mind after a careful examination and study of the
records of these cases, particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it
may be said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in the
sense that they have continued to live peacefully and orderly under the government that has been existing since
January 17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people
do? In the same way that the people have lived under martial law since September 23, 1972, they also have to
live under the government as it now exists, and as it has existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is operative — whether it is the 1935 Constitution or the new
Constitution. Indeed, there is nothing that the people can do under the circumstances actually prevailing in our
country today — circumstances, known to all, and which I do not consider necessary to state in this opinion. I
cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the people have accepted
the new Constitution, and that because the people have accepted it, the new Constitution should be considered
as in force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article
XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into
effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity of the proposed
Constitution is not in issue in the cases before Us. What the petitioners assail is not the validity of the proposed
Constitution but the validity of Presidential Proclamation No. 1102 which declares the proposed Constitution as
having been ratified and has come into effect. It being my considered view that the ratification of the proposed
Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with the provisions of Section 1 of
Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not be given force and
effect. Their proposed Constitution, therefore, should be considered as not yet validly ratified, and so it is not in
force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of
the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is still
functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite
held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have
adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967, it passed Resolution No.
2 calling a convention to propose amendments to the 1935 Constitution. The Court may take judicial notice of the
fact that the President of the Philippines has reassured the nation that the government of our Republic since the
declaration of martial law is not a revolutionary government, and that he has been acting all the way in
consonance with his powers under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view that the 1935 Constitution
is still in force, I believe Congress may still convene and pass a law calling for an election at which the Constitution
proposed by the 1971 Constitutional Convention will be submitted to the people their ratification or rejection. A
plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we
still have in our country the Rule of Law and that the democratic system of government that has been implanted in
our country by the Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in
democratic and constitutional system in our country. I feel that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced in Proclamation No. 1102, it being very clear that the
provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean is that if this Court now declares that a
new Constitution is now in force because the members of the citizens assemblies had approved the said new
Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in
the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendment
is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by
the people. There will not be stability in our constitutional system, and necessarily no stability in our government.
As a member of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation
in the future.
It appearing to me that the announced ratification of the proposed Constitution through the voting in the citizens
assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part
to be true to my oath of office to defend and support the 1935 Constitution. I am inspired by what the great jurist
and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the
protection and vindication of popular rights will be safe and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because,
as Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because
its possessors failed to stretch forth a saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these
cases. Along with him, I vote to deny the motion to dismiss and give due course to the petitions in these cases.
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 farreaching in its implications. As stressed by respondents, "what petitioners really seek to
invalidate is the new Constitution."1 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,2 it seems to me that the more appropriate course is this Court to give heed to the plea of petitioners that
the most serious attention be paid to their submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due respect for the opinion of my brethren, I must
perforce dissent. It would follow therefore that the legal position taken by the Chief Justice as set forth with his
usual lucidity and thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as
it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief
expression of the reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not expected to be an
oracle given to utterances of eternal verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of powers concept, involved not necessarily as
a participant in the formation of government policy, but as an arbiter of its legality. Even then, there is realism in
what Lerner did say about the American Supreme Court as "the focal point of a set of dynamic forces which [could
play] havoc with the landmarks of the American state and determine the power configuration of the day."3 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."4 Nonetheless, as was stressed
by Professors Black5 and Murphy,6 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 support in a regime where the rule of law holds sway. In discharging
such a role, this Court must necessarily take in account not only what the exigent needs of the present demand
but what may lie ahead in the unexplored and unknown vistas of the future. It must guard against the pitfall of lack
of understanding of the dominant forces at work to seek a better life for all, especially those suffering from the
pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear
case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts
merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it does
not suffice that recourse be had only to what passes for scholarship in the law that could be marred by
inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I cannot, for
reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach the same result as the
majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official action, even with due allowance made for the good faith
that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case with
the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal
of these petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an
approach cannot be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the
people and the government possesses powers only. Essentially then, unless such an authority may either be
predicated on express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an
inquiry as to its validity. Respondents through SolicitorGeneral 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.7 Since the Constitution preeminently 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,8 Tolentino9 and Planas 10 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 in Dillon v. Gloss, 11 "cannot be treated as
unrelated acts, but as succeeding steps in a single endeavor." 12 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 v. Garcia. 13 Thus:
"The term has been made applicable to controversies clearly nonjudicial and therefore beyond its jurisdiction or
to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference must be paid. It has likewise been employed loosely to
characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. If to
be delimited with accuracy, "political questions" should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to full discretionary authority is vested either in the President
or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly falling within the
formulation, the decision reached by the political branches whether in the form of a congressional act or an
executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look
into its validity. It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding
that may be filed only after each coordinate branch has acted. Even when the Presidency or Congress possesses
plenary powers, its improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy.
For the constitutional grant of authority is usually unrestricted. There are limits to what may be done and how it is
to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the
question of whether or not either of the two coordinate branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than political." 14 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." 15 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." 16 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 socalled
political departments of government or has reserved to be settled by its own extragovernmental action." 17 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 18 of Yale and Professor Freund 19 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." 20 It would thus appear that even then this Court was expected not to assume an attitude of timidity
and hesitancy when a constitutional question is posed. There was the assumption of course that it would face up
to such a task, without regard to political considerations and with no thought except that of discharging its trust.
Witness these words Justice Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever
necessary for us to make vehement affirmance during this formative period of political history, it is that we are
independent of the Executive no less than of the Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and
unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it." 22 The hope
of course was that such assertion of independence impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake that what elicits approval on the part of our people of
a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that to do so is
merely to do what is expected of it and that thereby there is no invasion of spheres appropriately belonging to the
political branches. For it needs to be kept in kind always that it can act only when there is a suit with proper
parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated. Then, too, it does
not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs
of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural
consistency and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance
made that for all its care and circumspection this Court manned by human beings fettered by fallibility,
nonetheless earnestly and sincerely striving to do right, the public acceptance of its vigorous pursuit of the task of
assuring that the Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is the teaching
of a host of cases from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 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 SolicitorGeneral 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." 25 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." 26 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 case of conflicting action by different branches of government or of constitutionally
unauthorized governmental action against individuals. The limitation and separation of powers, if they are to
survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over
the boundaries of constitutional power which arise in the process of government." 27 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 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.' " 28 Nor is it only Dean Rostow who could point Frankfurter, reputed to belong to the
same school of thought opposed to judicial activism, if not its leading advocate during his long stay in the United
States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the
demands of judicial review. There is a statement of similar importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat selfconsciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept characterization
of judicial review as undemocratic. Thus his study of Holmes and Brandeis, the following appears: "When it is said
that judicial review is an undemocratic feature of our political system, it ought also to be remembered that
architects of that system did not equate constitutional government with unbridled majority rule. Out of their
concern for political stability and security for private rights, ..., they designed a structure whose keystone was to
consist of barriers to the untrammeled exercise of power by any group. They perceived no contradiction between
effective government and constitutional checks. To James Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he viewed as the
chief problem in erecting a system of free representative government: 'In framing a government which is to be
administered by men over men, the great difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent apparent in
the writings of eminent authorities on the subject evince at the most fears that the American Supreme Court might
overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness of such competence being vested
in judges and of their being called upon to fulfill such a trust whenever appropriate to the decision of a case
before them. That is why it has been correctly maintained that notwithstanding the absence of any explicit
provision in the fundamental law of the United States Constitution, that distinguished American constitutional
historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to the power of courts to
interpret the law, of which the Constitution is part, in connection with the decision of cases." 31 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 v. Madison. 32 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." 33 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 ... ." 34 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 of thought, this meaningful query: "The Constitution nowhere provides that it shall be
what the judges say it is. How, did it come about that the statement not only could be but could become current as
the most understandable comprehensive summary of American Constitutional law?" 35 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." 36 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 v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in 1969, both noted in the opinion
of the Chief Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about
the American Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very
deep into the very being of Congress." 40 For him, the judiciary "ought not to enter this political thicket." Baker has
since then been followed; it has spawned a host of cases. 41 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 v. Avelino, 42 It
does look then that even in the United States, the plea for judicial selfrestraint, 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 selfrestraint 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." 43 As for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam
papers case, 44 he was less than insistent on the American Supreme Court exercising judicial selfrestraint. 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. 45 It has brought forth a plethora of law review articles, the reaction
ranging from guarded conformity to caustic criticism. 46 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 factors,
it nevertheless seems to me that the doctrine of political questions ought to be very sharply confined to where the
functional reasons justify it and that in a give involving its expansion there should be careful consideration also of
the social considerations which may militate against it. The doctrine has a certain specious charm because of its
nice intellectualism and because of the fine deference it permits to expertise, to secret knowledge, and to the
prerogatives of others. It should not be allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of the worth and
significance of judicial review in the United States. I cannot resist the conclusion then that the views advanced on
this subject by distinguished counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the
van, rather than the advocacy of the SolicitorGeneral, 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, 48 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, 49 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 tolerated. Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or disregarded. This is not to deny that a recognition conclusive
effect attached to the electorate manifesting its will to vote affirmatively on the amendments proposed poses an
obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial compliance is enough.
A great many American State decisions may be cited in support of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread, so that this
Court is called upon to give meaning and perspective to what could be considered words of vague generality,
pregnant with uncertainty, still whatever obscurity it possesses is illumined when the light of the previous
legislation is thrown on it. In the first Commonwealth Act, 51 submitting to the Filipino people for approval or
disapproval certain amendments to the original ordinance appended to the 1935 Constitution, it was made that
the election for such purpose was to "be conducted in conformity with the provisions of the Election Code insofar
as the same may be applicable." 52 Then came the statute, 53 calling for the plebiscite on the three 1940
amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral Congress or a
Senate and a House of Representatives to take the place of a unicameral National Assembly, 54 reducing the term
of the President to four years but allowing his reelection with the limitation that he cannot serve more than eight
consecutive years, 55 and creating an independent Commission on Elections. 56 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." 57 The approval of the present parity amendment was by virtue of a Republic Act 58 which
specifically made applicable the then Election Code. 59 There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in
the membership of the House of Representatives a maximum of one hundred eighty and assured the eligibility of
senators and representatives to become members of such constituent body without forfeiting their seats, as
proposed amendments to be voted on in the 1967 elections. 61 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, 62 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." 63 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." 64 From them, as Corwin did stress, emanate "the highest
possible embodiment of human will," 65 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 is not the case, however,
once it is manifested, it is to be accepted as final and authoritative. The government which is merely an agency to
register its commands has no choice but to submit. Its officials must act accordingly. No agency is exempt such a
duty, not even this Court. In that sense, the lack of regularity in the method employed to register its wishes is fatal
in its consequences. Once the fact of acceptance by people of a new fundamental law is made evident, the
judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the courts
as well.
There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not
entirely bereft of persuasive significance. In Miller v. Johnson, 66 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 vote of the state and ratified by
a majority of those voting. The constitution then in force authorized the legislature, the preliminary steps having
been taken, to call a convention "for the purpose of readopting, amending, or changing" it contained no provision
giving the legislature the power to require a submission of its work to a vote of the people. The convention met in
September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vote, and then
adjourned until September following. When the convention reassembled, the delegates made numerous changes
in instrument. As thus amended, it was promulgated by the convention of September 28, 1891, as the new
constitution. An action was brought to challenge its validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms
of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the
courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must
resist until they are overturned by power, and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and
promulgated according to the forms of law. It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution, and are now daily doing so. ... While
the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort, yet it should at the same time be
careful not to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where
such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted,
and its duty requires, the overthrow of the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903
decision, it was contended that the Virginia Constitution reclaimed in 1902 is invalid as it was ordained and
promulgated by the convention without being submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of the convention has been recognized, accepted, and acted upon as
the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed
thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901,
as the Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its provisions;
and the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters
under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election
for their representatives in the Congress of the United States. The Constitution having been thus acknowledged
and accepted by the office administering the government and by the people of the state, and there being no
government in existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in
holding that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only
rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their obedience
and loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised
Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not merely a
case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result as indicated in
Proclamation No. 1102. From the standpoint of respondents then, they could allege that there was more than just
mere acquiescence by the sovereign people. Its will was thus expressed formally and unmistakably. It may be
added that there was nothing inherently objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote
to be deplored. The greater the base of mass participation, the more there is fealty to the democratic concept. It
does logically follow likewise that such circumstances being conceded, then no justifiable question may be raised.
This Court is to respect what had thus received the people's sanction. That is not for me though whole of it.
Further scrutiny even then is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had
as to whether such indeed was the result. This is no more than what the courts do in election cases. There are
other factors to bear in mind. The fact that the President so certified is wellnigh 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 clearcut 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 soulsearching. 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 commanderinchief with all the
constitutional powers it implies. Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue even the tenor of their ways. They are free to act according to its tenets.
That was so these past few weeks, even petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to remain even if the motions to dismiss were
not granted. It might be asked though, suppose the petitions should prevail? What then? Even so, the decision of
this Court need not be executory right away. Such a disposition of a case before this Court is not novel. That was
how it was done in the Emergency Powers Act controversy. 70 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 knighterrant, 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." 71 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.
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 precedentsetting issue submitted by petitioners for the Court's resolution is the validity
and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming
that the Constitution proposed by the 1971 Constitutional Convention "has been ratified by an overwhelming
majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means
of the Citizens Assemblies has substantially complied with the mandate of Article XV of the existing Constitution of
1935 that duly proposed amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the amendments are submitted to the
people for their ratification."1
A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on
November 30, 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with
its own mandate that "(T)his Constitution shall take immediately upon its ratification by a majority of the votes cast
in a plebiscite called for the purpose and except as herein provided, shall supersede the Constitution of Nineteen
hundred and thirtyfive and all amendments thereto."2
Respondents contend that "(A)lthough apparently what is sought to be annulled is Proclamation No.
1102, what petitioners really seek to invalidate is the new Constitution", and their actions must be
dismissed, because:
— "the Court may not inquire into the validity of the procedure for ratification" which is "political in
character" and that "what is sought to be invalidated is not an act of the President but of the people;
— "(T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast as
declared and certified in Proclamation No. 1102 is conclusive on the courts;
— "Proclamation No. 1102 was issued by the President in the exercise of legislative power under
martial law. ... Alternatively, or contemporaneously, he did so as "agent" of the Constitutional
Convention;"
— "alleged defects, such as absence of secret voting, enfranchisement of persons less than 21
years, non supervision (by) the Comelec are matters not required by Article XV of the 1935
Constitution"; (sic)
— "after ratification, whatever defects there might have been in the procedure are overcome and
mooted (and muted) by the fact of ratification"; and
— "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the ratification
of the new Constitution must nonetheless be respected. For the procedure outlined in Article XV was
not intended to be exclusive of other procedures, especially one which contemplates popular and
direct participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102 would really be
"invalidating the new Constitution", the terms and premises of the issues have to be defined.
— Respondents themselves assert that "Proclamation No. 1102 ... is plainly merely declaratory of the
fact that the 1973 Constitution has been ratified and has come into force.4
— The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been
consistently held by the Court in the Gonzales:5 and Tolentino6 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."7
— In the same Tolentino case, this Court further proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the present Charter, any proposal for such amendment
which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments,
cannot receive the sanction of this Court."8
— 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"9 and under the supervision of the
Commission on Elections. 10
— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported
ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with
the mandatory requirements of Article XV of the (1935) Constitution, it would not be "invalidating" the
proposed new Constitution but would be simply declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies referendums does not pass the constitutional test and
that the proposed new Constitution has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the
disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by
citing the selfsame 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 SolicitorGeneral on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11 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 prewar 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
Courts of First Instance; Executive Order No. 184, issued on November 19, 1948, controlling rice and
palay to combat hunger; and other executive orders appropriating funds for other purposes. The
consequences of a blanket nullification of all these executive orders will be unquestionably serious
and harmful. And I hold that before nullifying them, other important circumstances should be inquired
into, as for instance, whether or not they have been ratified by Congress expressly or impliedly,
whether their purposes have already been accomplished entirely or partially, and in the last instance,
to what extent; acquiescence of litigants; de facto officers; acts and contracts of parties acting in
good faith; etc. It is my opinion that each executive order must be viewed in the light of its peculiar
circumstances, and, if necessary and possible, nullifying it, precautionary measures should be taken
to avoid harm to public interest and innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions
holding null and void the executive orders on rentals and export control but to defer judgment on the Rodriguez
and Barredo petitions for judicial declarations of nullity of the executive orders appropriating the 19491950 fiscal
year budget for the government and P6 million for the holding of the 1949 national elections. After rehearsing, he
further voted to also declare null and void the last two executive orders appropriating funds for the 1949 budget
and elections, completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for annulment despite
the great difficulties and possible "harmful consequences" in the following passage, which bears rereading:
However, now that the holding of a special session of Congress for the purpose of remedying the
nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do
hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that
these two executive orders were issued without authority of law.
While in voting for a temporary deferment of the judgment I was moved by the belief that positive
compliance with the Constitution by the other branches of the Government, which is our prime
concern in all these cases, would be effected, and indefinite deferment will produce the opposite
result because it would legitimize a prolonged or permanent evasion of our organic law. Executive
orders which are, in our opinion, repugnant to the Constitution, would be given permanent life,
opening the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring opinion, would come to pass
should the said executive orders be immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress is not now forthcoming.
However, the remedy now lies in the hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a special session should the need for one arise, and
in the latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel
Congress to remain in special session till it approves the legislative measures most needed by the
country.
Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life
in this country, if each of the great branches of the Government, within its own allocated sphere,
complies with its own constitutional duty, uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles underlying its organic structure should be
maintained firm and strong, hard as the best of steel, so as to insure its growth and development
along solid lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and
export control executive orders) likewise observed that "(T)he truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances 'the various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its duty and responsibility has been
considerably lightened by the President's public manifestation of adherence to constitutional processes and of
working within the proper constitutional framework as per his press conference of January 20,1973, wherein he
stated that "(T)he Supreme Court is the final arbiter of the Constitution. It can and will probably determine the
validity of this Constitution. I did not want to talk about this because actually there is a case pending before the
Supreme Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to
appointments, the matter falls under a general provision which authorizes the Prime Minister to appoint additional
members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing
that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions
of whether the submission of the proposed constitutional amendment of the State Constitution providing for an
elective, instead of an appointive, judiciary and whether the proposition was in fact adopted, were justifiable and
not political questions, we may echo the words therein of Chief Justice Whitfield that "(W)e do not seek a
jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our
duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in
its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which,
like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are faced with the
hard choice of maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular mode and manner prescribed therein by
the people, who, in Cooley's words, so "tied up (not only) the hands of their official agencies, but their own hands
as well" 18 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", 19 participated in only by qualified and duly registered voters twenty
one years of age or over 20 and duly supervised by the Commission on Elections, 21 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", 22 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", 23 and that the Comelec is constitutionally "mandated to oversee ... elections (of public officers) and
not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury vs.
Madison 25 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, 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, 26 "(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 of good government and restrictions embodied in our Constitution are real as they should be in any
living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a
definition of the powers of government" placed upon the judiciary the great burden of "determining the nature,
scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments ... but only asserts the solemn and
sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland 27 the "climactic
phrase," 28 "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." 29 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." 30
This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial)
compliance with the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an advance election
of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend Article V, section 1 of the
Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments
that will be proposed in the future ... on other portions of the amended section", this Court stated that "the
constitutional provision in question (as proposed) presents no doubt which may be resolved in favor of
respondents and intervenors. We do not believe such doubt can exist only because it is urged that the end sought
to be achieved is to be desired. Paraphrasing no less than the President of Constitutional Convention of 1934,
Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the same ease and facility in changing
an ordinary legislation. Constitution making is the most valued power, second to none, of the people
in a constitutional democracy such as the one our founding fathers have chosen for this nation, and
which we of the succeeding generations generally cherish. And because the Constitution affects the
lives, fortunes, future and every other conceivable aspect of the lives of all the people within the
country and those subject to its sovereignty, every degree of care is taken in preparing and drafting
it. A constitution worthy of the people for deliberation and study. It is obvious that correspondingly,
any amendment of the Constitution is of no less importance than the whole Constitution itself, and
perforce must be conceived and prepared with as much care and deliberation. From the very nature
of things, the drafters of an original constitution, as already observed earlier, operate without any
limitations, restraints or inhibitions save those that they may impose upon themselves. This is not
necessarily true of subsequent conventions called to amend the original constitution. Generally, the
framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or
changed, not only for reasons purely personal but more importantly, because written constitutions
are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as
they can be adopted to the needs and exigencies of the people, hence, they must be insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of their amendment. And
when such limitations or conditions are so incorporated in the original constitution, it does not lie in
the delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are powerful and omnipotent as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales
vs. Comelec33, 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 amendment per se as well as its relation to the other parts
of the Constitution with which it has to form a harmonious whole. In the context of the present state of
things, where the Convention hardly started considering the merits of hundreds, if not thousands,
proposals to amend the existing Constitution, to present to people any single proposal or a few of
them cannot comply with this requirement. We are of the opinion that the present Constitution does
not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark
as to frame of reference they can base their judgment on. We reject the rationalization that the
present Constitution is a possible frame of reference, for the simple reason that intervenors
themselves are stating the sole purpose of the proposed amendment is to enable the eighteen year
olds to take part in the election for the ratification of the Constitution to be drafted by the Convention.
In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking
for the six members of the Court in Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court 35 in a separate concurrence in Tolentino, expressed their "essential
agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair submission (and) intelligent
rejection" as "minimum requirements that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform every citizen of the provisions to
be amended, and the proposed amendments and the meaning, nature and effects thereof. By this,
we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For as we
have earlier stated, one thing is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. 36
They stressed further the need for undivided attention, sufficient information and full debate, conformably to the
intendment of Article XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18year old as
mature as the 21year 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 18year old be relied upon to vote with
judiciousness when the 21year 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 18year old should
not also shoulder the moral and legal responsibilities of the 21year old? Will he be required to
compulsory military service under the colors? Will the contractual consent be reduced to 18 years? If
I vote against the amendment, will I not be unfair to my own child who will be 18 years old, come
1973?
The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot except as the questions are debated
fully, pondered upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of the
proposed amendment by their traditional pervasive involvement in local elections and politics. They
cannot thus weigh in tranquility the need for and the wisdom proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending process "in
favor of allowing the sovereign people to express their decision on the proposed amendments" as "anachronistic
in the real constitutionalism and repugnant to the essence of the rule of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said section, We must read it as if the
people had said, 'This Constitution may be amended, but it is our will that the amendment must be
proposed and submitted to Us for ratification only in the manner herein provided.' ... Accordingly, the
real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision
on the proposed amendments, if only because it is evident that the very idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of
the rule of law; rather, it is whether or not the provisional nature of the proposed amendment and the
manner of its submission to the people for ratification or rejection conform with the mandate of the
people themselves in such regard, as expressed in, the Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic and contrary to the
plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray
by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other departments of the government or any other official
or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution,
by interpreting and construing its provisions in appropriate cases with the proper parties and by striking down any
act violative thereof. Here, as in all other cases, We are resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of the motion for
reconsideration, succinctly restated this Court's position on the fundamentals, as follows:
— On the premature submission of a partial amendment proposal, with a "temporary provisional or
tentative character": — "... a partial amendment would deprive the voters of the context which is
usually necessary for them to make a reasonably intelligent appraisal of the issue submitted for their
ratification or rejection. ... Then, too, the submission to a plebiscite of a partial amendment, without a
definite frame of reference, is fraught with possibilities which may jeopardize the social fabric. For
one thing, it opens the door to wild speculations. It offers ample opportunities for overzealous leaders
and members of opposing political camps to unduly exaggerate the pros and cons of the partial
amendment proposed. In short, it is apt to breed false hopes and create wrong impressions. As a
consequence, it is bound to unduly strain the people's faith in the soundness and validity of
democratic processes and institutions.
— On the plea to allow submission to the sovereign people of the "fragmentary and incomplete"
proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also,
advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as the
people are sovereign, and the partial amendment involved in this case is being submitted to them.
The issue before Us is whether or not said partial amendment may be validly submitted to the people
for ratification "in a plebiscite coincide with the local elections in November 1971," and this particular
issue will not be submitted to the people. What is more, the Constitution does not permit its
submission to the people. The question sought to be settled in the scheduled plebiscite is whether or
not the people are in favor of the reduction of the voting age.
— On a "political" rather than "legalistic" approach: "Is this approach to the problem too "legalistic?"
This term has possible connotations. It may mean strict adherence to the law, which in the case at
bar is the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific
man of such Supreme Law, the members of the Supreme Court taken the requisite "oath to support
and defend the Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely
that the somewhat strained interpretation of the Constitution being urged upon this Court be tolerated
or, at least, overlooked, upon the theory that the partial amendment on voting age is badly needed
and reflects the will of the people, specially the youth. This course of action favors, in effect, adoption
of a political approach, inasmuch as the advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart from the obvious message of the mass media,
and, at times, of the pulpit, the Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as well as letterhead of some
sectarian educational institutions, generally stating that the writer is 18 years of age and urging that
she or he be allowed to vote. Thus, the pressure of public opinion has brought to bear heavily upon
the Court for a reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the amendment and the popularity thereof are political
questions beyond our province. In fact, respondents and the intervenors originally maintained that
We have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised
is a political one. Aside from the absence of authority to pass upon political question, it is obviously
improper and unwise for the bench to develop into such questions owing to the danger of getting
involved in politics, more likely of a partisan nature, and, hence, of impairing the image and the
usefulness of courts of justice as objective and impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the
people and the very Convention itself. Indeed, the latter and the Constitution it is in the process of
drafting stand essentially for the Rule of Law. However, as the Supreme Law of the land, a
Constitution would not be worthy of its name, and the Convention called upon to draft it would be
engaged in a futile undertaking, if we did not exact faithful adherence to the fundamental tenets set
forth in the Constitution and compliance with its provisions were not obligatory. If we, in effect,
approved, consented to or even overlooked a circumvention of said tenets and provisions, because
of the good intention with which Resolution No. 1 is animated, the Court would thereby become the
Judge of the good or bad intentions of the Convention and thus be involved in a question essentially
political in nature.
This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of
judicial statesmanship in deciding the present case. Indeed, "politics" is the word commonly used to
epitomize compromise, even with principles, for the sake of political expediency or the advancement
of the bid for power of a given political party. Upon the other hand, statesmanship is the expression
usually availed of to refer to high politics or politics on the highest level. In any event, politics, political
approach, political expediency and statesmanship are generally associated, and often identified, with
the dictum that "the end justifies the means." I earnestly hope that the administration of justice in this
country and the Supreme Court, in particular, will adhere to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the submission of
the proposed amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18
to 20 years who comprise more than three (3) million of our population to participate in the ratification of the new
Constitution in so far as "to allow young people who would be governed by the Constitution to be given a say on
what kind of Constitution they will have" is a laudable end, ... those urging the vitality and importance of the
proposed constitutional amendment and its approval ahead of the complete and final draft of the Constitution
must seek a valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our
people in the present Constitution" 41 — so that there may be "submitted, not piecemeal, 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 aboveenunciated 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 socalled entirely new Constitutions. Amendments to an
existing Constitution presumably may be only of certain parts or in toto, and in the latter case would rise to an
entirely new Constitution. Where this Court held in Tolentino that "any amendment of the Constitution is of no less
importance than the whole Constitution itself and perforce must be conceived and prepared with as much care
and deliberation", it would appeal that the reverse would equally be true; which is to say, that the adoption of a
whole new Constitution would be of no less importance than any particular amendment and therefore the
necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process
ordained by the people themselves so that "they (may) be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the Constitution for the amending process
only "by approval by a majority of the votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage
may speak the "will of the body politic", viz, qualified literate voters twenty one years of age or over with one
year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article
XV, for the creation of an independent Commission on Elections with "exclusive charge" for the purpose of
"insuring free, orderly and honest elections" and ascertaining the true will of the electorate — and more, as ruled
by this Court in Tolentino, in the case of proposed constitutional amendments, insuring proper submission to the
electorate of such proposals. 42
2. A Massachussets case 43 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, lawabiding and educated, but also those who are wholly or in part dependents and charges upon
society by reason of immaturity, mental or moral deficiency or lack of the common essentials of education. All
these persons are secured fundamental guarantees of the Constitution in life, liberty and property and the pursuit
of happiness, except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals" governed by a constitution and
common laws in a "social compact ... for the common good" and in another sense of "people" in a "practical
sense" for "political purposes" it was therein fittingly stated that in this sense, "people" comprises many who, by
reason of want of years, of capacity or of the educational requirements of Article 20 of the amendments of the
Constitution, can have no voice in any government and who yet are entitled to all the immunities and protection
established by the Constitution. 'People' in this aspect is coextensive with the body politic. But it is obvious that
'people' cannot be used with this broad meaning of political signification. The 'people' in this connection means
that part of the entire body of inhabitants who under the Constitution are intrusted with the exercise of the
sovereign power and the conduct of government. The 'people' in the Constitution in a practical sense means
those who under the existing Constitution possess the right to exercise the elective franchise and who, while that
instrument remains in force unchanged, will be the sole organs through which the will of the body politic can be
expressed. 'People' for political purposes must be considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political power, their
governments, national and state, have been limited by constitutions, and they have themselves thereby set
bounds to their own power, as against the sudden impulse of mere majorities." 44
From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a majority of the
votes cast at an election at which the amendments are submitted to the people for their ratification", it seems
obvious as abovestated that "people" as therein used must be considered synonymous with "qualified voters" as
enfranchised under Article V, section 1 of the Constitution — since only "people" who are qualified voters can
exercise the right of suffrage and cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the Constitution
and implementing statutes to ascertain and record the will of the people in free, orderly and honest elections
supervised by the Comelec make it imperative that there be strict adherence to the constitutional requirements
laid down for the process of amending in toto or in part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio plebiscites
thus: "SEC. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when called by at least four members of the
barrio council: Provided, however, That no plebiscite shall be held until after thirty days from its approval by either
body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time and place
thereof, the questions or issues to be decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered barrio assembly
members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in
regular elections, and/or declaration by the voters to the board of election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to decide on the
recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances" and the required majority vote is specified: "(F)or taking action on any of
the above enumerated measures, majority vote of all the barrio assembly members registered in the list of the
barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of barrio officials 49 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 by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio
elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the abovecited
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 51 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 52 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; 53
whether the reported votes of approval of the proposed Constitution conditioned upon the nonconvening of the
interim National Assembly provided in Article XVII, section 1 thereof, 54 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 preproclamation 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" 55 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 visavis the
ratification of the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the
contrary, the said minutes fully show that the Convention's proposal and "agency" was that the President issue a
decree precisely calling a plebiscite for the ratification of the proposed new Constitution on an appropriate date,
under the charge of the Comelec, and with a reasonable period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the
resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention
propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite
for the ratification of the proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that copies of this
resolution as approved in plenary session be transmitted to the President of the
Philippines and the Commission on Elections for implementation."
He suggested that in view of the expected approval of the final draft of the new Constitution by the
end of November 1972 according to the Convention's timetable, it would be necessary to lay the
groundwork for the appropriate agencies of the government to undertake the necessary preparation
for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because
section 15, Article XVII on the Transitory Provision, which had already been approved on second and
third readings, provided that the new constitution should be ratified in a plebiscite called for the
purpose by the incumbent President. Delegate Duavit replied that the provision referred to did not
include the appropriation of funds for the plebiscite and that, moreover, the resolution was intended
to serve formal notice to the President and the Commission on Elections to initiate the necessary
preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information
campaign was necessary in order to properly apprise the people of the implications and significance
of the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was
modified to give the President the discretion to choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the President informing him of the
adoption of the new Constitution would not suffice considering that under Section 15 of the Transitory
Provisions, the President would be dutybound to call a plebiscite for its ratification. Delegate Duavit
replied in the negative, adding that the resolution was necessary to serve notice to the proper
authorities to prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of the
plebiscite would be laid down by the Commission on Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of
martial law in order to allow the people to assemble peaceably to discuss the new Constitution.
Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with
the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one
more interpellant and that a prior reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a
resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate
Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the
purpose.
13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was
approved.
Upon request of the Chair, Delegate Duavit restated the resolution for voting.
14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands.
57
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order
and 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 inchief 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 highhanded
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 "CommanderinChief"
clause of the constitution. The contours of such powers have been shaped more by a long line of historical
precedents of Presidential action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers
under the "commanderinchief" 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 quasilegislative powers of Franklin Roosevelt as
"CommanderinChief 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 socalled overage destroyers to Great Britain. The truth is, they were not overage, but had been
recently reconditioned and recommissioned. ... Actually, what President Roosevelt did was to take over for the
nonce Congress's power to dispose of property of the United States (Article IV, Section 3) and to repeal at least
two statutes." (Corwin & Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The
President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet President Wilson,
during World War I on the basis of his powers under the "CommanderinChief" clause created "offices" which
were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirtyfive "executive agencies"
were purely of Presidential creation. On June 7, 1941 on the basis of his powers as "CommanderinChief", he
issued an executive order seizing the North American Aviation plant of Inglewood, California, where production
stopped as a consequence of a strike. This was justified by the government as the exercise of presidential power
growing out of the "duty constitutionally and inherently resting upon the President to exert his civil and military as
well as his moral authority to keep the defense efforts of the United States a going concern" as well as "to obtain
supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a
similar justification, other plants and industries were taken over by the government. It is true that in Youngstown
Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United
States did not sustain the claims that the President could, as the Nation's Chief Executive and Commanderin
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 CommanderinChief. Justice Clark, in his concurrence to the main opinion of the Court, explicitly asserted
that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he regards as threatening the national
security. The same view was shared with vague qualification by Justices Frankfurter and Jackson, two of the
concurring Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further
by quoting with approval a passage extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President
to order withdrawals from the public domain not only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view that the
President in times of a grave crisis does not possess a residual power above or in consequence of his granted
powers, to deal with emergencies that he regards as threatening the national security. The lesson of the Steel
Seizure case, according to Corwin and Koenig, "Unquestionably ... tends to supplement presidential emergency
power to adopt temporary remedial legislation when Congress has been, in the judgment of the President, unduly
remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New
York University Press, 1956).
The accumulation of precedents has thus built up the presidential power under emergency conditions to
"dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law,
or even to supersede it so far as may be requisite to realize the fundamental law of nature and government,
namely, that as much as may be all the members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore, that the President had
no power to issue Presidential Decree Nos. 86 and 86A as well as Proclamation No. 1102, since these measures
were considered indispensable to effect the desired reforms at the shortest time possible and hasten the
restoration of normalcy? It is unavailing for petitioners to contend that we are not faced by an actual "shooting
war" for today's concept of the emergency which justified the exercise of those powers has of necessity been
expanded to meet the exigencies of new dangers and crisis that directly threaten the nation's continued and
constitutional existence. For as Corwin observed: "... today the concept of 'war' as a special type of emergency
warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so that there is
not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from which the New
Deal may be said to have issued, the nation was confronted in the opinion of the late President with an
'emergency greater than war'; and in sustaining certain of the New Deal measures the Court invoked the
justification of 'emergency.' In the final result constitutional practices of wartime have moulded the Constitution to
greater or less extent for peacetime as well, seem likely to do so still more pronouncedly under fresh conditions of
crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional government is resisted openly by
large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or
are bent on capturing it illegally or destroying it altogether. The third crisis, one recognized
particularly in modern times as sanctioning emergency action by constitutional governments, is
economic depression. The economic troubles which plagued all the countries of the world in the early
thirties involved governmental methods of an unquestionably dictatorial character in many
democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And
these are not the only cases which have justified extraordinary governmental action in nations like
the United States. Fire, flood, drought, earthquake, riots, great strikes have all been dealt with by
unusual and of dictatorial methods. Wars are not won by debating societies, rebellions are not
suppressed by judicial injunctions, reemployment of twelve million jobless citizens will not be effected
through a scrupulous regard for the tenets of free enterprise, hardships caused by the eruptions of
nature cannot be mitigated letting nature take its course. The Civil War, the depression of 1933 and
the recent global conflict were not and could not have been successfully resolved by governments
similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship — Crisis of Government in the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the referendum in question not having been done
inaccordance with the provisions of existing election laws, which only qualified voters who are allowed to
participate, under the supervision of the Commission on Elections, the new Constitution, should therefore be a
nullity. Such an argument is predicated upon an assumption, that Article XV of the 1935 Constitution provides the
method for the revision of the constitution, and automatically apply in the final approval of such proposed new
Constitution the provisions of the election law and those of Article V and X of the old Constitution. We search in
vain for any provision in the old charter specifically providing for such procedure in the case of a total revision or a
rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve
a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change
of only specific provisions. The intention of an act to amend is not the change of the entire constitution but only
the improvement of specific parts of the existing constitution of the addition of provisions deemed essential as a
consequence of new constitutions or the elimination of parts already considered obsolete or unresponsive to the
needs of the times.1 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 not disabled from exercising their right as the ultimate source of political power from changing the
old constitution which, in their view, was not responsive to their needs and in adopting a new charter of
government to enable them to rid themselves from the shackles of traditional norms and to pursue with new
dynamism the realization of their true longings and aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of
the youth in the process of ratification who after all constitute the preponderant majority more in accord with the
spirit and philosophy of the constitution that political power is inherent in the people collectively? As clearly
expounded by Justice Makasiar, in his opinion, in all the cases cited where the Courts held that the submission of
the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed
by the constitution, the procedure prescribed by the state Constitution, is so detailed, that specified the manner in
which such submission shall be made, the persons qualified to vote for the same, the date of election and other
definite standards, from which the court could safely ascertain whether or not the submission was in accordance
with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting
opinions involved in the application of the provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the Constitution may be amended or revised.2 This is not true with
our Constitution. In the case of revision there are no "standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the Constitution the method or procedure for the revision
or rewriting of the entire constitution, and if such was their intention, they could and should have so provided.
Precedents were not wanting. The constitutions of the various states of the American Union did provide for
procedures for their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935
Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or
complete change of the Constitution, it is evident that the people have reserved such power in themselves. They
decided to exercise it not through their legislature, but through a Convention expressly chosen for that purpose.
The Convention as an independent and sovereign body has drafted not an amendment but a completely new
Constitution, which decided to submit to the people for approval, not through an act of Congress, but by means of
decrees to be promulgated by the President. In view of the inability of Congress to act, it was within the
constitutional powers of the President, either as agent of the Constitutional Convention, or under his authority
under martial law, to promulgate the necessary measures for the ratification of the proposed new Constitution.
The adoption the new Charter was considered as a necessary basis for all the reforms set in motion under the
new society, to root out the causes of unrest. The imperatives of the emergency underscored the urgency of its
adoption. The people in accepting such procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken. "When the people adopt completely revised
or new constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326330), "the framing or
submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat
of the people, can breathe life into a constitution."
This has to be so because, in our political system, all political power is inherent in the people and free
governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935
Constitution declares that: "Sovereignty resides in the people and all government authority emanate from them."
Evidently the term people refers to the entire citizenry and not merely to the electorate, for the latter is only a
fraction of the people and is only an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an entire Constitution that is
already effective as it has been accepted and acquiesced in by the people as shown by their compliance with the
decree promulgated thereunder, their cooperation in its implementation, and is now maintained by the
Government that is in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced from their acts of conformity, because
under a regime of martial law the people are bound to obey and act in conformity with the orders of the President,
and has absolutely no other choice. The flaw of this argument lies in its application of a mere theoretical
assumption based on the experiences of other nations on an entirely different factual setting. Such an assumption
flounders on the rock of reality. It is true that as a general rule martial law is the use of military forces to perform
the functions of civil government. Some courts have viewed it as a military regime which can be imposed in
emergency situations. In other words, martial rule exists when the military rises superior to the civil power in the
exercise of some or all the functions of government. Such is not the case in this country. The government
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest. Except for the
imposition of curfew hours and other restrictions required for the security of the State, the people are free to
pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive features, generally associated with a
regime of Martial law in other countries. "Upon the other hand the masses of our people have accepted it,
because of its manifold blessings. The once downtrodden rice tenant has at long last been emancipated — a
consummation devoutly wished by every Philippine President since the 1930's. The laborer now holds his head
high because his rights are amply protected and respected." * A new sense of discipline has swiftly spread beyond the corridors of
government into the social order. Responding to the challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes
on undeclared goods and income in unprecedented numbers and amount, lent their labors in massive cooperation — in land reform, in the repair of dikes,
irrigation ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire
country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at long last been
freed from the incubus of fear.
"Martial law has paved the way for a reordering of the basic social structure of the Philippines" reported Frank
Valeo to the United States Senate. "President Marcos has been prompt and surefooted 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 (19651969), Mr. Marcos was discouraged by the failure of
legislators to approve urgently needed reforms. He found his second term further frustrated by
spread riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the
southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and
Indonesia. Manila claims this war is Maoistcoordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will
relinquish them. But, while fettering a free press, terminating Congress and locking up some
opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land are redistributed with
state funds. New roads have been started. The educational system is undergoing revision, a
corruption is diminished. In noncommunist 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 sharecropperabsentee landlord relationship. He is even pushing for a
birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms
and increased wages. (Daily Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of counsel for
petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are by and large applied
and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer
interpreted by presupposing the old basic norm, but by presupposing the new one. The statutes issued under the
old Constitution and not taken over are no longer regarded as valid, and the organs authorized by the old
Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by understanding that in the final
analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely
declaratory of the fact of approval or ratification, but the legitimacy of the government. It is addressed more to the
framework and political character of this Government which now functions under the new Charter. It seeks to
nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners could be judicially decided. "Judicial
power presupposes an established government capable of enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising judicial power." (Luther v. Borden, 48 U.S.
[7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been effected through political action, the
Court whose existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from
passing upon the fact of change by a logical difficulty which is not to be surmounted."5 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."6 It involves in essence a matter which "the sovereign has
entrusted to the socalled political departments of government or has reserved to be settled by its own extra
governmental action."7
The nonjudicial character of such a question has been recognized in American law. "From its earliest opinions
this Court has consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369
U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies which do not lend themselves to judicial
standards and judicial remedies. To classify the various instances as "political questions" is rather a form of
stating this conclusion than revealing of analysis ... The crux of the matter is that courts are not fit instruments of
decision where what is essentially at stake is the composition of those large contests of policy traditionally fought
out in nonjudicial forums, by which governments and the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar, cannot be a
case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the opposite. At bottom, it is the degree of
one's faith — in the nation's leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this Court in
its judgment of March question becomes wholly moot except for this consideration, that, when the
judges as individuals or as a body of individuals come to decide which king or which constitution they
will support and assert to represent, it may often be good judgment for them to follow the lead of the
men who as a practical matter are likely to be looked to by the people as more representative of
themselves and conversely are likely to be more directly in touch with popular sentiment. If, however,
the judges hold too strong views of their own to be able to take this course, they may follow their own
leads at their own hazard. No question of law is involved. (Political Questions, 38 Harvard Law
Review [192425], pp. 305309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L36142, 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 twothirds vote of each house of the
legislature. The secretary of state shall prepare a ballot title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next statewide election. If a majority of the votes cast on
the proposition favor the amendment, it becomes effective thirty days after the certification of the election returns
by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at any time.
Sec. 3. Call by referendum. If during any tenyear 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 tenyear period. If a majority of the votes cast on the question
are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless
the legislature provides for the election of the election delegates at a special election. The secretary of state shall
issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly
as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification of revisions and
ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the constitution, subject
only to ratification by the people. No call for a constitutional convention shall limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be proposed in the
Senate or Assembly, and if twothirds of all the members elected to each of the houses shall vote in favor thereof,
such proposed amendment or amendments shall be entered in their Journals, with the yeas and nays taken
thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the
people in such manner, and at such time, and after such publication as may be deemed expedient. Should more
amendments than one be submitted at the same election they shall be so prepared and distinguished, by
numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such
amendment or amendments, or any of them, by a majority of the qualified electors voting thereon such
amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever twothirds of the members elected to each branch of the Legislature
shall deem it necessary to revise this Constitution, they shall recommend to the electors to vote at the next
general for or against a Convention for that purpose, and if a majority of the electors voting at such election on
the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its next session, provide by
law for calling the same. The Convention shall consist of a number of delegates not to exceed that of both
branches of the Legislature, who shall be chosen in the same manner, and have the same qualifications, as
Members of the Legislature. The delegates so elected shall meet within three months after their election at such
place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in such manner
as the Convention may determine. The returns of such election shall, in such manner as the Convention shall
direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer, and
Secretary of State, and compare the returns so certified to him; and it shall be the duty of the Executive to
declare, by his proclamation, such Constitution, as may have been ratified by a majority of all the votes cast at
such special election, to be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of twothirds 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 twothirds 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 twothirds of all the members elected to each House, such proposed amendment or amendments shall be
entered on their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such
proposed amendment or amendments to be published three months before the next general election in at least
three newspapers in each County in which such newspaper shall be published; and if in the General Assembly
next after the said election such proposed amendment or amendments shall upon yea and nay vote be agreed to
by twothirds 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 twothirds 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 fortyone delegates, one of whom shall be chosen from
each Representative District by the qualified electors thereof, and two of whom shall be chosen from New Castle
County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The
delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their
election. Every delegate shall receive for his services such compensation as shall be provided by law. A majority
of the Convention shall constitute a quorum for the transaction of business. The Convention shall have the power
to appoint such officers, employees and assistants as it may be deem necessary, and fix their compensation, and
provide for the printing of its documents, journals, debates and proceedings. The Convention shall determine the
rules of its proceedings, and be the judge of the elections, returns and qualifications of its members. Whenever
there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect,
ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the Governor,
and such vacancy shall be filled by the qualified electors of such district or county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or at any
special or extraordinary 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 threefifths of the members elected to each house, it shall
be entered upon their respective journals with the yeas and nays and published in one newspaper in each county
where a newspaper is published for two times, one publication to be made not earlier than ten weeks and the
other not later than six weeks, immediately preceding the election at which the same is to be voted upon, and
thereupon submitted to the electors of the State for approval or rejection at the next general election, provided,
however, that such revision or amendment may be submitted for approval or rejection in a special election under
the conditions described in and in the manner provided by Section 3 of Article XVII of the Constitution. If a majority
of the electors voting upon the amendment adopt such amendment the same shall become a part of this
Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of twothirds of all the members of
both Houses, shall determine that a revision of this Constitution is necessary, such determination shall be entered
upon their respective Journals, with yea's and nay's thereon. Notice of said action shall be published weekly in
one newspaper in every county in which a newspaper is published, for three months preceding the next general
election of Representatives, and in those countries where no newspaper is published, notice shall be given by
posting at the several polling precincts in such counties for six weeks next preceding said election. The electors at
said election may vote for or against the revision in question. If a majority of the electors so voting be in favor of
revision, the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution,
said Convention to be held within six months after the passage of such law. The Convention shall consist of a
number equal to the membership of the House of Representatives, and shall be apportioned among the several
counties in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislature, and if the same shall be agreed to by twothirds of all the members of
each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and
nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, and cause the same to be published without
delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of the general
circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever twothirds of the members elected to each branch of
the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all
the electors voting at said election shall have voted for a convention, the legislature shall at the next session
provide by law for calling the same; and such convention shall consist of a number of members, not less than
double the number of the most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and seventy, and in
each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question,
"Shall there be a Convention to revise the Constitution, and amend the same?" shall be decided by the electors
qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting
at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the
General Assembly, at its next session, shall provide by law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any amendment or
amendments to this constitution may be proposed in the senate or house of representatives. If the same shall be
agreed to by 2/3 of the members elected to each house, such amendment or amendments shall be entered on
the journals, respectively, with the yeas and nays taken thereon; and the same shall be submitted to the electors
at the next spring or autumn election thereafter, as the legislature shall direct; and, if a majority of the electors
qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or
amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the year 1961, in
each sixteenth year thereafter and at such times as may be provided by law, the question of a General Revision
of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. In case a
majority of the Electors voting on the question shall decide in favor of a Convention for such purpose, at an
Election to be held not later than four months after the Proposal shall have been certified as approved, the
Electors of each House of Representatives District as then organized shall Elect One Delegate for each Electors
of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District
is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next
succeeding such election, and shall continue their sessions until the business of the convention shall be
completed. A majority of the delegates elected shall constitute a quorum for the transaction of business. ... No
proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval
as hereinafter provided unless by the assent of a majority of all the delegates elected to the convention, the yeas
and nays being entered on the journal. Any proposed constitution or amendments adopted by such convention
shall be submitted to the qualified electors in the manner provided by such convention on the first Monday in April
following the final adjournment of the convention; but, in case an interval of at least 90 days shall not intervene
between such final adjournment and the date of such election. Upon the approval of such constitution or
amendments by a majority of the qualified electors voting thereon such constitution or amendments shall take
effect on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid. Whenever a
majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution, they may
proposed such alterations or amendments, which proposed amendments shall be published with the laws which
have been passed at the same session, and said amendments shall be submitted to the people for their approval
or rejection at any general election, and if it shall appear, in a manner to be provided by law, that a majority of all
the electors voting at said election shall have voted for and ratified such alterations or amendments, the same
shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amendments
shall be submitted at the same time, it shall be so regulated that the voters shall vote for or against each
separately.
Sec. 2. Revision of constitution. Whenever twothirds 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 threefifths 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 twothirds of
the Members elected to each house, shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for
or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have
voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a
Convention to be holden within six months after the passage of such law, and such Convention shall consist of a
number of Members not less that of both branches of the legislature. In determining what is a majority of the
electors voting such election, reference shall be had to the highest number of vote cast at such election for the
candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of the several
towns and places in this state, in warning the first annual meetings for the choice of senators, after the expiration
of seven years from the adoption of this constitution, as amended, to insert expressly in the warrant this purpose,
among the others for the meeting, to wit, to take the sense of the qualified voters on the subject of a revision of
the constitution; and, the meeting being warned accordingly, and not otherwise, the moderator shall take the
sense of the qualified voters present as to the necessity of a revision; and a return of the number of votes for and
against such necessity, shall be made by the clerk sealed up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such return, that the sense of the people of the state has
taken, and that, in the opinion of the majority of the qualified voters in the state, present and voting at said
meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a
convention for that purpose, otherwise the general court shall direct the sense of the people to be taken, and then
proceed in the manner before mentioned. The delegates to be chosen in the same manner, and proportioned, as
the representatives to the general court; provided that no alterations shall be made in this constitution, before the
same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters
present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote. Any amendment or amendments to this
Constitution may be proposed in either branch of the Legislature, and if the same shall be agreed to by a majority
of all the members elected to each of the two houses, such proposed amendment or amendments shall, with
yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their
approval or rejection, at the next regular general election, except when the Legislature, by a twothirds vote of
each house, shall order a special election for that purpose. If a majority of all the electors voting at such election
shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or
against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace
more than one general subject and the voters shall vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which
embrace one general subject, each proposed article shall be deemed a single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall be called by
the Legislature to propose alterations, revisions, or amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention shall first be approved by the people on a referendum
vote at a regular or special election, and any amendments, alterations, revisions, or new Constitution, proposed
by such convention, shall be submitted to the electors of the State at a general or special election and be
approved by a majority of the electors voting thereon, before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may be proposed
in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members
elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the secretary of state to the people for their approval or
rejection, at the next regular election, except when the legislative assembly shall order a special election for that
purpose. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby
become a part of this Constitution. The votes for and against such amendment, or amendments, severally,
whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of state
in the presence of the governor, and if it shall appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith
after such canvass, by his proclamation, to declare the said amendment, or amendments, severally, having
received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof,
and the same shall be in effect as a part of the Constitution from the date of such proclamation. When two or
more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election,
they shall be so submitted that each amendment shall be voted on separately. No convention shall be called to
amend or propose amendments to this Constitution, or to propose a new Constitution, unless the law providing for
such convention shall first be approved by the people on a referendum vote at a regular general election. This
article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative
petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section
1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either
house of the Legislative Assembly and, if the proposed revision is agreed to by at least twothirds 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 statewide primary election, except when the Legislative
Assembly orders a special election for that purpose. A proposed revision may deal with more than one subject
and shall be voted upon as one question. The votes for and against the proposed revision shall be canvassed by
the Secretary of State in the presence of the Governor and, if it appears to the Governor that the majority of the
votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly
following the canvass, declare, by his proclamation, that the proposed revision has received a majority of votes
and has been adopted by the people as the Constitution of the State of Oregon, as the case may be. The revision
shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may be proposed in
either house of the Legislature, and if twothirds of all the members elected of the two houses, shall vote in favor
thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas
and nays taken thereon; and the Legislature shall cause the same to be published in at least one newspaper in
every county of the State, where a newspaper is published, for two months immediately preceding the next
general election, at which time the said amendment or amendments shall be submitted to the electors of the
State, for their approval or rejection, and if a majority of the electors voting thereon shall approve the same, such
amendment or amendments shall become part of this Constitution. If two or more amendments are proposed,
they shall be so submitted as to enable the electors to vote on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever twothirds of the members, elected to each branch
of the Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or against a convention, and, if a majority of all
the electors, voting at such election, shall vote for a convention. The Legislature, at its next session, shall provide
by law for calling the same. The convention shall consist of not less than the number of members in both
branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be proposed in
either branch of the legislature, and, if the same shall be agreed to by twothirds of all the members of the two
houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to
the electors of the state at the next general election, in at least one newspaper of general circulation, published in
each county, and if a majority of the electors shall ratify the same, such amendment or amendments shall become
a part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such manner that the
electors shall vote for or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever twothirds of the members elected to each branch of
the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or against a convention, and if a majority of all
the electors voting at such election shall have voted for a convention, the legislature shall at the next session
provide by a law for calling the same; and such convention shall consist of a number of members, not less than
double that of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it has been
submitted to and adopted by the people.
Footnotes
1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.
2 Chief Justice Concepcion and Justices Fernando and Teehankee.
3 Justice Zaldivar.
4 Case G.R. No. L36164.
5 Case G.R. No. L36236.
6 Case G.R. No. L36293.
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 EstradaKalaw.
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
11 Araneta v. Dinglasan, 84 Phil. 431, 437438. See, also, Gonzales v. Commission on Elections,
L28196 & L28224, Nov. 9, 1967. Emphasis ours.
12 Art. VI, sec. 20(1), Constitution.
13 Art. VII, sec. 10(7), Constitution.
14 Emphasis ours.
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist, 59 So. Rep. 963;
McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d.
907; State ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing Association v.
Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft, 87 So. Rep. 375.
17 Mun. of Malabang v. Benito, L28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L35573, Oct. 11,
1968; Fernandez v. P. Cuerva & Co., L21114, Nov. 25, 1967; Gonzales v. Commission on Elections,
L28224, Nov. 29, 1967; Bara Lidasan v. COMELEC, L28089, Oct. 25, 1967; Mun. of San Juan v.
NAWASA, L22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L19870, Mar. 18, 1967; Pelayo v.
Auditor General, L23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L23326,
Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L20232, Sept. 30, 1964; Guevara v. Inocentes, L
25577, Mar. 15, 1966; Gillera v. Fernandez, L20741, Jan. 31, 1964; Siguiente v. Secretary of
Justice, L20370, Nov. 29, 1963; Mun. of Naguilian v. NAWASA, L18540, Nov. 29, 1963; Herrera v.
Liwag, L20079, Sept. 30, 1963; Aytona v. Castillo, L19313, Jan. 19, 1962; La Mallorca, etc. v.
Ramos, et al., L15476, Sept. 19, 1961; Tan v. De Leon, et al., L15254, Sept. 16, 1961; Macias v.
Commission on Elections, L18684, Sept. 14, 1961; Philippine Tobacco FlueCuring & Redrying Corp.
v. Sabugo, et al., L16017, Aug. 31, 1961; Miller v. Mardo, L15138, July 31, 1961; Cu Bu Liong v.
Estrella, et al., L14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L
14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L14759, July 31,
1961; Liwanag v. Central Azucarera Don Pedro, L15372, July 31, 1961; Lecura v. Regional Office
No. 3, etc., L15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L15693, July 31, 1961;
Pascual v. Sec. of Public Works and Communications, L10405, Dec. 29, 1960; Corominas, Jr. v.
Labor Standards Commission, L14837, June 30, 1961; City of Baguio v. NAWASA, L12032, Aug.
31, 1959; City of Cebu v. NAWASA, L12892, April 20,1960; Montes v. Civil Service Board of Appeals,
101 Phil. 490, Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v.
Mariano, 41 Phil. 322.
18 G.R. Nos. L35925, L35929, L35940, L35941, L35942, L35948, L35953, L35961,
L35965 and L35979, decided on January 22, 1973..
19 L33964, Teodosio Lansang, et al. v. BrigadierGeneral Eduardo M. Garcia; L33965, Rogelio V.
Arienda v. Secretary of National Defense, et al.; L33973, Luzvimindo David v. Gen. Eduardo Garcia,
et al.; L33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L34004, Domingo E. de Lara v.
BrigadierGeneral Eduardo M. Garcia; L34013, Reynaldo Rimando v. Brig. Gen. Eduardo M. Garcia;
L34039, Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L34265, Antolin Oreta, Jr. v. Gen.
Eduardo Garcia, et al.; and L34339, Gary B. Olivar, et al. v. Gen. Eduardo Garcia, et al.
20 5 Phil. 87.
21 91 Phil. 882.
22 G.R. Nos. L28196 and L28224, 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. Emphasis ours.
31 12 L. ed. 581 (1849).
32 Luther v. Borden, supra, p. 598. Emphasis ours.
33 In re McConaughy, supra, p. 416. Emphasis ours.
34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as to the 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 Emphasis ours.
40 The Framing of the Philippine Constitution, by Aruego, Vol. I p. 215.
41 The Framing of the Philippine Constitution, by Aruego, Vol. I pp. 215, 221, 227228.
42 Ibid., pp. 222224.
43 Id., pp. 224227.
44 SEC. 431. Qualifications prescribed for voters. — Every male person who is not a citizen or
subject of a foreign power, twentyone 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 twentyeighth day of
August, nineteen hundred and sixteen, were legal voters and had exercised the right of suffrage.
"(b) Those who own real property to the value of five hundred pesos, declared in their name for
taxation purposes for a period not less than one year prior to the date of the election, or who
annually pay thirty pesos or more of the established taxes.
"(c) Those who are able to read and write either Spanish, English, or a native language.
"SEC. 432. Disqualifications. — The following persons shall be disqualified from voting:
"(a) Any person who, since the thirteenth day of August, eighteen hundred and ninetyeight, 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 feebleminded persons.
"(d) Deafmutes who cannot read and write.
"(e) Electors registered under subsection (c) of the next preceding section who, after failing to make
a sworn statement to the satisfaction of the board of inspectors at any of its two meetings for
registration and revision, that they are incapacitated preparing their ballots due to permanent
physical disability, present themselves at the hour of voting as incapacitated, irrespective whether
such incapacity be real or feigned."
45 L34150, 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
same."
48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071; Ellingham v.
Dye (1912), 178 Ind. 336, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W. 419.
49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that "when a state
constitution enumerates and fixes the qualifications of those who may exercise the right of suffrage,
the legislature cannot take from nor add to said qualifications unless the power to do so is conferred
upon it by the constitution itself."
Since suffrage, according to Webster, is a voice given not only in the choice of a man for an office or
trust, but, also, in deciding a controverted question, it follows, considering the said ruling in Alcantara,
that the constitutional qualifications for voters apply equally to voters in elections to public office and
to voters in a plebiscite.
Similarly, the Revised Election Code provides in its section 2 that all elections of public officers by the
people and all votings in connection with plebiscites shall be conducted in conformity with the
provisions of said Code.
50 Republic Act No. 6388, section 101 of which, in part, provides:
"SEC. 101. Qualifications prescribed for a voter. — Every citizen of the Philippines, not otherwise
disqualified by law, twentyone years of age or over, able to read and write, who shall have resided in
the Philippines for one year and in the city, municipality or municipal district wherein he proposes to
vote for at least six months immediately preceding the election, may vote at any election.
xxx xxx xxx
51 "SEC. 102. Disqualifications. — The following persons shall not be qualified to vote:
"(a) Any person who has been sentenced by final judgment to suffer an imprisonment of not less
than one year, such disability not having been removed by plenary pardon: Provided, however, That
any person disqualified to vote under this paragraph shall automatically reacquire the right to vote
upon expiration of ten years after service of sentence unless during such period, he shall have been
sentenced by final judgment to suffer an imprisonment of not less than one year.
"(b) Any person who has been adjudged by final judgment by competent court of having violated his
allegiance to the Republic of the Philippines.
"(c) Insane or feebleminded 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
"b. Any person who has violated his allegiance to the Republic of the Philippines; and
"c. Insane or feebleminded persons."
53 20 C.J., 179181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena v.
Crescini, 39 Phil. 258.
54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau, 64 S.W.
2d. 168. Emphasis ours.
55 L33325 and L34043, December 29, 1971.
56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Emphasis ours.
57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Emphasis ours.
58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582583. Emphasis ours.
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
62 Ibid.
64 "SEC. 5. Organization of the Commission on Elections. — The Commission shall adopt its own
rules of procedure. Two members of the Commission shall constitute a quorum. The concurrence of
two members shall be necessary for the pronouncement or issuance of a decision, order or ruling.
"The Commission shall have an executive and such other subordinate officers and employees as
may be necessary for the efficient performance of its functions and duties, all of whom shall be
appointed by the Commission in accordance with the Civil Service Law and rules.
"The executive officer of the Commission, under the direction of the Chairman, shall, have charge of
the administrative business of the Commission, shall have the power to administer oaths in
connection with all matters involving the business of the Commission, and shall perform such, other
duties as may he required of him by the Commission.
"SEC. 6. Power of the Commission to Investigate and to Hear Controversy and Issue Subpoena. —
The Commission or any of the members thereof shall, in compliance with the requirement of due
process, have the power to summon the parties to a controversy pending before it, issue subpoenae
and subpoenae duces tecum and otherwise take testimony in any investigation or hearing pending
before it, and delegate such power to any officer of the Commission who shall be a member of the
Philippine Bar. In case of failure of a witness to attend, the Commission, upon proof of service of the
subpoenae to said witness, may issue a warrant to arrest the witness land bring him before the
Commission or officer before whom his attendance is required. The Commission shall have the
power to punish contempts provided for in the Rules of Court under the controversy submitted to the
Commission shall after complaince with the requirements of due process be heard and decided by it
within thirty days after submission of the case.
"The Commission may, when it so requires, deputized any member of any national or local law
enforcement agency and/or instrumentality of the government to execute under its direct and
immediate supervision any of its final decisions, orders, instructions or rulings.
"Any decision, order or ruling of the Commission on election controversies may be reviewed by the
Supreme Court by writ of a certiorari in accordance with the Rules of Court or such applicable laws
as may enacted.
"Any violation of any final executory decision, order or ruling of the Commission shall constitute
contempt thereof."
65 64 S.W. 2d. 168.
66 L35538, Roses, et al. v. Secretary of National Defense, et al.; L35539, Diokno v. Hon. Enrile, et
al.; L35540, Soliven, et al. v. Secretary of National Defense, et al.; L35546, Aquino, Jr., et al. v. Hon.
Enrile, et al.; L35547, Garcia II v. Hon. Enrile, et al.; L35567 Doronila, et al. v. Secretary of National
Defense, et al.; L35573, Randon v. Hon. Enrile, et al.
67 "PRESIDENTIAL DECREE NO. 86A
"STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES).
"WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays
(citizens assemblies) have so far been established, the people would like to decide themselves
questions or issues, both local and national, affecting their day to day lives and their future.
"WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for
"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due
"WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue 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
"2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the
government;
"3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
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
seventythree." (Emphasis ours.).
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Emphasis ours.
69 Art. VII, section 2, 1935 Constitution.
70 Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. Sathre v. Bryne, 258
N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 p 2d. 1022. McKim
v. Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 232.
71 See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588; State ex
rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election Board, 431 P. 2d.
352, Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott, 83
A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board of Elections of Stark County, 88 N.E.
2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W.
2d. 1; Galloway v. Bradburn, 82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994.
72 106 Minn 392, 119 N.W. 408, 409.
73 63 N.J. Law, 289, cited in In re McConaughy, supra.
74 78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.
75 See cases listed on pages 105106, footnotes 56, 57 and 58.
76 On December 19, 1972.
77 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223, 228; Harris v.
Shanahan, 387 P. 2d. 771, 784, 785.
78 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S. 543, 547, 548, 68
L. ed. 841, 843, 44 S. Ct. 405.
79 Art. VII, section 10, paragraph (1).
80 101 Va. 529, 44 S.E. 754.
81 Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62 C.J.S. 749750;
Guevara v. Inocentes, L25577, March 15, 1966.
82 Which, in some respects, is regarded as an organ of the Administration, and the news items
published therein are indisputably censored by the Department of Public Information.
83 Daily Express, November 29, 1972, p. 4. Emphasis ours.
84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.
86 Justice Barredo's opinion in the plebiscite cases.
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
88 Justice Barredo's language.
89 At p. 153, joint opinion of Justices Makalintal and Castro.
90 Joint Opinion of Justices Makalintal and Castro, p. 153.
91 At p. 8, Idem.
ANNEX B
* The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, filed a
separate dissenting opinion when the Court denied a motion for reconsideration, and voted in favor
of the validity of the questioned Resolution. Mr. Justice Enrique M. Fernando joined in the dissent.
* Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed
unsuccessfully as an amendment to the 1935 Constitution, reducing the voting age from 21 to 18, but
the submission of which to a plebiscite was declared invalid by this Court in Tolentino vs. COMELEC,
became a reality of an even more farreaching import — since fifteenyear olds were included in the
Citizens Assemblies.
* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constituting
majorities) have expressed their option.
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
BARREDO, J., CONCURRING:
1 Charito Planas vs. Comelec, et al., L35925, January 22, 1973; Pablo C. Sanidad vs. Comelec,
L35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L35940, January 22,
1973; Eddie B. Monteclaro vs. Comelec, et al., L35941, January 22, 1973; Sedfrey A. Ordoñez, et
al., vs. The National Treasurer of the Philippines, et al., L35942, January 22, 1973; Vidal Tan, et al.,
vs. Comelec, et al., L35948, January 22, 1973; Jose W. Diokno, et al., vs. Comelec,
L35953, January 22, 1973; Jacinto Jimenez vs. Comelec, et al., L35961, January 22, 1973; Raul M.
Gonzales vs. Comelec, et al., L35965, January 22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L
35979, January 22, 1973.
2 Executive Agreements are not included in the corresponding provision of the 1935 Constitution.
3 It Must be recalled that in the Tolentino case, the Constitutional Convention intended to submit one
amendment which was to form part of the Constitution still being prepared by it separately from the
rest of the other parts of such constitution still unfinished, and We held that a piecemeal submission
was improper. We had no occasion to express any view as to how a whole new Constitution may be
ratified.
* In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New York in
1824, died in 1898. Judge Cooley was also professor and later dean of the Law Department of the
University of Michigan and Justice of the State Supreme Court of Michigan from 1864 to 1885, when
he failed to win reelection to the court.
ESGUERRA, J., CONCURRING:
1 Charito Planas v. Commission on Elections, et al., L35925; Pablo C. Sanidad v. Commission on
Elections, L35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L35940; Eddie B.
Monteclaro v. The Commission on Elections, et al., Sedfrey A. Ordoñez, et al. v. The National
Treasurer of Philippines, et al., L35942; Vidal Tan, et al. v. Commission on Elections, et al., L35948;
Jose W. Diokno, et al. v. The Commission on Elections, L35953; Jacinto Jimenez v. Commission on
Elections, et al., L35961; Raul M. Gonzales v. The Honorable Commission on Elections, et al., L
35965; Ernesto Hidalgo v. Commission Elections, et al.,
L35979.
2 See Tañada, et al. v. Cuenco, L10520, Feb. 28, 1957; Baker v. Carr, 369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5 L38196, November 9, 1967, 21 SCRA 774.
6 83 Phil. 1957.
7 McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p. 516. See also
the plebiscite cases, mentioned in footnote 1, ante.
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
1 Memorandum for Respondents, 2.
2 According to the 1935 Constitution: "The Congress in joint session assembled, by a vote of three
fourths of all the members of the Senate and of the House of Representatives voting separately may
propose amendments to this Constitution or call a convention for that purpose. 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.
3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner made this not
entirelyinaccurate 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.
4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 2526 (1938).
5 Black, The People and the Court (1960).
6 Murphy, Elements of Judicial Strategy (1964).
7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103 Phil. 1051 (1957);
Vera v. Arca, L25721, May 26, 1969, 28 SCRA 351.
8 Gonzales v. Commission on Elections, L28196, Nov. 9, 1967, 21 SCRA 774.
9 Tolentino v. Commission on Elections, L24150, Oct. 16, 1971, 41 SCRA 702.
10 Planas v. Commission on Elections, L35925, Jan. 25, 1973.
11 256 US 368 (1921).
12 Ibid, 374375.
13 L33964, Dec. 11, 1971, 42 SCRA 448.
14 Ibid, 504505.
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on Constitutional
Law 355, 387 (1938).
16 Ibid, 395.
I7 Weston, Political Questions, I Selected Essays an Constitutional Law 418, 422 (1938)..
18 Cf. Bickel, The Least Dangerous Branch (1962).
19 Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of the
United States (1962).
20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention (19341935), Appendix L,
800.
21 65 Phil. 56 (1937).
22 Ibid, 96.
23 63 Phil. 139 (1936).
24 L35925, January 22, 1973.
25 Rostow, The Democratic Character of Judicial Review in Selected Essays on Constitutional Law
1938 1962, 1, 2 (1963).
26 Ibid.
27 Ibid, 3.
28 Ibid, 34. The decision of Justice Frankfurter referred to is that of Rochin v. People of California,
342 US 165 (1952).
29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice Frankfurter
found in his opinion in Stein v. New York, 346 US 156 (1953).
30 Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
31 Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450 (1938).
32 1 Cranch 137 (1803).
33 Curtis, Lions Under the Throne, 12 (1947).
34 Addresses and Papers of Charles Evans Hughes, 139140 (1908).
35 Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949).
36 Haines, Charles Grove, The Role of the Supreme Court in American Government and Politics,
17891835, 3 (1960).
37 369 US 186.
38 395 US 486.
39 328 US 549 (1946).
40 Ibid, 556.
41 Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. (1964); Wright v. Rockefeller, 376
US 52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1362
(1964); WMCA v. Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S Ct. (1964); Maryland Committee v.
Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442 (1964); Davis v. Mann, 377 US 678, 12 L ed 2d
609, 84 S Ct. 1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct. 1462 (1964);
Lucas v. Colorado General Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472 (1964); Fortson v.
Dorsey, 379 us 433, 13 L ed 2d 401, 85 S Ct. 498 (1965); Burns v. Richardson, 384 US 73, 16 L ed
2d 376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105, 18 L ed 2d 650, 87 S
Ct. 1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554 (1967).
42 77 Phil. 192 (1946).
43 Ibid, 56.
44 New York Times Company v. United States, 29 L ed. 822 (1971).
45 Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law Review 77 (1959). It is
the first essay in his Principles, Politics and Fundamental Law.
46 The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute Neutrality, 11 J.
Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense of Profession, 34 Rocky Mt. L.
Rev. 123, 13646 (1962); Henkin, Some Reflections on Current Constitutional Controversy, 109 U.
Pa. L. Rev. 637 (1961); Henson, A Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553
(1961); Miller, A Note on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1961), Wright,
The Supreme Court Cannot be Neutral, 40 Texas L. Rev. 599 (1961); Arnold, Professor Hart's
Theology, 73 Harv. L. Rev. 1298 (1960); Black, The Lawfulness of the Segration Decisions, 69 Yale L.
J. 421 (1960); Griswold, Of Time and Attitudes: Professor art and Judge Arnold, 74 Harv. L. Rev. 81
(1960); Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller and
Howell The Myth of Neutrality in Constitutional Adjudication, 27U. Chi. L. Rev. 661 (1960); Mueller &
Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev. 571 (1960); Hart, Forward, The Time
Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Pollak, Racial Domination and Judicial Integrity: A
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959).
47 Cahn, Supreme Court and Supreme Law, 40 (1954).
46 Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 (1957).
49 Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss. 650 (1856); Penn v. Tollison, 26
Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883); McMillan v. Blattner, 67 Iowa 287,
25 NW 245 (1885); State v. Davis, 2D Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15 Mont. 8, 37
Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526 (1895); State v. Powell, 77 Miss. 543, 27
So. 927 (1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind. 104, 59
NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109 Va. 475,
64 SE 342 (1909); People ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v.
Speer, 156 Ky. 783, 162 SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915); State v.
Marcus, 160 Wis. 354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In
re Opinion of Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202 Mich. 692, 168 NW
709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371 (1921); Switzer v. State, 103 Ohio St. 306, 133
NE 552 (1921); Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re Opinion of the Justices, 237
Mars. 589, 130 NE 202 (1921); Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922); Hamilton v.
Deland, 191 NW 829, 221 Mich. 541 (1923); In re Initiative Petition, 89 Okl. 124, 214 P. 186 (1923);
Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924); McAdams v. Henley, 169 Ark. 97, 273 SW 355
(1925); Heinitsh v. Floyd, 130 SC 434, 126 SE 336 (1925); State v. Zimmerman, 187 Wis. 180, 204
NW 803 (1925); Brown v. City of New York, 125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel.
Bahns v. City of New Orleans, 163 La. 777 So. 718 (1927); Duncan v. Record Pub. Co., 145 SC 196,
143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517, 283 P. 532 (1929); School Dist. of City of Pontiac v.
City of Pontiac, 262 Mich. 338, 247 NW 474 (1933); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934);
In re Opinion to Governor, 55 R.I. 56, 178 A. 433 (1935); State ex rel Landis v. Thompson, 120 Fla.
860,163 So. 270 (1935); Tausig v. Lawrence, 328 Pa. 408, 197 A. 235 (1938); Downs v. City of
Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941);
Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmer v. Dunn, 216 SC 558, 59 SE 158
(1950).
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); Senate File No. 31, 25 Neb. 864, 41 NW
981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People, 19 Colo. 441, 36 Pac.
221 (1894); Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW 756
(1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert v. Chicago, R.I. Ry. Co. 171 Mo. 84,
70 SW (1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis, 135 Mich.
556, 98 NW 262 (1904); West v. State, 50 Fla. 154, 39 So. 412 (1905); State v. Winnett, 78 Neb. 379,
110 NW 113 (1907); Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re Mcconaughy, 106
Minn. 392, 119 NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824 (1911); Hammond v.
Clark, 136 Ga. 313, 71 SE 479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee
v. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 Wash. 332, 136 P. 374 (1913); Tabor
v. City of Walla Walla, 77 Wash. 579, 137 P. 1040 (1914); State v. Alderson, 49 Mont. 387, 142 P. 210
(1914); Ramsey v. Persinger, 43 Okl. 41,141 P. 13 (1914); Cress v. Estes, 43 Okl. 213 P. 411 (1914);
Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor, 117 Ark. 465, 175 SW 40 (1915);
Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917); State v. Wetz, 40 N.D. 299, 168 NW 835 (1918);
Ex Parte Ming, 42 Nev. 472, 181 P. 319 (1919); Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin
v. Nolan, 280 Mo. 401, 217 SW 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921);
Thompson v. Livingston, 116 S.C. 412, 107 SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE
532 (1922); Brawner v. Curran, 141 Ind. 586, 119 A. 250 (1922); Fahey v. Hackmann, 291 Mo. 351
SW 752 (1922); Goolsby v. Stephens, 155 Ga. 529, 117 SE 439 (1923); Manos v. State, 98 Tax. Cr.
87, 263 SW 310 (1924); State v. Zimmermann, 187 Wis. 180, 208 NW 803 (1925); Taylor v. King,
284 Pa. 235, 130 A. 407 (1925); Board of Liquidation of State Debt of Louisiana v. WhitneyCentral
Trust and Savings Bank, 168 La. 560, 122 So. 850 (1929); State v. Cline, 118 Neb. 150, 224 NW 6
(1929); California Teacher's Ass'n. v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934); Collier v. Gray, 116
Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. Commission v. Smith, 335 Mo. 840, 74 SW 2d
27 (1934); Mayer v. Adams, 182 Ga. 524, 186 SE 420 (1936); Doody v. State ex rel. Mobile County,
233 Ala. 287, 171 So. 504 (1937); Swanson v. State, 132 Neb. 82, 271 NW 264 (1937); Stonns v.
Heck, 238 Ala. 196, 190 So. 78 (1939); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re
Initiative Petition No. 224, 197 Okl. 432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316 Mich.
694, 26 NW 2d 569 (1947); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948).
51 Commonwealth Act No. 492 (1939).
52 Ibid, Section 3.
53 Commonwealth Act No. 517 (1940).
54 Article VI of the 1935 Constitution.
55 Article VII of the 1935 Constitution.
56 It is to be noted that under Commonwealth Act No. 607 (1940), subsequently amended by
Commonwealth Act No. 657 (1940), there was a statutory creation of an independent Commission on
Elections.
57 Section 3, Commonwealth Act No. 517.
58 Republic Act No. 73 (1946).
59 Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act Numbered
Three Hundred and fiftyseven, otherwise known as the Election Code, and Commonwealth
Numbered Six hundred and fiftyseven, entitled "An Act to Reorganize the Commission on Elections,"
is so far as they are not inconsistent herewith, are hereby made applicable to the election provided
for in this Act."
60 Republic Act 4913 (1967).
61 Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One
hundred eighty, as amended, insofar as they are not inconsistent herewith, are made applicable to
the election provided for in this Act." It is to be remembered that in the plebiscite held, the two
proposals last. Cf. on this point, Gonzales v. Commission on Elections, L28196, Nov. 9, 1967, 21
SCRA 774.
62 The 1935 Constitution provides: "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them." Article II, Section 1.
63 Laski, Grammar of Politics, 4th ed., 34 (1937).
64 Mclver, The Web of Government, 84 (1947).
65 Corwin, The Higher Law Background of American Constitutional Law, in 1 Selected Essays on
Constitutional Law 3 (1938).
66 92 Ky. 589, 18 SW 522.
67 Ibid, 523.
68 101 Va. 829, 44 SE 754.
69 Ibid, 755. A similar approach may be noted in Arie v. State, 23 Okl. 166, 100 P. 23 (1909) and
Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911).
70 Araneta v. Dinglasan. 84 Phil. 368 (1949).
71 Cardozo, The Nature of the Judicial Process, 141 (1921).
1 Section 1, which is the lone section of Art. XV; emphasis supplied.
2 Article XVII, section 16, proposed Constitution of Nov. 30,1972; emphasis supplied.
3 All quotations from respondents' memo of arguments dated March 2, 1973, pp. 25; emphasis
supplied.
4 Respondents' memo dated March 2, 1973, p. 8; emphasis supplied.
5 Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).
6 Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
7 Resolution on motion for reconsideration in Tolentino Comelec, L34150; dated Nov. 4, 1971, at
page 3, per Barredo, J. with seven Justices concurring; emphasis supplied.
8 Idem, at page 4, emphasis supplied.
9 Joint opinion of JJ. Makalintal and Castro, p. 153.
10 Article X, sec. 1 of the Constitution entrusts "exclusive charge" of the conduct of elections to the
Comelec. See also the Election Code of 1971.
11 Araneta vs. Dinglasan (L2044); Araneta vs. Angeles (L2756); Rodriguez vs. Treasurer
(L3054); Guerrero vs. Commissioner of Customs; and Barredo vs. Comelec (L3056), jointly decided
and reported in 84 Phil. 368.
12 Idem, at pp. 384385; emphasis supplied.
13 Idem, at p. 437.
14 Idem, at pp. 435437.
15 Idem, at p. 383. Justice Tuason further duly noted that "These observations, though beyond the
issue as formulated in this decision, may, we trust, also serve to answer the vehement plea that for
good of the Nation, the President should retain his extraordinary powers as long as turmoil and other
ills directly or indirectly traceable to the late war harass the Philippines."
16 Petitioner Monteclaro's notes of oral argument dated February 23, 1973, p. 2, and Annex A
thereof.
17 State vs. Powell, 77 Miss. 543, 27 south 927.
18 Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.
19 Article XV, sec. 1, Constitution.
20 Article V, sec. 1, Constitution.
21 Article X, sec. 2, Constitution.
22 Respondents' memo dated March 2, 1973, p. 5.
23 Respondents' Comment dated Feb. 3, 1973, p. 67.
24 Idem, at p. 46; note in parentheses supplied.
25 1 Cranch 137 (1803).
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak's "The Constitution and the Supreme Court", Vol. 1, p. 221.
29 Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
30 Tolentino vs. Comelec L34150; decision of October 16, 1971, per Barredo, J. at p. 8.
30a ConCon Res. No. 1 proposing the urgent lowering of the voting age to enfranchise the 18year
olds retained the "permissive" language of section 1, Art. V. Thus, the proposed amendment read
"Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified
by law, who are (twenty one) EIGHTEEN years of age or over and are able to read and write ..."
31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
32 Decision of Oct. 16, 1971, at p. 21.
33 21 SCRA 774 (Nov. 9, 1967).
34 Decision of Oct. 16, 1971, at p. 24.
35 Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.
36 Idem at pp. 12.
37 Idem at p. 3.
38 Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J.; pp. 34.
39 Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
40 All quotations are from the Chief Justice's concurring opinion in Tolentino, pp. 47.
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9, 10.
42 This Court thus declared in Tolentino the ConCon voting age reduction resolution as null and void
and prohibited its submittal at the 1971 elections for lack of proper submission since it did not
"provide the voter ... ample basis for an intelligent appraisal of the amendment. "Dec. of October 16,
1971, per Barredo, J.
43 In reOpinion of Justices, 115 N.E. Rep. 922923.
44 Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
45 "Barrios are units of municipalities or municipal districts in which they are situated ... ." Rep. Act
3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
47 Idem, par. 2.
48 Idem, par. 3 and 4, emphasis supplied.
49 One barrio lieutenant and six barrio councilmen; "Voting shall be by secret ballot. ... ." Idem,
sec. 8.
50 Idem, sec. 10, italics supplied. The same section further disqualifies persons convicted by final
judgment to suffer one year or more of imprisonment "within two years after service" or who have
violated their allegiance to the Republic and insane or feebleminded persons.
51 Supra, p. 2.
52 Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners' manifestation and
supplemental rejoinder dated March 21, 1973 in L36165.
53 Respondents' rejoinder dated March 20, 1973 and surrejoinder dated March 29, 1973.
54 Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen million nine hundred
seventy six thousand five hundred sixty one (14,976,561) members of all the Barangays voted for the
adoption of the proposed Constitution, as against seven hundred fortythree thousand eight hundred
sixty nine (743,869) who voted for its rejection; but a majority of those who approved the new
Constitution conditioned their votes on the demand that the interim National Assembly provided in its
Transitory Provisions should not be convened."
55 Respondents' memo dated March 2, 1973, supra, p. 2.
56 As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did not look
on the same with favor, since the constitutional point (that the Comelec has exclusive charge of the
conduct of elections and plebiscites) seems to have been overlooked in the Assemblies."
57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitionerdelegate Sedfrey A.
Ordoñez et. al. in the plebiscite case L359042, par. 12 of petition and admitted in par. 4 of answer of
therein respondents dated Dec. 15, 1972.
ANTONIO, J., CONCURRING:
* First decision promulgated by First Division of the Supreme Court.
1 "When a house is completely demolished and another is erected on the same location, do you
have a changed, repaired and altered house, or do you have a new house? Some of the material
contained in the old house may be used again, some of the rooms may be constructed the same, but
this does not alter the fact that you have altogether another or a new house. We conclude that the
instrument as contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a completely revised or new Constitution." (Wheeler v.
Board of Trustees, 37 S.E. 2d 322, 327).
"Every proposal which affects a change in a Constitution or adds or takes away from it is an
"amendment', while a "revision" implies a reexamination and statement of the Constitution, or some
part of it, in a corrected or improved form." (Const. Secs. 196, 197, Staples v. Gilmer, 33 S.E. 2d 49,
53 183 Va. 613).
"Amendment" and "revision" of constitution are separate procedures each having a substantial field
of application not mere alternative procedures in the same field." (McFadden v. Jordan, 196 P. 2d
787, 797 32 Cal. 2d 330).
2 Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
4 Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota, Nevada, New
Hampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to this opinion.
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
5 "A written constitution is susceptible of change in two ways: by revolution, which implies action not
pursuant to any provision of the constitution itself; and by revision, which implies action pursuant to
some procedural provision in the constitution. This distinction is concerned with the quare and not
with the quantum of change. It may be significant, however, that the alleged alteration does or does
not purport to affect the existence of the court itself. In the nature of things, a revolutionary charge
does not admit judicial power as such to determine the fact of its occurrence. If revolutionary
constitution sets up a court differently constituted from the prerevolutionary court, neither tribunal is
confronted with a substantial problem, for neither can deny the act by which it was created without
denying the fact of its creation. Thus the Supreme Court in Luther v. Borden (supra) uses language
substantially parallel with what has been indicated above as logical explanation of the Duke of York's
case. For the court to give serious judicial consideration to such a question would present "the
singular spectacle of a court sitting as a court to declare that we are not a court." (Brittle v. People, 2
Neb. 198, 214 [1873].) And even the alleged new constitution purports to leave intact the former
court and to permit its work to go on without hiatus, the decision which the judges must make is still
an individual choice to be 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 assess under which commission they are
acting. To put the matter 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 equally obvious, the situation is logically identical where the same men
are nominated to constitute the court under both the old and 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 principles of statesmanship, upon
sovereignty and, its nature modes of action, and upon the bases of government, to justify the 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 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 ease 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 nonachievement of
revolutionary change. For the temptation will be great to treat the matter as a legal question. The
times are peaceful. The changes probably do no 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
deferentially to look to the executive or legislative for a decision that a change has or has not taken
place.
6 & 7 Ibid. pp. 301, 305.
APPENDIX TO OPINION.
@ The inclusion in the Appendix of provisions for Amendment and Revision in State 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.
The Lawphil Project Arellano Law Foundation

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