Javellana v. Executive Secretary

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

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

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

SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-
KALAW , petitioners, vs. ALEJANDRO MELCHOR, in his capacity as
Executive Secretary; JUAN PONCE ENRILE, in his capacity as
Secretary of National Defense; General ROMEO ESPINO, in his
capacity as Chief of Staff of the Armed Forces of the philippines;
CONSTANCIO E. CASTAÑEDA, in his capacity as Secretary of
General Services; Senator GIL J. PUYAT, in his capacity as
President of the Senate; and Senator JOSE ROY, in his capacity as
President Pro Tempore of the Senate , respondents.
[G.R. No. L-36236. March 31, 1973.]
EDDIE B. MONTECLARO, [personally and in his capacity 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 , respondent.
[G.R. No. L-36283. March 31, 1973.]
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO

CD Technologies Asia, Inc. © 2016 cdasiaonline.com
ASODISEN, JR., and RAUL M. GONZALEZ , petitioners, vs. THE
HONORABLE SECRETARY OF NATIONAL DEFENSE, THE
HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL , respondents.
Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada & Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad Roxas Gonzales and Arroyo for petitioners
Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales & Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Solicitor General Estelito P. Mendoza, Solicitor Vicente V . Mendoza and Solicitor Reynato
S. Puno for other respondents.
RESOLUTION
CONCEPCION , J : p
The above entitled ve (5) cases are a sequel of cases G.R. Nos. L-35925, L-
35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979,
decided on January 22, 1973, to which We will hereafter refer collectively plebiscite
cases.
Background of the Plebiscite Cases

The factual setting thereof is set forth in the decision 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 rati cation 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 rati cation or rejection of the
Proposed Constitution on January 15, 1973.
"Soon after, or on December 7, 1972, Charito Planas led, with this Court, Case
G.R. No. L-35925, against the Commission on Elections, the Treasurer of the
Philippines and the Auditor General, to enjoin said 'respondents or their agents
from implementing Presidential Decree No. 73, in any manner, until further orders
of the Court,' upon the grounds, inter alia that said Presidential Decree 'has no
force and effect as law because the calling . . . of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to be used
and the question to be answered by the voters, and the appropriation of public
funds for the purpose, are, by the Constitution, lodged exclusively in Congress . . .,'
and 'there is no proper submission to the people of said Proposed Constitution set
for January 15, 1973, there being no freedom of speech, press and assembly, and
there being sufficient time to inform the people of the contents thereof.'
"Substantially identical actions were led, 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, Director of Printing, the National Treasurer and the Auditor General
(Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections
and the Treasurer of the Philippines (Case G.R. No L-35941), and by Sedfrey A.
Ordoñez, et al. against the National Treasurer and the Commission on Elections
(Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the
Commission on Elections, the Treasurer of the Philippines, the Auditor General
and the Director of Printing (Case G.R. No. L-35948), and by Jose W. Diokno and
Benigno S. Aquino against the Commission on Elections (Case G R No. L-35953);
on December 14, 1972, by Jacinto Jimenez against the Commission on Elections,
the Auditor General, the Treasurer of the Philippines and the Director of the
Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the
Commission on Elections, the Budget Commissioner, the National Treasurer and
the Auditor General (Case G.R. No. L-35965), and on December 16, 1972, by
Ernesto C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case G.R. No. L-
35979).
"In all these cases, except the last (G.R. No. L-35979), the respondents were
required to le their answers 'not later than 12:00 (o'clock) noon of Saturday,
December 16, 1972.' Said cases were, also, set for hearing and partly heard on
Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on
December 19, 1972. By agreement of the parties, the aforementioned last case —
G.R. No. L-35979 — was, also, heard, jointly with the others, on December 19,
1972. At the conclusion of the hearing, on that date, the parties in all of the
aforementioned cases were given a short period of time within which 'to submit
their notes on the points they desire to stress.' Said notes were led 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 rati cation 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 t 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 of cially. Then, again,
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular
session on January 22, 1973, and since the main objection to Presidential Decree
No. 73 was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress unquestionably could
do, particularly in view of the formal postponement of the plebiscite by the
President — reportedly after consultation with, among others, the leaders of
Congress and the Commission on Elections — the Court deemed it more
imperative to defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948
led an 'urgent motion,' praying that said case be decided 'as soon as possible,
preferably not later than January 15, 1973.' It was alleged in said motion, inter
alia.
'6.That the President subsequently announced the issuance of Presidential
Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on
certain public questions [Bulletin Today, January 1, 1973];
'7.That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose —
"[1]The New Society;

"[2]Reforms instituted under Martial Law;
"[3]The holding of a plebiscite on proposed new Constitution and

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

"[2]Do you approve of the reform measures under martial law?
"[3]Do you think that Congress should meet again in regular

session?
"[4]How soon would you like the plebiscite on the new Constitution
to be held?" [Bulletin Today, January 5, 1973].
'9.That the voting by the so-called Citizens Assemblies was announced to take
place during the period from January 10 to January 15, 1973;
'10.That on January 10, 1973, it was reported that one more question would be
added to the four (4) questions previously announced, and that the forms of the
questions would be as follows: —
"[1]Do you like the New Society?
"[2]Do you like the reforms under martial law?
"[3]Do you like Congress again to hold sessions?
"[4]Do you like the plebiscite to be held later?

"[5]Do you like the way President Marcos is running the affairs of
the government?" [Bulletin Today, January 10, 1973; additional question
italics.]
'11.That on January 11, 1973, it was reported that six (6) more questions would
be submitted to the so called Assemblies: —
"[1]Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
"[2]Do you approve of the New Constitution?
"[3]Do you want a plebiscite to be called to ratify the new

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

accordance with the provisions of the 1935 Constitution?
"[5]If the elections would not be held, when do you want the next
elections to be called?
"[6]Do you want martial law to continue?" [Bulletin Today, January
11, 1973; italics supplied.]
'12.That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;
'13. That attached to page 1 of Annex "A" is another page which we marked as
Annex "A-1", and which reads: —
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizen participation in government.

QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is

to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the

plebiscite on the Constitution.
If the Citizens Assemblies approve of the 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 rm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."
'Attention is respectfully invited to the comments on "Question No. 3," which
reads: —
"QUESTION No. 3
The vote of the Citizens Assemblies should be considered the

plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified."
This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
'14.That, in the meantime, speaking on television and over the radio, on January
7, 1973, the President announced that the limited freedom of debate on the
proposed Constitution was being withdrawn and that the proclamation of martial
law and the orders and decrees issued thereunder would thenceforth strictly be
enforced [Daily Express, January 8, 1973];
'15.That petitioners have reason to fear, and therefore state, that the question
added in the last list of questions to be asked to the Citizens Assemblies, namely:
—
"Do you approve of the New Constitution?" —
in relation to the question following it: —

"Do you still want a plebiscite to becalled to ratify the new
Constitution?" —
would be an attempt to by-pass and short-circuit this Honorable Court before
which the question of the validity of the plebiscite on the proposed Constitution is
now pending;
'16.That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;
'17.That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;
'18.That, if such event would happen, then the case before this Honorable Court
could, to all intents and purposes, become moot because, petitioners fear, and
they therefore allege, that on the basis of such supposed expression of the will of
the people through the Citizens Assemblies, it would be announced that the
proposed Constitution, with all its defects, both congenital and otherwise, has
been ratified;
'19.That, in such a situation, the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their of cials
will not know which Constitution is in force.
'20.That the crisis mentioned above can only be avoided if this Honorable Court
will immediately decide and announce its decision on the present petition;
'21.That with the withdrawal by the President of the limited freedom of discussion
on the proposed Constitution which was given to the people pursuant to See. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer
that the proposed plebiscite be prohibited has now collapsed and that a free
plebiscite can no longer be held.'
"At about the same time, a similar prayer was made in a 'manifestation' led by
the petitioners in L-35949, 'Gerardo Roxas, et al, v. Commission on Elections, et
al.,' and L-35942, 'Sedfrey 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 that Tuesday noon, January 16,
1973.' Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in
said Case G.R. No. L-35948 led 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
Rati cation Coordinating Committee and its Chairman, Guillermo de Vega;
their deputies, subordinates and substitutes, and all other of cials and
persons who may be assigned such task, from collecting, certifying, and
announcing and reporting to the President or other of cials concerned, the
so-called Citizens' Assemblies referendum results allegedly obtained when
they were supposed to have met during the period comprised between
January 10 and January 15, 1973, on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion.'
"In support of this prayer, it was alleged —

'3.That petitioners are now before this Honorable Court in order to
ask further that this Honorable Court issue a restraining order enjoining
herein respondents, particularly respondent Commission on Elections as
well as the Department of Local Governments and its head, Secretary Jose
Roño; the Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Rati cation Coordinating Committee and its
Chairman, Guillermo de Vega; and their deputies, subordinates and/or
substitutes, from collecting certifying, announcing and reporting to the
President the supposed Citizens' Assemblies referendum results allegedly
obtained when they were supposed to have met during the period between
January 10 and January 15, 1973, particularly on the two questions quoted
in paragraph 1 of this Supplemental Urgent Motion;
'4.That the proceedings of the so-called Citizens' Assemblies are
illegal, null and void particularly insofar as such proceedings are being
made the basis of a supposed consensus for the rati cation 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 rati cation, are elections at which only
quali ed 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
quali cations or lack thereof, as prescribed in the Election
Code;
[b]Elections or plebiscites for the rati cation 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
rati cation 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 suf cient 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 of cials 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 of cials and agencies may be properly included in the
petition at bar because: —
[a]The herein petitioners have prayed in their petition for

the annulment not only of Presidential Decree No. 73, but also
of "any similar decree, proclamation, order or instruction."
so that Presidential Decree No. 86, insofar at least as it attempts to submit
the proposed Constitution to a plebiscite by the so-called Citizens'
Assemblies, is properly in issue in this case, and those who enforce,
implement, or carry out the said Presidential Decree No. 86, and the
instructions incidental thereto clearly fall within the scope of this petition;
[b]In their petition, petitioners sought the issuance of a
writ of preliminary injunction restraining not only the
respondents named in the petition but also their "agents" from
implementing not only Presidential Decree No. 73, but also
"any other similar decree, order, instruction, or proclamation in
relation to the holding of a plebiscite on January 15, 1973 for
the purpose of submitting to the Filipino people for their
ratification or rejection the 1972 Draft or proposed Constitution
approved by the Constitutional Convention on November 30,
1972"; and finally,
[c]Petitioners prayed for such other relief which may be
just and equitable. [p. 39, Petition].
'Therefore, viewing the case from all angles, the of cials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion, can lawfully he reached by the processes of this Honorable
Court by reason of this petition, considering, furthermore, that the
Commission on Elections has under our laws the power, among others, of:
—
"(a)Direct and immediate supervision and control over

national, provincial, city, municipal and municipal district
of cials 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 of cials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent Motion
are restrained or enjoined from collecting, certifying, reporting or
announcing to the President the results of the alleged voting of the so-
called Citizens' Assemblies, irreparable damage will be caused to the
Republic of the Philippines, the Filipino people, the cause of freedom and
democracy, and the petitioners herein because:
[a]After the result of the supposed voting on the

questions mentioned in paragraph 1 hereof shall have been
announced, a con ict 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 rati ed by reason of the
announcement of the results of the proceedings of the so-
called Citizens' Assemblies will argue that, General Order No. 3,
which shall also be deemed rati ed pursuant to the Transitory
Provisions of the proposed Constitution, has placed
Presidential Decree Nos. 73 and 86 beyond the reach and
jurisdiction of this Honorable Court.'
"On the same date — January 15, 1973 — the Court passed a resolution requiring
the respondents in said case G.R. No. L-35948 to le ' le an answer to the said
motion not later than 4 P.M., Tuesday, January 16, 1973,' and setting the motion
for hearing 'on January 17, 1973, at 9:30 a.m.' While the case was being heard, on
the date last mentioned, at noontime, the Secretary of Justice called on the writer
of this opinion and said that, upon instructions of the President, he (the Secretary
of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102,
which had just been signed by the President. Thereupon, the writer returned to the
Session Hall and announced to the Court, the parties in G.R. No. L-35948 —
inasmuch as the hearing in connection therewith was still going on — and the
public there present that the President had, according to information conveyed by
the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
'BY THE PRESIDENT OF THE PHILIPPINES
'PROCLAMATION NO. 1102
'ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
'WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to rati cation 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, fteen years of age or over, citizens of the Philippines and who
are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
'WHEREAS, the said Citizens Assemblies were established precisely
to broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizenry to express their views on
important national issues;
'WHEREAS, responding to the clamor of the people and pursuant to

Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before the Citizens Assemblies or Barangays: Do
you approve of the New Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
'WHEREAS, fourteen million nine hundred seventy-six thousand ve
hundred sixty-one (14,976,561) members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; while on the question as to whether or
not the people would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a
plebiscite and that the vote of the Barangays (Citizens Assemblies) should
be considered as a vote in a plebiscite;
'WHEREAS, since the referendum results show that more than
ninety- ve (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people;
'NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution proposed by the nineteen
hundred and seventy-one (1971) Constitutional Convention has been
rati ed 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 1 7 th day of January, in the year of
Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS

'President of the Philippines
'By the President:
'ALEJANDRO MELCHOR
'Executive Secretary'
"Such is the background of the cases submitted for Our determination. After
admitting some of the allegations made in the petition in L-35948 and denying
the other allegations thereof, respondents therein alleged in their answer thereto,
by way of af rmative 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' as that 'the President's call for a
plebiscite and the appropriation of funds for this purpose are valid'; 4) that 'there
is not an improper submission' and there can be a plebiscite under Martial Law';
and 5) that the 'argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a
referendum on the proclamation of Martial Law and purports to exercise judicial
power' is 'not relevant and . . . without merit.' Identical defenses were set up in the
other cases under consideration.
"Immediately after the hearing held on January 17, 1973, or since the afternoon of
that date, the Members of the Court have been deliberating on the aforementioned
cases and, after extensive discussions on the merits thereof, have deemed it best
that each Member write his own views thereon and that thereafter the Chief
Justice should state the result or the votes thus cast on the points in issue. Hence,
the individual views of my brethren in the Court are set forth in the opinions
attached hereto, except that, instead of writing their separate opinions, some
Members have preferred to merely concur in the opinion of one of our colleagues."
Then the writer of said decision expressed his own opinion on the issues involved therein,
after which he recapitulated the views of the Members of the Court, as follows:
"1.There is unanimity on the justiciable nature of the issue on the legality of
Presidential Decree No. 73.
"2.On the validity of the decree itself, Justices Makalintal, Castro, Fernando,
Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the
opinion that the issue has become moot and academic, whereas Justices
Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.
"3.On the authority of the 1971 Constitutional Convention to pass the proposed
Constitution or to incorporate therein the provisions contested by the petitioners in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the
issue has become moot and academic. Justices Fernando, Barredo, Makasiar,
Antonio and myself have voted to uphold the authority of the Convention.
"4.Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions despite
the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and
Antonio hold the same view.
"5.On the question whether the proclamation of Martial Law affected the proper
submission of the proposed Constitution to a plebiscite, insofar as the freedom
essential therefor is concerned Justice Fernando is of the opinion that there is a
repugnance 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 rati cation 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 unquali edly that the Proposed
Constitution has not been rati ed 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 rati ed 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
af rmative, for the reasons set forth in their respective opinions. Justices
Fernando, Teehankee, and the writer similarly voted, except as regards Case No. L-
35948 as to which they voted to grant to the petitioners therein a reasonable
period of time within which to le appropriate pleadings should they wish to
contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors
the granting of said period to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the Court should go
farther and decide on the merits everyone of the cases under consideration."
Accordingly, the Court — acting in conformity with the position taken by six (6) of its
members, 1 with three (3) members dissenting, 2 with respect to G.R. No. L-35948, only,
and another member 3 dissenting, as regards all of the cases — dismissed the same,
without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana led Case G.R. No. L-36142 against
the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to
restrain said respondents "and their subordinates or agents, from implementing any of the
provisions of the proposed Constitution not found in the present Constitution' — referring
to that of 1935. The petition therein, led by Josue Javellana, as a "Filipino citizen, and a
quali ed and registered voter" and as "a class suit, for himself, and in behalf of all citizens
and voters similarly situated," was amended on or about January 24, 1973. After reciting in
substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that
the President had announced "the immediate implementation of the New Constitution, thru
his Cabinet, respondents including," and that the latter "are acting without, or in excess of
jurisdiction in implementing the said proposed Constitution" upon the ground: "that the
President, as Commander-in-Chief of the Armed Forces of the Philippines, is without
authority to create the Citizens Assemblies"; that the same "are without power to approve
the proposed Constitution . . ."; "that the President is without power to proclaim the
rati cation 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 led, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro
Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada
against the Executive Secretary, the Secretaries of Finance Justice, Land Reform, and
National Defense, the Auditor General, Budget Commissioner, the Chairman of the
Presidential Commission on Reorganization, the Treasurer of the Philippines, the
Commission on Elections and the Commissioner of Civil Service 4 ; on February 3, 1973, by
Eddie Monteclaro, personally and as President of the National Press Club of the
Philippines, against the Executive Secretary, the Secretary of Public Information, the
Auditor General, Budget Commissioner and the National Treasurer 5 ; and on February 12,
1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M.
Gonzales, 6 against the Executive Secretary, the Secretary of National Defense, the Budget
Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga,
Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the rst as "duly elected
Senator and Minority Floor Leader of the Senate," and the others as "duly elected
members" thereof, led Case G.R. No. L-36165, against the Executive Secretary, the
Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines,
the Secretary of General Services, the President and the President Pro Tempore of the
Senate. In their petition — as amended on January 26, 1973 — petitioners Gerardo Roxas,
et al. allege, inter alia, that the term of of ce of three (3) of the aforementioned petitioners
8 would expire en December 31, 1975, and that of the others 9 on December 31, 1977; that
pursuant to our 1935 Constitution, "which is still in force," Congress of the Philippines
"must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is the
regular customary hour of its opening session"; that "on said day, from 10:00 A.M. up to
the afternoon," said petitioner "along with their other colleagues, were unlawfully prevent
from using the Senate Session Hall, the same having be closed by the authorities in
physical possession and control of the Legislative Building'; that "(a)t about 5:00 to 6:00
P.M. of the said day, the premises of the entire Legislative Building were ordered cleared
by the same authorities, and no one was allowed to enter and have access to said
premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence, respondent
President Pro Tempore Jose Roy were asked by petitioning Senators to perform their
duties under the law and the Rules of the Senate, but unlawfully refrained and continue to
refrain from doing so"; that the petitioners "are ready and willing to perform their duties as
duly elected members of the Senate of the Philippines," but respondents Secretary of
National Defense, Executive Secretary and Chief of Staff, "through their agents and
representatives, are preventing petitioners from performing their duties as duly elected
Senators of the Philippines"; that "the Senate premises in the Congress of the Philippines
Building . . . are occupied by and are under the physical control of the elements of military
organizations under the direction of said respondents"; that, as per "of cial reports, the
Department of General Services . . . is now the civilian agent in custody of the premises of
the Legislative Building"; that respondents "have unlawfully excluded and prevented, and
continue to so exclude and prevent" the petitioners from the performance of their sworn
duties, invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by
action of the so-called Citizens' Assemblies on January 10, 1973 to January 15, 197 ', 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 rati cation 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
of cers 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 rati cation of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and . . . can not have superseded and revoked the 1935
Constitution," for the reasons speci ed 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 of ce 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 speci cally
enjoined by law"; and that "against the above mentioned unlawful acts of the respondents,
the petitioners have no appeal nor other speedy and adequate remedy in the ordinary
course of law except by invoking the equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on
the merits, a writ of preliminary mandatory injunction be issued ordering the respondents
Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed
Forces of the Philippines, and the . . . Secretary of General Services, as well as all their
agents, representatives and subordinates to vacate the premises of the Senate of the
Philippines and to deliver physical possession of the same to the President of the Senate
or his authorized representative"; and that "after hearing, judgment be rendered declaring
null and void Proclamation No. 1102 . . . and any order, decree, or proclamation having the
same import and objective, issuing the writs of prohibition and mandamus, as prayed for
against the above-mentioned respondents, and making the writ of injunction permanent;
and that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy
directing them to comply with their duties and functions as President and President Pro
Tempore, respectively, of the Senate of the Philippines, as provided by law and the Rules of
the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions,
respondents led, with the leave of Court rst had and obtained, a consolidated comment
on said petitions and/or amended petitions, a consolidated comment on said petitions
and/or amended petitions, alleging that the same ought to have been dismissed outright;
controverting petitioners' allegations concerning the alleged lack or impairment of the
freedom of the 1971 Constitutional Convention to approve the proposed Constitution, its
alleged lack of authority to incorporate certain contested provisions thereof, the alleged
lack of authority of the President to create and establish Citizens' Assemblies "for the
purpose of submitting to them the matter of rati cation of the new Constitution," the
alleged "improper or inadequate submission of the proposed constitution," the "procedure
for ratification adopted . . . through the Citizens Assemblies"; and maintaining that: 1) "(t)he
Court is without jurisdiction to act on these petitions"; 2) the questions raised therein are
"political in character and therefore non-justiciable"; 3) "there was substantial compliance
with Article XV of the 1935 Constitution"; 4) "(t)he Constitution was properly submitted to
the people in a free, orderly and honest election"; 5) "Proclamation No. 1102, certifying the
results of the election, is conclusive upon the courts"; and 6) "(t)he amending process
outlined in Article XV of the 1935 Constitution is not exclusive of other modes of
amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, led their separate comment
therein, alleging that "(t)he subject matter" of said case "is a highly political question which,
under the circumstances, this . . . Court would not be in a position to act upon judicially,"
and that, in view of the opinions expressed by three members of this Court in its decision
in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further
proceedings in this case may only be an academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L 36236 to
comment on the petition therein not later than Saturday, February 10, 1973, and setting the
case for hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973,
this Court resolved to consider the comments of the respondents in cases G.R. Nos. L-
36142, L-36161, L-36165, as motions to dismiss the petitions therein, and to set said
cases for hearing on the same date and time as L-36236. On that date, the parties in G.R.
No. L-36283 1 0 agreed that the same be, likewise, heard, as it was, in fact, heard jointly with
the aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L 36236. The hearing,
which began on February 12, shortly after 9:30 a.m., was continued not only that after 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 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 led by their respective opponents. Counsel for the petitioners in G.R.
Nos. L-36164 and L-36165 led 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 le his notes, which was granted, with the understanding that said notes shall
include his reply to the notes already led by the petitioners in G.R. Nos. L-36164 and L-
36165. Counsel for the petitioners, likewise, moved and were granted an extension of time,
to expire on March 10, 1973, within which to le, as they did, their notes in reply to those
submitted by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners in l-
36165 led a "Manifestation and Supplemental Rejoinder," whereas the Of ce of the
Solicitor General submitted in all these cases a "Rejoinder to Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write
his own opinion and serve a copy thereof on his colleagues, and this they did.
Subsequently, the Court discussed said opinions and votes were cast thereon. Such
individual opinions are appended hereto.
Accordingly, the writer will rst express his personal opinion on the issues before the
Court. After the exposition of his aforesaid opinion, the writer will make, concurrently with
his colleagues in the Court, a 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. No. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R.
No. L-36165, and, also, by the Solicitor General, is predicated upon the fact that, in Our
decision in the plebiscite cases, Mr. Justice Barredo 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 is competent to act" in said cases "in the absence of any
judicially discoverable and manageable standards" and because "the access to relevant
information is insuf cient to assure the correct determination of the issue," apart from the
circumstance that "the new constitution has been promulgate and great interests have
already arisen under it" and that the political organ of the Government has recognized its
provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent
evidence . . . about the circumstances attending the holding" of the referendum or
plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and
that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is
true and until overcome by satisfactory evidence" he could not "subscribe to the claim that
such plebiscite was not held accordingly"; and that he accepted "as a fait accompli that the
Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has
been duly ratified."
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these
circumstances, "it seems remote or improbable that the necessary eight (8) votes under
the 1935 Constitution, and much less the ten (10) votes required by the 1972 (1973)
Constitution, can be obtained for the relief sought in the Amended Petition" in G.R. No. L-
36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in
open court, during the hearing of these cases, that he was and is willing to be convinced
that his aforementioned opinion in the plebiscite cases should be reconsidered and
changed. In effect, he thus declared that he had an open mind in connection with the cases
at bar, and that in deciding the same he would not necessarily adhere to said opinion if the
petitioners herein succeeded in convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the
1935 Constitution, eigth (8) votes are necessary to declare invalid the contested
Proclamation No. 1102. I do not believe that this assumption is borne out by any provision
of said Constitution. Section 10 of Article VIII thereof reads:
"All cases involving the constitutionality of a treaty or law shall be heard and
decided by the Supreme Court in banc, and no treaty or law may be declared
unconstitutional without the concurrence of two thirds of all the members of the
Court."
Pursuant to this section, the concurrence of two thirds of all the Members of the Supreme
Court is required only to declare a "treaty or law" unconstitutional. Construing said
provision, in a resolution dated September 16, 1949, then Chief Justice Moran, voicing the
unanimous view of the Members of this Court, postulated:
". . . There is nothing either in the Constitution or in the Judiciary Act requiring the
vote of eight Justices to nullify a rule or regulation or an executive order issued by
the President. It is very signi cant that in the previous drafts of section 10, Article
VIII of the Constitution, 'execution order' and 'regulation' were included among
those that required for their nulli cation the vote of two-thirds of all the members
of the Court. But 'executive order' and 'regulation' were later deleted from the nal
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." 1 1
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government — the Executive and the
Legislative — is present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law(statute) passed by Congress is subject to the approval or
veto of the President, whose disapproval cannot be overridden except by the vote of two-
thirds (2/3) of all members of each House of Congress. 1 2 A treaty is entered into by the
President with the concurrence of the Senate, 1 3 which is not required in the case of rules,
regulations or executive orders which are exclusive acts of the President. Hence, to nullify
the same, a lesser number of votes is necessary in the Supreme Court than that required to
invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by the
President, the dictum applies with equal force to executive proclamations, like said
Proclamation No. 1102, inasmuch as the authority to issue the same is governed by
section 63 of the Revised Administrative Code, which provides:
"Administrative acts and commands of the (Governor-General) President of the
Philippines touching the organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions, parts, or ports of the
(Philippine Islands) Philippines and all acts and commands governing the general
performance of duties by public employees or disposing of issues of general
concern shall be made effective in executive orders.
"Executive orders xing the dates when speci c 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." 1 4
In fact, while executive orders embody administrative acts or commands of the President,
executive proclamations are mainly informative and declaratory in character, and so does
counsel for respondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-36165. 1 5 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 of 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 rati ed 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 rati cation 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. 1 6
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 af rmative 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 rati cation 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 rati ed
by the people, especially that they have done so in accordance with Article XV of the 1935
Constitution. The petitioners maintain that the conclusion 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 not
authority, under the 1935 Constitution, to dispense with said election or plebiscite; that the
proceedings before the Citizens' Assemblies did not constitution and may not be
considered as such plebiscite; that the facts of record abundantly show that the
aforementioned Assemblies could not have been held throughout the Philippines from
January 10 to January 15, 1973; and that, in any event, the proceedings in said Assemblies
are null and void as an alleged rati cation 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 disquali ed to vote
under Article V of the Constitution were allowed to participate therein, because the
provisions of our Election Code were not observed in said Assemblies, because the same
were not held under the supervision of the Commission on Elections, in violations of
section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law
and General Order No. 20, withdrawing or suspending the limited freedom to discuss the
merits and demerits of said proposed Constitution, impaired the people's freedom in
voting thereon, particularly, a viva voce, as it was done in many instances, as well as their
ability to have a reasonable knowledge of the contents of the document on which they
were allegedly called upon to express their views.
Referring now more speci cally to the issue on whether the new Constitution proposed by
the 1971 Constitutional Convention has been rati ed 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, 1 7
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, 1 8 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 rati cation 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, 1 9 questioning Our authority to determine the constitutional suf ciency of the
factual bases of the Presidential proclamation suspending the privileges of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelona v. Baker 2 0 and Montenegro v. Castañeda, 2 1 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 modi ed, in Gonzales v. Commission on Elections, 2 2 the
political-question theory adopted in Mabanag v. Lopez Vito. 2 3 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. 2 4
The reasons adduced in support thereof are, however, substantially the same as those
given in support of the political-question theory advanced in said habeas corpus and
plebiscite cases, which were carefully considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a consequence, Our decision in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis,
which gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are
justiciable, not political, is plain and simple. One of the principal bases of the non-
justiciability of so-called political questions is the principle of separation of powers —
characteristic of the Presidential system of government — the functions of which are
classi ed or divided, by reason of their nature, into three (8) categories, namely: 1) those
involving the making of laws, which are allocated to the legislative department; 2) those
concerned mainly with the enforcement of such laws and of judicial decisions applying
and/or interpreting the same, which belong to the executive department; and 3) those
dealing with the settlement of disputes, controversies or con icts 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 eld 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. 2 5
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
"de ne, 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 nality, not only justiciable controversies between private individuals or
entities, but, also, disputes or con icts between a private individual or entity, on the one
hand, and an of cer or branch of the government, on the other, or between two (2) of cers
or branches of service, when the latter of cer 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
of cer 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 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, 2 6 this Court quoted with approval from In re
McConaughy, 2 7 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 certi cate of the state canvassing board would then be nal,
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 speci cally delegated to some other
department or particular of cer of the government, with discretionary power to
act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn,
50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16
C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle, 151 Ill. 41 37 N.E. 683, 25 L.R.A. 143,
42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether
it will pass a law or submit a proposed constitutional amendment to the people.
The courts have no judicial control over such matters, not merely because they
involve political questions, but because they are matters which the people have by
the Constitution delegated to the Legislature. The Governor may exercise the
powers delegated to him, free from judicial control, so long as he observes the
laws and acts within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a political nature, but
because the Constitution and laws have placed the particular matter under his
control. But every officer under a constitutional government must act according to
law and subject to its restrictions, and every departure therefrom or disregard
thereof must subject him to that restraining and controlling power of the people,
acting through the agency of the judiciary; for it must be remembered that the
people act through courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations
which the law places upon all of cial 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
w ere the greatest contained in any written constitutional document.' (Italics
supplied.)"
and, in an attempt to describe the nature of a political question in terms, it was hoped,
understandable to the laymen, We added that ". . . the term 'political question' connotes,
in legal parlance, what it means in ordinary parlance, namely, a question of policy" in
matters concerning the government of a State, as a body politic. "In other words, in the
language of Corpus Juris Secundum (supra), it refers to 'those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the government.' It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is quali ed, conditional or subject to limitations, the
issue on whether or not the prescribed quali cations or conditions have been met, or the
limitations respected, it justiciable or non-political, the crux of the problem being one of
legality or validity of the contested act, not its wisdom. Otherwise, said quali cations,
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, 2 8 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 satis ed 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." 2 9 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 con ict, 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. 3 0
The Solicitor General has invoked Luther v. Borden 3 1 in support of his stand that the issue
under consideration is non-justiciable in nature. Neither the factual background of that
case nor the action taken therein by the Federal Supreme Court has any similarity with or
bearing on the cases under consideration.
Luther v. Borden was an action for trespass led 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 of cer, 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 dissatis ed 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 rati ed 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 rati ed by the people. "(T)he times and places at which the votes were to be persons
who were to be given, the receive and return them quali cations of the voters having all
been previously authorized and provided for by law passed by the charter government," the
latter formally surrendered all of its power to the new government, established under its
authority, in May 1843, which had been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an
unsuccessful attempt to take possession of the state arsenal in Providence, but he was
repulsed, and, after an "assemblage of some hundreds of armed men under his command
at Chepatchet in the June following which dispersed upon approach of the troops of the
old government, no further effort was made to establish" his government. ". . . until the
Constitution of 1843" — adopted under the auspices of the charter government — "went
into operation, the charter government continued to asset 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
rati ed by the majority of the people, which the Circuit Court rejected, apart from rendering
judgment for the defendants, the plaintiff took the case for review to the Federal Supreme
Court which affirmed the action of the Circuit Court, stating:
"It is worthy of remark, however, when we are referring to the authority of State
decisions, that the trial of Thomas W. Dorr took place after the constitution of
1843 when into operation. The judges who decided that the case held their
authority under that constitution; and it is admitted on all hands that it was
adopted by the people of the State, and is the lawful and established government.
It is the decision, therefore, of a State court, whose judicial authority to decide
upon the constitution and laws of Rhode Island is not questioned by either party
to this controversy, although the government under which it acted was framed
and adopted under the sanction and laws of the charter government.
"The point, then, raised here has been already decided by the courts of Rhode
Island. The question relates, altogether, to the constitution and laws of that State;
and the well settled rule in this court is, that the courts of the United States adopt
and follow the decisions of the State courts in questions which concern merely
the constitution and laws of the State.
"Upon what ground could the Circuit Court of United States which tried this case
have departed from this rule, and disregarded and overruled the decisions of the
courts of Rhode Island? Undoubtedly the courts of the United States have certain
powers under the Constitution and laws of the United States which do not
government has been lawfully established, which the courts of 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." 3 2
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 rst 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 in force at the time of the purported
rati cation of the former, which is essentially a justiciable question. There was, in Luther v.
Borden, a con ict 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 Minnesota had the following to say:
"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that
the courts have no power to determine questions of a political character. It is
interesting historically, but it has not the slightest application to the case at bar.
When carefully analyzed, it appears that it merely determines that the federal
courts will accept as nal and controlling a decision of the highest court of a
state upon a question of the construction of the Constitution of the state . . ." 3 3
Baker v. Carr, 3 4 cited by respondents, involved an action to annul a Tennessee statute
apportioning the seats in the General Assembly among the counties of the State, upon the
theory that the legislation violated the equal protection clause. A district court dismissed
the case upon the ground, among others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed
the appealed decision and held that said issue was justiciable and non-political, inasmuch
as: ". . . (d)eciding whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of that branch
exceeds whatever authority has been committed, is itself a delicate exercise in
constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of
the Constitution . . ."
Similarly, in Powell v. McCormack, 3 5 the same Court, speaking through then Chief Justice
Warren, reversed a decision of the Court of Appeals of New York af rming that of a
Federal District Court, dismissing Powell's action for a declaratory judgment declaring
thereunder that he — whose quali cations 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 . . . " 3 6
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 rati ed in accordance with said Art. XV is a justiciable one and non-
political in nature, and that it is not only subject to judicial inquiry, but, also, that it is the
Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated that "the courts
cannot reject as 'no law suit'" — because it allegedly involves a political question — "a bona
de controversy as to whether some action denominated 'political' exceeds constitutional
authority.'" 3 7
III
Has the proposed new or revised Constitution been rati ed conformably to said Art. XV of
the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon the ground: 1) that the President
"is without authority to create the Citizens' Assemblies" through which, respondents
maintain, the proposed new Constitution has been rati ed; 2) that said Assemblies "are
without power to approve the proposed Constitution"; 3) that the President "is without
power to proclaim the rati cation by the Filipino people of the proposed Constitution"; and
4),that "the election held (in the Citizens' Assemblies) to ratify the proposed Constitution
was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative view, the
petitioners in L-36164 contend: 1) that the President "has no power to call a plebiscite for
the rati cation or rejection" of the proposed Constitution or "to appropriate funds for the
holding of 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 "un t for . . . submission to the people;" 3) that "
(t)he period of time between November 30, 1972 when the 1972 draft was approved and
January 11-15, 1973," when the Citizens' Assemblies supposedly rati ed said draft, "was
too short, worse still, there was practically no time for the Citizens' Assemblies to discuss
the merits of the Constitution which the majority of them have not read and which they
never knew would be submitted to them for rati cation until they were asked the question
— 'do you approve of the New Constitution?' during the said days of the voting"; and that "
(t)here was altogether no freedom of discussion and no opportunity to concentrate on the
matter submitted to them when the 1972 draft was supposedly submitted to the Citizens'
Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view, that: 1) "(w)ith a
government-controlled press, there can never be a fair and proper submission of the
proposed Constitution to the people"; and 2) Proclamation No. 1102 is null and void "
(i)nasmuch as the rati cation process" prescribed "in the 1935 Constitution was not
followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in the
above mentioned cases, the petitioners in L-36283 argue that "(t)he creation of the
Citizens' Assemblies as the vehicle for the rati cation 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." 3 8
The reasons adduced by the petitioners in L-36165 in favor of the negative view have
already been set forth earlier in this opinion. Hence, it is unnecessary to reproduce them
here. So it is, with respect to the positions taken in L-36165 by counsel for therein
respondents Gil J. Puyat and Jose Roy — although more will be said later about them —
and by the Solicitor General, on behalf of the other respondents in that case and the
respondents in the other cases.
1.What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1.That the amendments to the Constitution be proposed either by Congress or by a
convention called for that purpose, "by a vote of three-fourths of all the Members of the
Senate and the House of Representatives voting separately," but "in joint session
assembled";
2.That such amendments be "submitted to the people for their rati cation" at an "election";
and
3.That such amendments be "approved by a majority of the votes cast" in said election.
Compliance with the rst requirement is virtually conceded, although the petitioners in L-
36164 question the authority of the 1971 Constitutional Convention to incorporate certain
provisions into the draft of the new or revised Constitution The main issue in these ve (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 1 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 disquali ed by law, who are twenty-one years of age or over and are
able to read and write, and who shall have resided in the Philippines for one year
and in the municipality wherein they propose to vote for at least six months
preceding the election. The National Assembly shall extend the right of suffrage
to women, if in a plebiscite which shall be held for that purpose within two years
after the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary quali cations shall vote af rmatively 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
of cials. All law enforcement agencies and instrumentalities of the Government,
when so required by the Commission, shall act as its deputies for the purpose of
insuring free, orderly, and honest elections . The decisions, orders, and rulings the
Commission shall be subject to review by the Supreme Court.
"xxx xxx xxx" 3 9
a.Who may vote in a plebiscite under Art. V of the Constitution?

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the
exercise of the right of suffrage. They claim that no other persons than "citizen of the
Philippines not otherwise disquali ed by law, who are twenty-one years of age or over and
are able to read and write, and who shall have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at least six months preceding the
election," may exercise the right of suffrage in the Philippines. Upon the other hand, the
Solicitor General contends that said provision merely guarantees the right of suffrage to
persons possessing the aforementioned quali cations and none of the disquali cations,
prescribed by law, and that said right may be vested by competent authorities in persons
lacking some or all of the aforementioned quali cations, and possessing some of the
aforesaid disquali cations. 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 quali cations 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 in uenced by
the election laws then in force in the Philippines . . ." 4 0 Said committee had recommended:
1) "That the right of suffrage should be exercised only by male citizens of the Philippines."
2) "That it should be limited to those who could read and write." 3) "That the duty to vote
should be made obligatory." It appears that the rst recommendation was discussed
extensively in the Convention, and that, by way of compromise, it was eventually agreed to
include, in section 1 of Art. V of the Constitution, the second sentence thereof imposing
upon the National Assembly, established by the original Constitution — instead of the
bicameral Congress subsequently created by amendment of said Constitution — the duty
to "extend the right of suffrage to women, if in a plebiscite to be held for that purpose
within two years after the adoption of this Constitution, not less than three hundred
thousand women possessing the necessary quali cations shall vote af rmatively on the
question." 4 1
The third recommendation on "compulsory" voting was, also, debated upon rather
extensively, after which it was rejected by the Convention. 4 2 This accounts, in my opinion,
for the permissive language used in the rst sentence of said Art. V. Despite some
debates on the age quali cation — amendments having been proposed to reduce the
same to 18 or 20, which were rejected, and the residence quali cation, as well as the
disquali cations to the exercise of the right of suffrage — the second recommendation
limiting the right of suffrage 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. 4 3
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 quali cations and none of the disquali cations 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 quali cations and having the disquali cations 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 in uenced by the election
laws then in force in the Philippines." Our rst Election Law was Act 1582, passed on
January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and
incorporated into the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof,
and then in the Administrative Code of 1971 — Act 2711 — as chapter 18 thereof, which, in
turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of
said Code of 1917, prescribing, respectively, the quali cations for and disquali cations
from voting, are quoted below. 4 4 In all of these legislative acts, the provisions concerning
the quali cations 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 quali cations
and possessed any of the statutory disquali cations. In short, the history of section 1, Art.
V of the Constitution, shows beyond doubt that the same conferred — not guaranteed —
the authority to exercise the right of suffrage to persons having the quali cations
prescribed therein and none of the disqualifications to be specified in ordinary laws and, by
necessary implication, denied such right to those lacking any of said quali cations or
having any of the aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought
the submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the
1935 Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18)
years, which, however, did not materialize on account of the decision of this Court in
Tolentino v. Commission on Elections, 4 5 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 but a "partial amendment" of said
section 1, which could be amended further, after its rati cation had the same taken place,
so that the aforementioned partial amendment was, for legal purposes, no more than a
provisional or temporary amendment. Said partial amendment was predicated upon the
generally accepted contemporary construction that, under the 1935 Constitution, persons
below twenty-one (21) years of age could not exercise the right of suffrage, without a
previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies
may vote in barrio as plebiscites is, to say the least, a debatable one. Indeed, there seems
to be a con ict between the last paragraph of said section 6 of Rep. Act No. 3590, 4 6
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, 4 7 "(a)ll duly registered barrio
assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must
be citizens "of the Philippines, twenty-one years of age or over, able to read and write," and
residents of the barrio "during the six months immediately preceding the election, duly
registered in the list of voters" and "not otherwise disquali ed . . ." — just like the provisions
of the present and past election codes of the Philippines and Art. V of the 1935
Constitution — "may vote in the plebiscite."
I believe, however, that the apparent con ict should be resolved in favor of the 21-year-old
members of the assembly, not only because this interpretation is in accord with Art. V of
the Constitution, but, also, because provisions of a Constitution — particularly of a written
and rigid one, like ours — are generally accorded a mandatory status — unless the intention
to the contrary is manifest, which is not so as regards said Art. V — for otherwise they
would not have been considered suf ciently important to be included in the Fundamental
Law of the land. 4 8 Besides, it would be illogical, if not absurd, to believe that Republic Act
No. 3590 requires, for the most important measures for which it demands — in addition to
the favorable action of the barrio council — the approval of the barrio assembly through a
plebiscite, lesser quali cations 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 of cers , not to plebiscites for the
rati cation of amendments to the Fundamental Law or a revision thereof, or of an entirely
new Constitution, and to permit the legislature to require lesser quali cations for such
rati cation, notwithstanding the fact that the subject thereof is much more important — if
not fundamental, such as the basic changes introduced in the draft of the revised
Constitution adopted by the 1971 Constitutional Convention, which are intended to be in
force permanently, or, at least, for many decades, and to affect the way of life of the nation
— and, accordingly demands greater experience and maturity on the part of the electorate
than that required for the election of public of cers, 4 9 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 quali cations laid down in both the Constitution
and the present Election Code, 5 0 and of whether or not they are disquali ed under the
provisions of said Constitution and Code, 5 1 or those of Republic Act No. 3590, 5 2 have
participated and voted in the Citizens' Assemblies that have allegedly rati ed the new or
revised Constitution drafted by the 1971 Constitutional Convention.
In fact, according to the latest of cial data, the total number of registered voters 21 years
of age or over in the entire Philippines, available in January 1973, was less than 12 million.
Yet, Proclamation No. 1102 states that 14,976,561 "members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed Constitution, as against . . .
743,869 who voted for its rejection," whereas, on the question whether or not the people
still wanted a plebiscite to be called to ratify the new Constitution, ". . . 14,298,814
answered that there was no need for a plebiscite and that the vote of the Barangays
(Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is
conceded that the number of people who allegedly voted at the Citizens' Assemblies for
exceeded the number of registered voters under the Election Code in force in January
1973.
It is thus clear that the proceedings held in such Citizens' Assemblies — and We have more
to say on this point in subsequent pages — were fundamentally irregular, in that persons
lacking the quali cations 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
quali ed voters, the proceedings in the Citizens' Assemblies must be considered null and
void. 5 3
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 . . ." 5 4
In Usman v. Commission on Elections, et al., 5 5 We held:
"Several circumstances, defying exact description and dependent mainly on the
factual milieu of the particular controversy, have the effect of destroying the
integrity and authenticity of disputed election returns and of avoiding their prima
facie value and character. If satisfactorily proven, although in a summary
proceeding, such circumstances as alleged by the affected or interested parties,
stamp the election returns with the indelible mark of falsity and irregularity, and,
consequently, of unreliability, and justify their exclusion from the canvass."
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed
amendment to the Fundamental Law to be "valid" as part thereof, and the term "votes cast"
has a well-settled meaning.
"The term 'votes cast' . . . was held in Smith v. Renville County Commissioners, 65
N.W. 956, 64 Minn. 16, to have been used as an equivalent of 'ballots cast.'" 5 6
"The word 'cast' is defined as 'to deposit formally or officially.'" 5 7
"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 de ne a 'vote cast' as the exercise on a ballot of

the choice of the voter on the measure proposed." 5 8
In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots —
not orally or by raising hands — by the persons taking part in plebiscites. This is but natural
and logical, for, since the early years of the American regime, we had adopted the
Australian Ballot System, with its major characteristics, namely, uniform of cial ballots
prepared and furnished by the Government and secrecy in the voting, with the advantage of
keeping records that permit judicial inquiry, when necessary, into the accuracy of the
election returns. And the 1935 Constitution has been so consistently interpreted in all
plebiscites for the rati cation or rejection of proposed amendments thereto, from 1935 to
1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab
initio.
b.How should the plebiscite be held? (COMELEC supervision indispensable; essential
requisites)
Just as essential as compliance with said Art. V of the 1935 Constitution is that of Art. X
thereof, particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an
independent Commission on Elections . . ." The point to be stressed here is the term
"independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission,
would it have been dependent upon either Congress or the Judiciary? The answer must be
in the negative, because the functions of the Commission — "enforcement and
administration" of election laws — are neither legislative nor judicial in nature, and, hence,
beyond the eld 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 of ces 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
of ce of its members — nine (9) years, except those rst appointed 5 9 — the longest under
the Constitution, second only to that of the Auditor General 6 0 ; by providing that they may
not be removed from of ce except by impeachment, placing them, in this respect, on the
same plane as the President, the Vice-President, the Justices of the Supreme Court and
the Auditor General; that they may not be reappointed; that their salaries "shall be neither
increased nor diminished during their term of office"; that the decisions of the Commission
"shall be subject to review by the Supreme Court" only 6 1 ; that "(n)o pardon, parole, or
suspension of sentence for the violation of any election law may be granted without the
favorable recommendation of the Commission" 6 2 ; and that its chairman and members
"shall not, during their continuance in of ce, engage in the practice of any profession, or
intervene, directly or indirectly, in the management or control of any private enterprise
which in anyway may be affected by the functions of their of ce; nor shall they, directly or
indirectly, be nancially interested in any contract with the Government or any subdivision
or instrumentality thereof." 6 3 Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible to protect and insure the
independence of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he
Commission on Elections shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections," apart from such other
"functions which may be conferred upon it by law." It further provides that the Commission
"shall decide, save those involving the right to vote, all administrative questions, affecting
elections, including the determination of the number and location of polling places, and the
appointment of election inspectors and of other election of cials." And, to forestall
possible con icts or frictions between the Commission, on the one hand, and the other
of ces 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 satis ed with this, it declares, in effect, that "(t)he
decisions, orders, and rulings of the Commission" shall not be subject to review, except by
the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388,
otherwise known as Election Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto, some of which are
enumerated in sections 5 and 6 of said Act, quoted below. 6 4 Moreover, said Act contains,
inter alia, detailed provisions regulating contributions and other (corrupt) practices; the
establishment of election precincts; the designation and arrangement of polling places,
including voting booths, to protect the secrecy of the ballot; the formation of lists of
voters, the identi cation and registration of voters, the proceedings therefor, as well as for
the inclusion in, or exclusion or cancellation from said list and the publication thereof; the
establishment of municipal, provincial and national les of registered voters; the
composition and appointment of boards of election inspectors; the particulars of the
of cial ballots to be used and the precautions to be taken to insure the authenticity
thereof; the procedure for the casting of votes; the counting of votes by boards of
inspectors; the rules for the appreciation of ballots and the preparation and disposition of
election returns; the constitution and operation of municipal, provincial and national
boards of canvassers; the representation of political parties and/or their candidates in
each election precinct; the proclamation of the results, including, in the case of election of
public of cers, election contests; and the jurisdiction of courts of justice in cases of
violations of the provisions of said Election Code and penalties for such violations.
Few laws may be found with such a meticulous and elaborate set of provisions aimed at
"insuring free, orderly, and honest elections," as envisaged in section 2 of Art. X of the
Constitution. Yet, none of the foregoing constitutional and statutory provisions was
followed by the so-called Barangays or Citizens' Assemblies. And no reasons have been
given, or even sought to be given therefor. In many, if not most, instances, the elections
were held a viva voce, thus depriving the electorate of the right to vote secretly — one of
the most fundamental and critical features of our election laws from time immemorial —
particularly at a time when the same was of utmost importance, owing to the existence of
Martial Law.
In Glenn v. Gnau, 6 5 involving the casting of many votes, openly, without complying with the
requirements of the law pertinent thereto, it was held that the "election of cers" involved
"cannot be too strongly condemned" therefor and that if they 'could legally dispense with
such requirement xxx 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 — was contested in the plebiscite cases, as well as
in the 1972 habeas corpus case 6 6 — We need not, in the cases at bar, express any opinion)
was issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed
Constitution would be submitted to the people for rati cation or rejection; directing the
publication of said proposed Constitution; and declaring, inter alia, that "(t)he provisions of
the Election Code of 1971, insofar as they are not inconsistent" with said decree —
excepting those "regarding rights and obligations of political parties and candidates" —
"shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election Code of
1971 provides that "(a)ll elections of public of cers except barrio of cials and plebiscites
shall be conducted in the manner provided by this Code." General Order No. 20, dated
January 7, 1973, postponing, until further notice, "the plebiscite scheduled to be held on
January 15, 1973," said nothing about the procedure to be followed in the plebiscite to
take place at such notice, and no other order or decree has been brought to Our attention,
expressly or impliedly repealing the provisions of Presidential Decree No. 73, insofar as
said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of
Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion of the
proposed Constitution . . . temporarily suspending the effects of Proclamation No. 1081
for the purposes of free and open debate on the proposed Constitution . . ." This speci c
mention of the portions of the decrees or orders or instructions suspended by General
Order No. 20 necessarily implies that all other portions of said decrees, orders or
instructions — and, hence, the provisions of Presidential Decree No. 73 outlining the
procedure to be followed in the plebiscite for the rati cation or rejection of the proposed
Constitution — remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted
below 6 7 — 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 speci c
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 speci ed in paragraph 2 hereof, and submit the
results thereof to the Department of Local Governments and Community Development
immediately thereafter, . . ." As in Presidential Decree No. 86, this Decree No. 86-A does not
and cannot exclude the exercise of the constitutional supervisory power of the
Commission on elections or its participation in the proceedings in said Assemblies, if the
same had been intended to constitute the "election" or plebiscite required in Art. V of the
1935 Constitution. The provision of Presidential Decree No. 86-A directing the immediate
submission of the result thereof to the Department of Local Governments and Community
Development is not necessarily inconsistent with, and must be subordinate to the
constitutional power of the Commission on Elections to exercise its "exclusive" authority
over the "enforcement and administration of all laws relative to the conduct of elections," if
the proceedings in the Assemblies would partake of the nature of an "election" or
plebiscite for the ratification or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree
No. 86-B, dated January 7, 1973, ordering "that important national issues shall from time
to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum
shall include the matter of rati cation of the Constitution proposed by the 1971
Constitutional Convention" and that "(t)he Secretary of the Department of Local
Governments and Community Development shall insure the implementation of this order."
As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not
necessarily exclude the exercise of the powers vested by the 1935 Constitution in the
Commission on Elections, even if the Executive had the authority to repeal Art. X of our
Fundamental Law — which he does not possess. Copy of Presidential Decree No. 86-B is
appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the
intervention of the Commission on Elections, and without complying with the provisions of
the Election Code of 1971 or even of those of Presidential Decree No. 73. What is more,
they were held under the supervision of the very of cers and agencies of the Executive
Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said of cers and agencies of the Executive Department, who had been publicly urged
and ostensibly promised to work for the rati cation of the proposed revised Constitution
would be favored thereby, owing to the practically inde nite extension of their respective
terms of of ce 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 led by the of cers who conducted said plebiscites. This is another patent
violation of Art. X of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set forth in the 1935
Constitution, as amended, to insure the "free, orderly, and honest" expression of the
people's will, the aforementioned violation thereof renders null and void the contested
proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are
claimed to have rati ed the revised Constitution proposed by the 1971 Constitutional
Convention. ". . . (a)ll the authorities agree that the legal de nition of an election, as well as
that which is usually and ordinarily understood by the term, is a choosing or a selection by
those having a right to participate (in the selection) of those who shall ll the of ces, or of
the adoption or rejection of any public measures 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." 6 8
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
the Citizen's Assemblies allegedly held
throughout the Philippines?
Respondents maintain the af rmative, 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, rati ed,
approved or adopted by the "overwhelming" majority of the people; that Art. XV of the
1935 Constitution has thus been "substantially" complied with; and that the Court should
refrain from passing upon the validity of Proclamation No. 1102, not only because such
question is political in nature, but, also, because should the Court invalidate the
proclamation, the former would, in effect, veto the action of the people in whom
sovereignty resides and from whom its powers are derived.
The major aw 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 of cer under a constitutional government must act
according to law and subject to its restrictions, and every departure
therefrom or disregard thereof must subject him to the restraining and
controlling power of the people, acting through the agency of the judiciary;
for it must be remembered that the people act through courts, as well as
through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law
places upon all official action. . . ."
Accordingly, the issue boils down to whether or not the Executive acted within the limits of
his authority when he certi ed in Proclamation No. 1102 "that the Constitution proposed
by the nineteen hundred and seventy-one (1971) Constitutional Convention has been
rati ed 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 certi ed in said proclamation. Moreover, Art. X of the 1935 Constitution was
precisely inserted to place beyond the Executive the power to supervise or even exercise
any authority whatsoever over "all laws relative to the conduct of elections," and, hence,
whether the elections are for the choice or selection of public officers or for the ratification
or rejection of any proposed amendment, or revision of the Fundamental Law, since the
proceedings for the latter are, also, referred to in said Art. XV as "elections."
The Solicitor General stated, in his argument before this Court, that he had been informed
that there was in each municipality a municipal association of presidents of the citizens'
assemblies for each barrio of the municipality; that the president of each such municipal
association formed part of a provincial or city association of presidents of such municipal
associations; that the president of each one of these provincial or city associations in turn
formed part of a National Association or Federation of Presidents of such Provincial or
City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of said
National Association or Federation, reported to the President of the Philippines, in the
morning of January 17, 1973, the total result of the voting in the citizens' assemblies all
over the country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of the citizens'
assemblies in their respective municipalities to the corresponding Provincial Association,
which, in turn, transmitted the results of the voting in the province to the Department of
Local Governments and Community Development, which tabulated the results of the voting
in the citizens' assemblies throughout the Philippines and then turned them over to Mr.
Francisco Cruz, as President or acting President of the National Association or Federation,
whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabulated by
the Department of Local Governments and Community Development) to the Chief
Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council
since 1972, 80 that he could not possibly have been a member on January 17, 1973, of a
municipal association of presidents of barrio or ward citizens' assemblies, much less of a
Provincial, City or National Association or Federation of Presidents of any such provincial
or city associations.
Secondly, at the conclusion of the hearing of these cases on February 16, 1973, and in the
resolution of this Court of the same date, the Solicitor General was asked to submit,
together with his notes on his oral argument, a true copy of the aforementioned report of
Mr. Cruz to the President and of the "(p)roclamation, decree, instruction, order, regulation
or circular, if any, creating or directing or authorizing the creation, establishment or
organization" of said municipal, provincial and national associations, but neither a copy of
said alleged report to the President, nor a copy of any said "(p)roclamation, decree,
instruction, order, regulation or circular," has been submitted to this Court. In the absence
of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid
of any factual and legal foundation. Hence, the conclusion is set forth in the dispositive
portion of said Proclamation No. 1102, to the effect that the proposed new or revised
Constitution had been rati ed by the majority of the votes cast by the people, cannot
possibly have any legal effect or value.

The theory that said proclamation is "conclusive" upon the Court is clearly untenable. If it
were, acts of the Executive and those of Congress could not possibly be annulled or
invalidated by courts of justice. Yet, such is not the case. In fact, even a resolution of
Congress declaring that a given person has been elected President or Vice-President of
the Philippines as provided in the Constitution 6 9 is not conclusive upon the courts. It is no
more than prima facie evidence of what is attested to by said resolution. 7 0 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 of ce involved. 7 1 If prior to the creation of the
Presidential Electoral Tribunal, no such protest could be led, it was not because the
resolution of Congress declaring those had been elected President or Vice-President was
conclusive upon courts of justice, but because there was no law permitting the ling 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 7 2 is squarely in point. "As the Constitution stood from the
organization of the state" — of Minnesota — "all taxes were required to be raised under the
system known as the 'general property tax.' Dissatisfaction with the results of this method
and the development of more scienti c and satisfactory methods of raising venue induced
the Legislature to submit to the people an amendment to the Constitution which provided
merely that taxes shall be uniform upon the same class of subjects. This proposed
amendment was submitted at the general election held in November, 1906, and in due time
it was certified by the state canvassing board and proclaimed by the Governor as having
been legally adopted. Acting upon the assumption that the amendment had become a part
of the Constitution, the Legislature enacted statutes providing for a State Tax Commission
and a mortgage registry tax, and the latter statute, upon the same theory, was held
constitutional" by said Court. "The district court found that the amendment had not in fact
been adopted, and on this appeal" the Supreme Court was "required to determine the
correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers created by the
Legislature and of the proclamation made by the Governor based thereon, the Court held:
"It will be noted that this board does no more than tabulate the reports received from the
various county boards and add up and certify the results. State v. Mason, 45 Wash. 234, 88
Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election of cers, and
canvassing boards are not conclusive and that the nal decision must rest with the courts ,
unless the law declares that the decisions of the board shall be nal" — 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 nal 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, 7 3 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. 7 4
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 certi cation
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 certi ed to the President of the alleged result of the citizen's
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 rati ed in accordance with the provisions of the 1935
Constitution. In fact, it has not even been rati ed 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 rati cation of an amendment or
revision of the rst 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. 7 5
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that
Art. XV of the Constitution has not been complied with, and since the alleged substantial
compliance with the requirements thereof partakes of the nature of a defense set up by
the other respondents in these cases, the burden of proving such defense — which, if true,
should be within their peculiar knowledge — is clearly on such respondents. Accordingly, if
despite the extensive notes and documents submitted by the parties herein, the members
of the Court do not know or are not prepared to say whether or not the majority of the
people or of those who took part in the Citizens' Assemblies have assented to the
proposed Constitution, the logical step would be to give due course to these cases,
require the respondents to le 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 rati cation 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 rati cation or
rejection of the Proposed Constitution. No formal action to this effect was taken
until January 7, 1973, when General Order No. 20 was issued, directing 'that the
plebiscite scheduled to be held on January 15, 1973, he postponed until further
notice.' Said General Order No. 20, moreover, 'suspended in the meantime' the
'order of December 17, 1972, temporarily suspending the effects of Proclamation
No. 1081 for purposes of free and open debate on the proposed Constitution.'
"In view of these events relative to the postponement of the aforementioned

plebiscite, the Court deemed it t 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 of cially. 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 7 6 — 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 suf ciency of the time available to translate the
proposed Constitution into some local dialects and to comply with some pre-electoral
requirements, as well as to afford the people a reasonable opportunity to be posted on the
contents and implications of said transcendental document. On January 7, 1973, General
Order No. 20 was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings in the Citizens'
Assemblies scheduled to be held from January 10, to January 15, 1973, were "plebiscites,"
in effect, accelerated, according to the theory of the Solicitor General, for the rati cation of
the proposed Constitution? If said Assemblies were meant to be the plebiscites or
elections envisaged in Art. XV of the Constitution, what, then, was the "plebiscite"
postponed by General Order No. 20? Under these circumstances, it was only reasonable
for the people who attended such assemblies to believe that the same were not an
"election" or plebiscite for the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens'
Assemblies, namely:
"[1]Do you like the New Society?
"[2]Do you like the reforms under martial law?

"[3]Do you like Congress again to hold sessions?
"[4]Do you like the plebiscite to be held later?
"[5]Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; additional question italics.]
"[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 rati cation of a proposed Constitution or of a proposed amendment thereto. Secondly,
neither is the language of question No. 7 — "Do you approve of the new Constitution?" One
approves "of" the act of another, which does not need such approval for the effectivity of
said act, which the rst person, however, nds to be good, wise or satisfactory. The
approval of the majority of the votes cast in a plebiscite is, however, essential for an
amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the
Citizens' Assemblies constituted a plebiscite, question No. 8 would have been unnecessary
and improper, regardless of whether question No. 7 were answered af rmatively or
negatively. If the majority of the answers to question No. 7 were in the af rmative, the
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 af rmative. 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 af rmative. In either case, not more than one plebiscite could be held for the
rati cation or rejection of the proposed Constitution. In short, the insertion of said two (2)
questions — apart from the other questions adverted to above — indicates strongly that
the proceedings therein did not partake of the nature of a plebiscite or election for the
ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been
approved or adopted by the people in the citizens' assemblies all over the Philippines,
when it is, to my mind, a matter of judicial knowledge that there have been no such citizens'
assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to
the Chief Executive, the former reported:
". . . This report includes a resume (sic) of the activities we undertook in effecting
the referendum on the eleven questions you wanted our people consulted on and
the Summary of Results thereof for each municipality and for the whole province.
"xxx xxx xxx

". . . Our initial plans and preparations, however, dealt only on the original ve
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 Of ces and other
government of cials 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 ve questions among those to be discussed and asked in the Citizens'
Assembly meetings. With this latest order, we again had to make modi cations 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 Of ce of the Governor, the splendid cooperation and support
extended by almost all government of cials 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 of cials 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 ve questions among those to
b e discussed and asked in the Citizens' Assembly meetings. With this latest order, we
again had to make modi cations in our instructions to all those managing and supervising
the holding of the Citizens' Assembly meetings throughout the province . . . As to our
people, in general, their enthusiastic participation showed their preference and readiness
to accept the new method of government to people consultation in shaping up
government policies."
This communication manifestly shows: 1) that, as late as January 11, 1973, the Bataan
of cials had still to discuss — not put into operation — means and ways to carry out the
changing instructions from the top on how to organize the citizens' assemblies, what to do
therein and even what questions or topics to propound or touch in said assemblies; 2) that
the assemblies would involve no more than consultations or dialogues between people
and government — not decisions to be made by the people; and 3) that said consultations
were aimed only at "shaping up government policies" and, hence, could not, and did not,
partake of the nature of a plebiscite for the rati cation or rejection of a proposed
amendment of a new or revised Constitution for the latter does not entail the formulation
of a policy of the Government, but the making of a decision by the people on the new way
of life, as a nation, they wish to have, once the proposed Constitution shall have been
ratified.
If this was the situation in Bataan — one of the provinces nearest to Manila — as late as
January 11, 1973, one can easily imagine the predicament of the local of cials 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,
7 7 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, 7 8 that "a court is not at liberty to shut its eyes to an
obvious mistake, when the validity of the law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can be
answered or resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run, since
January 17, 1973, under the Constitution drafted by the 1971 Constitutional Convention;
that the political department of the Government has recognized said revised Constitution;
that our foreign relations are being conducted under such new or revised Constitution; that
the Legislative Department has recognized the same, and that the people, in general, have,
by their acts or omissions, indicated their conformity thereto.
As regards the so called political organs of the Government, I gather that respondents
refer mainly to the of ces under the Executive Department. In a sense, the latter performs
some functions which, from a constitutional viewpoint, are political in nature, such as in
recognizing a new state or government, in accepting diplomatic representatives
accredited to our Government, and even in devising administrative means and ways to
better carry into effect Acts of Congress which de ne 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. 7 9
Consequently, I am not prepared to concede that the acts of the of cers and of ces of the
Executive Department, in line with Proclamation No. 1102, connote a recognition thereof or
an acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce
thereto or not is something that cannot legally, much less necessarily or even normally, be
deduced from their acts in accordance therewith, because they are bound to obey and act
in conformity with the orders of the President, under whose "control" they are, pursuant to
the 1935 Constitution. They have absolutely no other choice, specially in view of
Proclamation No. 1081 placing the Philippines under Martial Law. Besides, by virtue of the
very decrees, orders and instructions issued by the President thereafter, he had assumed
all powers of Government — although some question his authority to do so — and,
consequently, there is hardly anything he has done since the issuance of Proclamation No.
1102, on January 17, 1973 — declaring that the Constitution proposed by the 1971
Constitutional Convention has been rati ed 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 of cer or of ce of the Government
complies with the commands of a superior of cer or of ce, 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 8 0 — 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 delity to it and proclaiming it, as directed
thereby";
2.The "Legislature in its formal of cial 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 rati cation 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 speci ed 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 ve (5) weeks before the scheduled plebiscite, whereas the validity of
Proclamation No. 1102 declaring on January 17, 1973, that the proposed Constitution had
been rati ed — despite General Order No. 20, issued on January 7, 1972, formally and
of cially suspending the plebiscite until further notice — was impugned as early as January
20, 1973, when L-36142 was led, or three (3) daysafter 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 ling written statements
opting to serve in the Ad Interim Assembly established in the Transitory Provisions of said
Constitution. Individual acts of recognition by members of our legislature, as well as of
other collegiate bodies under the government, are invalid as acts of said legislature or
bodies, unless its members have performed said acts in session duly assembled, or unless
the law provides otherwise, and there is no such law in the Philippines. This is a well-
established principle of Administrative Law and of the Law of Public Of cers, and no
plausible reason has been adduced to warrant departure therefrom. 8 1
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 of cial 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 rst the question of convening Congress ." The
Daily Express of that date, 8 2 likewise, headlined, on its front page, a "Senatorial Plot
Against 'Martial Law Government' Disclosed." Then, in its issue of December 29, 1972, the
same paper imputed to the Executive an appeal "to diverse groups involved in a conspiracy
to undermine" his powers "under martial law to desist from provoking a constitutional
crisis . . . which may result in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statements may have been, the idea
implied therein was too clear and ominous for any member of Congress who thought of
organizing, holding or taking part in a session of Congress, not to get the impression that
he could hardly do so without inviting or risking the application of Martial Law to him.
Under these conditions, I do not feel justi ed 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 rati cation,
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." 8 3 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 re ect 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 nd it dif cult 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 certi ed 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
certi ed by the aforementioned of cers of Congress, the so-called enrolled bill were
certi ed 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 of cers 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 of cial authority to perform in connection therewith, and, hence, his
certification is, legally, as good as non-existent.
Similarly, a certi cation, 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 certi cation, either to the President of the Philippines or to the President of the
Federation or National Association of presidents of Provincial Associations of presidents
of municipal associations of presidents of barrio or ward assemblies of citizens — would
not, legally and constitutionally, be worth the paper on which it is written. Why? Because
said Department Secretary is not the of cer designated by law to superintend plebiscites
or elections held for the rati cation or rejection of a proposed amendment or revision of
the Constitution and, hence, to tabulate the results thereof. Worse still, it is the of cer or
department which, according to Article X of the 1935 Constitution, should not and must
not be allowed to participate in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 8 4 the Highest Court of the
United States declared that courts "will not stand impotent before an obvious instance of a
manifestly unauthorized exercise of power." 8 5
I cannot honestly say, therefore, that the people have impliedly or expressly indicated their
conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words must be said about the procedure
followed in these ve (5) cases. In this connection, it should be noted that the Court has
not as yet decided whether or not to give due course to the petitions herein or to require
the respondents to answer thereto. Instead, it has required the respondents to comment
on the respective petitions — with three (3) members of the Court voting to dismiss them
outright — and then considered the comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding the same with
utmost dispatch, and the main defense set up by respondents herein, namely, the alleged
political nature of said issue, placing the same, according to respondents, beyond the
ambit of judicial inquiry and determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the questions involved, a reasoned
resolution was demanded by public interest. At the same time, respondents had cautioned
against a judicial inquiry into the merits of the issues posed on account of the magnitude
of the evil consequences, it was claimed, which would result from a decision thereon, if
adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which
were dismissed as moot and academic, owing to the issuance of Proclamation No. 1102
subsequently to the ling 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, led an
opinion passing upon the merits thereof. On the other hand, three (3) members of the
Court — Justices Barredo, Antonio and Esguerra — led 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." 8 6 When the petitions at bar were led, 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 ve (5) consecutive days — morning and afternoon, or a total of exactly 26
hours and 31 minutes — their respective counsel led extensive notes on their oral
arguments, as well as on such additional arguments as they wished to submit, and reply
notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of
documents in support of their respective contentions, or as required by the Court. The
arguments, oral and written, submitted have been so extensive and exhaustive, and the
documents led in support thereof so numerous and bulky, that, for all intents and
purposes, the situation is as if — disregarding forms — the petitions had been given due
course and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should express
their views on the aforementioned issues as if the same were being decided on the merits,
and they have done so in their individual opinions attached hereto. Hence, the resume of
the votes east and the tenor of the resolution, in the last pages hereof, despite the fact that
technically the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil
J. Puyat and Jose Roy, as President and President Pro Tempore respectively of the Senate,
it being settled in our jurisdiction, based upon the theory of separation of powers, that the
judiciary will not issue such writ to the head of a co-equal department, like the
aforementioned officers of the Senate.
In all other respects and with regard to the other respondents in said case, as well as in
eases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should
be given due course, there being more than prima facie showing that the proposed
Constitution has not been rati ed in accordance with Article XV of the 1935 Constitution,
either strictly, or substantially, or has been acquiesced in by the people or a majority
thereof; that said proposed Constitution is not in force and effect; and that the 1935
Constitution is still the Fundamental Law of the Land, without prejudice to the submission
of said proposed Constitution to the people at a plebiscite for its rati cation 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
dif cult, 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 ve 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, quali cations and modi cations 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 ve questions thus agreed upon as re ecting the basic issues herein involved are the
following:
1.Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and
therefore non-justiciable, question?
2.Has the Constitution proposed by the 1971 Constitutional Convention been rati ed
validly (with substantial, if not strict, compliance) conformably to the applicable
constitutional and statutory provisions?
3.Has the aforementioned proposed Constitution been acquiesced in (with or without valid
ratification) by the people?
4.Are petitioners entitled to relief? and
5.Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the members of
the Court in their respective opinions and/or concurrences, are as follows:
1.On the rst issue involving the political-question doctrine, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the
issue of the validity of Proclamation No. 1102 presents a justiciable and non-political
question. Justices Makalintal and Castro did not vote squarely on this question, but, only
inferentially, in their discussion of the second question. Justice Barredo quali ed his vote,
stating that "inasmuch as it is claimed that there has been approval by the people, the
Court may inquire into the question of whether or not there has actually been such an
approval, and, in the af rmative, the Court should keep its hands-off out of respect to the
people's will, but, in the negative, the Court may determine from both factual and legal
angles whether or not Article XV of the 1935 Constitution has been complied with."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that the
issue is political and "beyond the ambit of judicial inquiry."
2.On the second question of validity of the rati cation, 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 rati ed in
accordance with Article XV, section 1 of the 1935 Constitution, which provides only one
way for rati cation, i.e., "in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters." 8 7
Justice Barredo quali ed his vote, stating that "(A)s to whether or not the 1973
Constitution has been validly rati ed 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 rati cations, 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." 8 8
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 quali ed 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
rati cation, a new Constitution once accepted or acquiesced in by the people must be
accorded recognition by the Court, I am not at this stage prepared to state that such
doctrine calls for application in view of the shortness of time that has elapsed and the
dif culty of ascertaining what is the mind of the people in the absence of the freedom of
debate that is a concomitant feature of martial law."
Three (3) members of the Court express their lack of knowledge and/or competence to
rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in
their statement that "Under a regime of martial law, with the free expression of opinions
through the usual media vehicles restricted, (they) have no means of knowing, to the point
of judicial certainty, whether the people have accepted the Constitution." 8 9
4.On the fourth question of relief, six (6) members of the Court, namely, Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition.
Justices Makalintal and Castro so voted on the strength of their view that "(T)he effectivity
of the said Constitution, in the nal 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, 9 0 are relevant and unavoidable." 9 1
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself
voted to deny respondents' motion to dismiss and to give due course to the petitions.
5.On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third
question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution is
not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief
Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are
hereby dismissed. This being the vote of the majority, there is no further judicial obstacle
to the new Constitution being considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Concepcion, C.J., dissents.
Zaldivar, J., dissents in line with the personal opinion of the Chief Justice, and also dissents
in a separate opinion.
Fernando, J., dissents in conformity with the personal views of the Chief Justice, except as
to such portions thereof on which he expresses his own thoughts as set forth in his
dissenting opinion.
Teehankee, J., dissents in conformity with the Chief Justice's personal opinion and les a
separate dissent.
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 rati cation 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. 491; 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. 582; State v. Tu y, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895);
whether the description of the amendment and the form of the ballot are suf cient
(Rugsell v. Croy, 164 Mo. 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, 10 L.R.A.
[N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the
method of submission is suf cient (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 suf cient (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 as well by resolution as by
a legislative act approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A. 568; War eld v. Vandiver, 101 Md. 78, 60 Atl. 538; Edward v. 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, 68 N.W. 418, 34 L.R.A. 97); at what election the amendment must 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 nal, 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 rati ed by a vote of the
people. One prerequisite is equally as essential as the other. The amendment must rst
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 of cial, 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 changed only by the people in convention or in a mode described by
the Constitution itself, and that if the latter mode is adopted every requisite of the
Constitution must be observed. 'It has been said,' says the court,' that certain acts are to
be done, certain requisitions are to be observed, before a change can be effected; but to
what purpose are these acts required, or these requisitions enjoined, if the Legislature or
any other department of the government can dispense with them. To do so would be to
violate the instrument which they are sworn to support; and every principle of public law
and sound constitutional policy requires the court to pronounce against every amendment
which is shown not to have been made in accordance with the rules prescribed by the
fundamental law.'
"In State 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. 100, 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 any other mode than by a convention, every requisite which is
demanded by the instrument itself must be observed, and the omission of any one is fatal
to the amendment,' the court held that, 'as substance of right is grander and more potent
than methods of form,' there had been substantial compliance with the constitutional
requirement that a proposed amendment to the Constitution must be entered at length on
the legislative journal. It appears that the joint resolution making a submission simply
provided that a proposition should be submitted to the electors at the general election of
1880. It did not declare that the machinery of the general election law should control, or
that any particular of cers or board would receive, count, or canvass the votes cast. But
the existing election machinery was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in terms so ordered.
These methods had been followed in the adoption of previous amendments, and it was
held that, conceding the irregularity of the proceedings of the Legislature and the doubtful
scope of the provisions for the election, yet in view of the very uncertainty of such
provisions, the past legislative history of similar propositions, the universal prior
acquiescence in the same forms of procedure, and the popular and unchallenged
acceptance of the legal pendency before the people of the question of the amendment for
decision, and in view of the duty cast upon the court of taking judicial knowledge of
anything affecting the existence and validity of any law or portion of the Constitution, it
must be adjudged that the proposed amendment became part of the Constitution. The
effect was to hold that a provision of the Constitution requiring the proposed amendment
to be entered in full on the journals was directory, and not mandatory. This liberal view was
approved in State v. Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.) 149, and People v.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34. But it has not been universally
accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the
Kansas case said: 'The reasoning by which the learned court reached the conclusion it did
is not based on any sound legal principles, but contrary to them. Neither the argument nor
the conclusion can command our assent or approval. The argument is illogical, and based
on premises which are without any sound foundation, and rests merely on assumption.'
See, also, the well-considered case of Kadderly 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. ?6, the question whether a proposed amendment to the
Constitution had been legally adopted was treated as a judicial question. By the
Constitution a proposed amendment was required to be approved by two Legislatures
before its submission to the people. In this instance a bill was passed which contained 17
amendments. The next Legislature rejected 9 and adopted 8 of these amendments, and
submitted them to the people. The majority of the people voted for their adoption; but it
was contended that the Constitution contemplated and required that the same bill and the
same amendments, without change, should be approved by both Legislatures, and that it
did not follow that, because the second Legislature adopted separately 8 out of the 17
amendments adopted by the rst Legislature, it would have adopted the 17, or any of
them, if they had been voted upon by the second in the form adopted by the rst body. The
substance of the contention was that there had not been a concurrence of the two
Legislatures on the same amendments, according to the letter and spirit of the
Constitution. The court held that the power of the Legislature in submitting amendments
could not be distinguished from the powers of the convention, and that, as the people had
spoken and ratified the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a
proposed amendment to the Constitution could not be submitted to the people at any
other than a general election; but, as the amendment under consideration had been
submitted after the Constitution had been changed, it had been legally submitted and
adopted.
"In State 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,
a n d not political, in its nature. The amendment under consideration changed the
Constitution by providing for an elective, instead of an appointive, judiciary. It was
contended that the amendments had been improperly submitted, and not adopted by a
majority of the quali ed voters voting at the election, as required by the Constitution. The
law did not direct how the result of the election should be determined. The Legislature by
joint resolution recited that the election had been duly held throughout the state, and, as it
appeared from the returns made to the Secretary of State, that 21,169 votes were cast in
favor of, and 8,643 votes against, the amendment, it resolved 'that said amendment be,
and hereby is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the manner prescribed by the
Constitution, and it did not receive a majority of all the quali ed 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 nal judgment as well, con des
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 af rmative, 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
Whit eld, '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 dif cult 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, 46 L.R.A. 251, it was held that it was
the duty of the judicial department of the government to determine whether the legislative
department or its of cers had observed the constitutional injunctions in attempting to
amend the Constitution, and to annul their acts if they had not done so. The case is an
interesting and well-considered one. The Constitution provided the manner in which
proposed amendments should be submitted to the people, but did not provide a method
for canvassing the votes. The Legislature, having agreed to certain proposed amendments,
passed an act for submitting the same to the people. This statute provided for the
transmission to the Secretary of State of certi cates showing the result of the voting
throughout the state, and made it the duty of the Governor at the designated time to
summon four or more Senators, who, with the Governor, should constitute a board of state
canvassers to canvass and estimate the votes for and against each amendment. This
board was to determine and declare which of the proposed amendments had been
adopted and to deliver a statement of the results to the Secretary of State, and 'any
proposed amendment, which by said certi cate 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 ling such
certi cate 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 le 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 of cial functions placed the subject-
matter beyond the cognizance of the judicial department of the state. The Court of
Appeals, after a full review of the authorities, reversed this decision, and held that the
questions were of a judicial nature, and properly determinable by the court on their merits.
Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that there was
present in the Supreme Court, and is now pending in this court, every element tending to
maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the legislative
department and its agencies have observed constitutional injunctions in attempting to
amend the Constitution, and to annul their acts in case that they have not done so. That
such a proposition is not true seems to be indicated by the whole history of jurisprudence
in this country.' The court, after considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in question was legally
submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical
question which we have under consideration. In reference to the contention that the
Constitution intended to delegate to the Speaker of the House of Representatives the
power to determine whether an amendment had been adopted, and that the question was
political, and not judicial, the court observed: 'The argument has often been made in similar
cases to the courts, and it is found in many dissenting opinions; but, with probably a few
exceptions, it is not found in any prevailing opinion.'
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the
constitutional requirement of publication of a proposed constitutional provision for three
months prior to the election at which it is to be submitted to the people is mandatory and
that noncompliance therewith renders the adoption of an amendment of no effect."
ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31,
1972, the Barangays (Citizens Assemblies) have petitioned the Of ce of the President to
submit to them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the rati cation 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 elds, and that it is now
necessary to bring this down to the level of the people themselves through the Barangays
or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers in me vested by the Constitution, do hereby order that important national issues
shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial
referendum shall include the matter of rati cation of the Constitution proposed by the
1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community Development shall
insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred
and seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary
MAKALINTAL and CASTRO , JJ.:
The preliminary question before this Court was whether or not the petitioners
had made out a suf cient 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 led We considered
them as motions to dismiss so that they could be orally argued. As it turned out, the
hearing lasted ve 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 certi ed and
proclaimed by the President on January 17, 1973 (Proclamation No 1102) was not an act
of rati cation, let alone a valid one, of the proposed Constitution, because it was not in
accordance with the existing Constitution (of 1935) and the Election Code of 1971. Other
grounds are relied upon by the petitioners in support of their basic proposition, but to our
mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either
by Congress in joint session or by a Convention called by it for the purpose) "shall be valid
as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their rati cation." At the time that
Constitution was approved by the Constitutional Convention on February 8, 1935, and
rati ed in a plebiscite held on the following May 14, the word "election" had already a
de nite meaning in our law and jurisprudence. It was not a vague and amorphous concept,
but a procedure prescribed by statute for ascertaining the people's choices among
candidates for public of ces, or their will on important matters submitted to them,
pursuant to law, for approval. It was in this sense that the word was used by the framers in
Article XV (also in Articles VI and VII), and in accordance with such procedure that
plebiscites were held to ratify the very same Constitution in 1935 as well as the
subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution);
1940 (establishment of a bicameral legislature; eligibility of the President and the Vice
President for re election: creation of the Commission 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 of cers
except barrio of cials and plebiscites shall be conducted in the manner provided by this
Code." This is a statutory requirement designed, as were the other election laws previously
in force, to carry out the constitutional mandate relative to the exercise of the right of
suffrage, and with speci c 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 quali ed voters be registered in a
permanent list, the quali cations being those set forth in Article V, Section 1, of the 1935
Constitution on the basis of age (21), literacy and residence. These quali cations are
reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of
persons disquali ed 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 of cial 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 speci c reference to the rati cation 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 rati cation by a
majority of the votes cast in a plebiscite called for the purpose and, except as
herein provided, shall supersede the Constitution of nineteen hundred and thirty-
five and all amendments thereto."
The same procedure is prescribed in Article XVI, Section 2, for the rati cation 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 rati cation 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 rati cation 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 rati cation, 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 of cial 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 rati ed in only one way, that is, in an election
or plebiscite held in accordance with law and participated in only by quali ed and duly
registered voters. Indeed, so concerned was this Court with the importance and
indispensability of complying with the mandate of the (1935) Constitution in this respect
that in the recent case of Tolentino vs. Commission on Elections, No. L-34150, October 16,
1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention submitting a
proposed amendment for rati cation to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce the voting age from twenty-one
to eighteen years and was approved by the Convention for submission to a plebiscite
ahead of and separately from other amendments still being or to be considered by it, so as
to enable the youth to be thus enfranchised to participate in the plebiscite for the
rati cation 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 suf cient
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 rati cation of just one
amendment, as in Tolentino vs. COMELEC, but the rati cation 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 rati ed the draft Constitution were created by
Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen
participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues." The Assemblies "shall consist of all
persons who are residents of the barrio, district or ward for at least six months, fifteen
years of age or over, citizens of the Philippines and who are registered in the lists of Citizen
Assembly members kept by the barrio, district or ward secretary." By Presidential Decree
No. 86-A, dated January 5, 1973, the Assemblies were convened for a referendum between
January 10 and 15, to "consider vital national issues now confronting the country, like the
holding of the plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of elections in November
1973."
On January 5, 1973 the newspapers came out with a list of four questions to be submitted
to the Citizens Assemblies, the fourth one being as follows: "How soon would you like the
plebiscite on the new Constitution to be held?" It should be noted in this connection that
the President had previously announced that he had ordered the postponement of the
plebiscite which he had called for January 15, 1973 (Presidential Decree No. 73) for the
rati cation of the draft Constitution, and that he was considering two new dates for the
purpose — February 19 or March 5; that he had ordered that the registration of voters
(pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of
the new Constitution would be distributed in eight dialects to the people. (Bulletin Today ,
December 24, 1972.)
On January 10, 1973 it was reported that one more question would be added to the
original four which were to be submitted to the Citizens Assemblies. The question
concerning the plebiscite was reworded as follows: "Do yon like the plebiscite to be held
later?" The implication, it may likewise be noted, was that the Assemblies should express
their views as to when the plebiscite should be held, not as to whether or not it should be
held at all.
The next day, January 11, it was reported that six additional questions would be submitted,
namely:
"(1)Do you approve of the citizens assemblies as the base of popular government
to decide issues of national interest?
"(2)Do you approve of the new Constitution?

"(3)Do you want a plebiscite to be called to ratify the new Constitution?
"(4)Do you want the elections to be held in November, 1973 in accordance with
the provisions of the 1935 Constitution?
"(5)If the elections would not be held, when do you want the next elections to be
called?
"(6)Do you want martial law to continue?" [Bulletin Today , January 11, 1973:
italics supplied].
Appended to the six additional questions above quoted were the suggested answers, thus:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
QUESTION No. 3
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 program and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly."
So it was that on January 11, 1973, the second day of the purported referendum, the
suggestion was broached, for the rst time, that the plebiscite should be done away with
and a favorable vote by the Assemblies deemed equivalent to rati cation. This was done,
not in the questionnaire itself, but in the suggested answer to question No. 3. Strangely,
however, it was not similarly suggested that an unfavorable vote be considered as
rejection.
There should be no serious dispute as to the fact that the manner in which the voting was
conducted in the Citizens' Assemblies, assuming that such voting was held, was not within
the intendment of Article XV, Section 1, of the 1935 Constitution nor in accordance with
the Election Code of 1971. The referendum can by no means be considered as the
plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the
draft Constitution itself, or as the election intended by Congress when it passed Resolution
No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The
Citizens Assemblies were not limited to quali ed, let alone registered, voters, but included
all citizens from the age of fteen, and regardless of whether or not they were illiterates,
feeble-minded, or ex-convicts * — these being the classes of persons expressly
disquali ed from voting by Section 102 of the Election Code. In short, the constitutional
and statutory quali cations were not considered in the determination of who should
participate. No of cial 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 gures was prescribed or followed. The Commission on
Elections, which is the constitutional body charged with the enforcement and
administration of all laws relative to the conduct of elections, took no part at all, either by
way of supervision or in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming
majority of all the members of the Citizens Assemblies had voted for the adoption of the
proposed Constitution there was a substantial compliance with Article XV, Section 1, of
the 1935 Constitution and with the Election Code of 1971. The suggestion misses the
point entirely. It is of the essence of a valid exercise of the right of suffrage that not only
must a majority or plurality of the voters carry the day but that the same must be duly
ascertained in accordance with the procedure prescribed by law. In other words the very
existence of such majority or plurality depends upon the manner of its ascertainment, and
to conclude that it exists even if it has not been ascertained according to law is simply to
beg the issue, or to assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions of the Election Law
as long as it is certi ed 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 nding that the rati cation of the draft Constitution by the Citizens Assemblies,
as certi ed 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 nding, 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 of cial acts. No question
of wisdom or of policy is involved. But from this nding it does not necessarily follow that
this Court may justi ably 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 nal 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 rati cation 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 of cial position of the
Government, challenge the jurisdiction of this Court on the ground that the questions
raised in the petitions are political and therefore non-justiciable, and that in any case
popular acquiescence in the new Constitution and the prospect of unsettling acts done in
reliance thereon should caution against interposition of the power of judicial review.
Respondents Gil J. Puyat and Jose Roy (in L 36165) in their respective capacities as
President and President Pro Tempore of the Senate of the Philippines, and through their
counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a
ground not concurred in by the Solicitor General, namely, that "the approval of the 1973
Constitution by the people was made under a revolutionary government, in the course of a
successful political revolution, which was converted by act of the people to the present de
jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication
proceeded on the assumption, conceded by all, that the Constitution was in full force and
effect, with the power and authority of the entire Government behind it; and the task of this
Court was simply to determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The process employed
was one of interpretation and synthesis. In the cases at bar there is no such assumption:
the Constitution (1935) has been derogated and its continued existence as well as the
validity of the act of derogation is the issue. The legal problem posed by the situation is
aggravated by the fact that the political arms of the Government — the Executive
Departments and the two Houses of Congress — have accepted the new Constitution as
effective: the former by organizing themselves and discharging their functions under it, and
the latter by convening on January 22, 1973 or at any time thereafter, as ordained by the
1935 Constitution, and in the case of a majority of the members by expressing their option
to serve in the Interim National Assembly in accordance with Article XVII, 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 some length if only because it would constitute, if sustained,
the most convenient ground for the invocation of the political-question doctrine. In support
of his theory, Senator Tolentino contends that after President Marcos declared martial law
on September 21, 1972 (Proclamation No. 1081) he established a revolutionary
government when he issued General Order No. 1 the next day, wherein he proclaimed "that
I shall govern the nation and direct the operation of the entire government, including all its
agencies and instrumentalities, in my capacity, and shall exercise all the powers and
prerogatives appurtenant and incident to my position as such Commander-in-Chief of all
the Armed Forces of the Philippines." By this order, it is pointed out, the Commander-in-
Chief of the Armed Forces assumed all the powers of government — executive, legislative,
and judicial; and thereafter proceeded to exercise such powers by a series of Orders and
Decrees which amounted to legislative enactments not justi ed under martial law and, in
some instances, trenched upon the domain of the judiciary, by removing from its
jurisdiction certain classes of cases, such as "those involving the validity, legality, or
constitutionality of Proclamation No. 1081, or of any decree, order or act issued,
promulgated or performed by me or by my duly designated representative pursuant
thereto." (General Order No. 3 as amended by General Order No. 3-A, dated September 24,
1972.) The rati cation 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 rati ed the 1973 Constitution
and that such rati cation as well as the establishment of the government thereunder
formed part of a revolution, albeit peaceful, then the issue of whether or not that
Constitution has become effective and, as a necessary corollary, whether or not the
government legitimately functions under it instead of under the 1935 Constitution, is
political and therefore non- judicial in nature. Under such a postulate what the people did in
the Citizens Assemblies should be taken as an exercise of the ultimate sovereign power. If
they had risen up in arms and by force deposed the then existing government and set up a
new government in its place, there could not be the least doubt that their act would be
political and not subject to judicial review but only to the judgment of the same body
politic act, in the context just set forth, is based on realities. If a new government gains
authority and dominance through force, it can be effectively challenged only by a stronger
force; no judicial dictum can prevail against it. We do not see that the situation would be
any different, as far as the doctrine of judicial review is concerned, if no force had been
resorted to and the people, in de ance of the existing Constitution not peacefully because
of the absence of any appreciable opposition, ordained a new Constitution and succeeded
in having the government operate under it. Against such a reality there can be no adequate
judicial relief; and so courts forbear to take cognizance of the question but leave it to be
decided through political means.
The logic of the political-question doctrine is illustrated in a statement of the U.S. Supreme
Court in a case 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 af rms 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 rati cation of the Constitution was a
revolutionary act and that the government now functioning under it is the product of such
revolution. However, we are not prepared to agree that the premise is justified.
In the rst place, with speci c reference to the questioned rati cation, several signi cant
circumstances may be noted. (1) The Citizens Assemblies were created, according to
Presidential Decree No. 86, "to broaden the base of citizen participation in the democratic
process and to afford ample opportunities for the citizenry to express their views on
important national issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose consultation with the
people." (3) The question, as submitted to them on the particular point at issue here, was
"Do you approve of the Constitution?" (4) President Marcos, in proclaiming that the
Constitution had been rati ed, stated as follows: "(S)ince the referendum results show that
more than ninety- ve (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 rati ed 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 inde nite 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 rati cation" ( 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 rati cation 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 rati ed, 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 rati ed 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 rati cation. In this respect
subjective factors, which defy judicial analysis and adjudication, are necessarily involved.
In positing the problem within an identi able frame of reference we nd 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 de nite and
irrevocable, regardless of non-compliance with the pertinent constitutional and statutory
provisions prescribing the procedure for rati cation. 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 National, Jan.
7, 1913.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, President
said the following, among other things:
". . . We can, perhaps delimit the power of the people to speak on legal matters, on
justiciable matters, on matters that may come before the experts and interpreters
of the law. But we cannot disqualify the people from speaking on what we and
the people consider purely political matters especially those that affect the
fundamental law of the land.
". . . The political questions that were presented to the people are exactly those
that refer to the form of government which the people want . . . The implications
of disregarding the people's will are too awesome to be even considered. For if
any power in government should even dare to disregard the people's will there
would be valid ground for revolt."
". . . Let it be known to everybody that the people have spoken and they will no
longer tolerate any attempt to undermine the stability of their Republic; they will
rise up in arms not in revolt against the Republic but in protection of the Republic
which they have installed. It is quite clear when the people say, we ratify the
Constitution, that they mean they will not discard, the Constitution."
On January 19, 1973 the Daily Express published a statement of the President made the
day before, from which the following portion is quoted:
". . . the times are too grave and the stakes too high for us to permit the customary
concessions to traditional democratic process to hold back our people's clear and
unequivocal resolve and mandate to meet and overcome the extraordinary
challenges presented by these extraordinary times."
On the same occasion of the signing of Proclamation No. 1102 the President made
pointed reference to "the demand of some of our citizens . . . that when all other measures
should fail, that the President be directed to organize and establish a Revolutionary
Government," but in the next breath added: ". . . if we do ratify the Constitution how can we
speak of a Revolutionary Government? They cannot be compatible . . ." "(I)t is my feeling,"
he said, "that the Citizens' Assemblies which submitted this recommendation merely
sought to articulate their impatience with the status quo that has brought about anarchy,
confusion and misery to the masses . . ." The only alternatives which the President clearly
implied by the foregoing statements were the rati cation of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been rati ed. The third obvious alternative was
entirely ruled out, namely, a return to the 1935 Constitution, for it was the status quo under
that Constitution that had caused "anarchy, confusion and misery." The message seems
clear: rather than return to such status quo, he would need the recommendation of the
Citizens' Assemblies to establish a revolutionary government, because that would be the
only other way to carry out the reforms he had envisioned and initiated — reforms which, in
all fairness and honesty, must be given credit for the improved quality of life in its many
aspects, except only in the field of civil liberties.
If there is any signi cance, both explicit and implicit, and certainly unmistakable, in the
foregoing pronouncements, it is that the step taken in connection with the rati cation 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 signi cant if not so emphatic in terms, President
Marcos has professed fealty to the Constitution. In "Today's Revolution: Democracy" he
says:
"I believe, therefore, in the necessity of Revolution as an instrument of individual
and social change . . . but that in a democratic society, revolution is of necessity,
constitutional, peaceful, and legal."
In his TV address of September 23, 1972, President Marcos told the nation:
"I have proclaimed martial law in accordance with the powers vested in the
President by the Constitution of the Philippines.
"xxx xxx xxx
"I repeat, this is not a military takeover of civil government functions. The
Government of the Republic of the Philippines which was established by our
people in 1946 continues.
"xxx xxx xxx
"I assure you that I am utilizing this power vested in me by the Constitution to
save the Republic and reform our society . . .
"I have had to use this constitutional power in order that we may not completely
lose the civil rights and freedom which we cherish . . .
". . . We are against the wall. We must now defend the Republic with the stronger
powers of the Constitution."
(Vital Documents, pp. 1-12; italics supplied)
In the report of an interview granted by the President to the Newsweek Magazine

(published in the issue of January 29, 1973), the following appears:
"xxx xxx xxx
"Q.Now that you have gotten off the constitutional track, won't you be in
serious trouble if you run into critical problems with your programs?
"A.I have never gotten off the constitutional track. Everything I am doing is in
accordance with the 1930 Constitution. The only thing is that instead
of 18 year olds voting, we have allowed 15-year-olds the night to vote.
But the 15-year-olds of today are high school students, if not
graduates, and they are better informed than my contemporaries at
that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for
it in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through is
suf cient cause to proclaim martial law but at the very least there is a
danger of rebellion because so many of our soldiers have been killed.
You must remember this (martial law provision) was lifted from the
American legislation that was the fundamental law of our country.
"xxx xxx xxx"
In the light of this seeming ambivalence, the choice of what course of action to pursue
belongs to the President We have earlier made reference to subjective factors on which
this Court, to our mind, is in no position to pass judgment. Among them is the President's
own assessment of the will of the people as expressed through the Citizens Assemblies
and of the importance of the 1973 Constitution to the successful implementation of the
social and economic reforms he has started or envisioned. If he should decide that there is
no turning back, that what the people recommended through the Citizens Assemblies, as
they were reported to him, demanded that the action he took pursuant thereto be nal and
irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of rati cation 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 nd 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 nd 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.
Separate Opinions
BARREDO , J.:
As far as I am concerned, I regard the present petitions as no more than mere

reiterations of the Supplemental Petitions led by Counsel Lorenzo M. Tañada on
January 15, 1973 in the so called Plebiscite Cases decided by this Court on January 22,
1973. Of course, there are ampli cations of some of the grounds previously alleged,
and in the course of the unprecedented ve day hearing that was held from February 12
to 16 last, more extensive and illuminating arguments were heard by Us, but, in my
estimation, and with due recognition of the sincerity, brilliance and eloquence of
counsels, nothing more cogent and compelling than what had already been previously
presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason
why I should change the position I took in regard to the earlier cases. I reiterate,
therefore, the vote I cast when these petitions were initially considered by the Court,
namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the
signi cance to our people and in history of the individual stands of the members of the
Court in relation to said issues and to the nal outcome of these cases, and considering
that I reserved before the ling 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, r can see now, after further re ection, 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
rati ed without the necessity of holding a plebiscite in the form followed in the previous
rati cation 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 amendments and 1967, rejecting the proposed increase in the members of the
House of Representatives and eligibility of members of Congress to the Constitutional
Convention, may be deemed as a valid rati cation substantially in compliance with the
basic intent of Article XV of the 1935 Constitution. If indeed this explanation may be
considered as a modi cation 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 rmer now than ever before. As I shall elucidate anon, paramount considerations of
national import have led me to the conviction that the best interests of all concerned
would be best served by the Supreme Court holding that the 1973 Constitution is now in
force, not necessarily as a consequence of the revolutionary concept previously suggested
by me, but upon the ground that as a political, more than as a legal, act of the people, the
result of the referendum may be construed as a compliance with the substantiality of
Article XV of the 1935 Constitution.
I.
The facts that gave rise to these proceedings are historical and well known. Generally, they
may be taken judicial notice of. They revolve around the purported rati cation 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 dif culties, due
to bitter rivalries over important positions and committees and an incomprehensible fear
of overconcentrating powers in their of cers, the delegates went about their work in
comparatively slow pace, and by the third quarter of 1972 had nished deliberations and
second-reading voting only on an insigni cant 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 speci c amendments of particular portions of the Constitution of 1935. Needless to
say, before martial law was declared, there was full and unlimited coverage of the
workings in the convention by the mass media. At the same time, public debates and
discussions on various aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had approved Resolution No. 5843
proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite
for the rati cation of the proposed new Constitution on such appropriate date as he shall
determine and providing for the necessary funds there for." Acting under this authority, on
December 1, 1972, the President issued Presidential Decree No. 73 submitting the draft
constitution for rati cation by the people at a plebiscite set for January 15, 1973. This
order contained provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued
ordering and enjoining the authorities to allow and encourage public and free discussions
on the proposed constitution. Not only this, subsequently, under date of December 17,
1972, the President ordered the suspension of the effects of martial law and lifted the
suspension of the privilege of the writ of habeas corpus insofar as activities connected
with the rati cation of the draft constitution were concerned. These two orders were not,
however, to last very long. On January 7, 1973, the President, invoking information related
to him that the area of public debate and discussion he had opened by his previous orders
was being taken advantage of by subversive elements to defeat the purposes for which
they were issued and to foment public confusion, withdrew said orders and enjoined full
and stricter implementation of martial law.
In the meantime, the President had issued on December 31, 1972 Presidential Decree No.
86 creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to
express their views on important national issues" and one of the questions presented to
said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held
later" So, in the same order of January 7, 1973, General Order No. 20, the President
ordered, "that the plebiscite scheduled to be held on January 15, 1973, be postponed until
further notice."
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree No.
86-A providing as follows:
"PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES )
WHEREAS, on the basis of preliminary and initial reports from the
eld as gathered from barangays (citizens assemblies) that have so far
been established, the people would like to decide for themselves questions
or issues, both local and national, affecting their day to day lives and their
future;
WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the people on
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 speci ed questions such as the
rati cation of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in November
1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1.The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute the
base for citizen participation in governmental affairs and their collective
views shall be considered in the formulation of national policies or
programs and, wherever practicable, shall be translated into concrete and
specific decision;
2.Such barangays (citizens assemblies) shall consider vital national

issues now confronting the country, like the holding of the plebiscite on the
new Constitution, the continuation of martial rule, the convening of Congress
on January 22, 1973, and the holding of elections in November 1973, and
others in the future, which shall serve as guide or basis for action or decision
by the national government;
3.The barangays (citizens assemblies) shall conduct between
January 10 and 15, 1973, a referendum on important national issues,
including those speci ed in paragraph 2 hereof, and submit the results
thereof to the Department of Local Governments and Community
Development immediately thereafter, pursuant to the express will of the
people as re ected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
4.This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy three."
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading
thus:
"PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Of ce of the President to submit to them for resolution
WHEREAS, one of the questions persistently mentioned refers to the
rati cation 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 elds, 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
hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that the initial
referendum shall include the matter of rati cation of the Constitution
proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy three."
And so it was that by January 10, 1973, when the Citizens Assemblies thus created started
the referendum which was held from said date to January 15, 1973, the following
questions were submitted to them:
"(1)Do you like the New Society?
(2)Do you like the reforms under martial law?
"(3)Do you like Congress again to hold sessions?
"(4)Do you like the plebiscite to be held later?
"(5)Do you like the way President Marcos is running the affairs of the
government?."
but on January 11, 1973, six questions were added as follows:

"(1)Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
(2)Do you approve of the new Constitution ?
(3)Do you want a plebiscite to be called to ratify the new
Constitution?
"(4)Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
"(5)If the elections would not be held, when do you want the next
elections to be called?
"(6)Do you want martial law to continue?"
It is not seriously denied that together with the questions, the voters were furnished
"comments" on the said questions more or less suggestive of the answer desired. It may
be assumed that the said "comments" came from of cial sources, albeit speci cally
unidenti ed. As petitioners point out, the most relevant of these "comments" were the
following:
"COMMENTS ON
QUESTION No. 2
QUESTION No. 3
If the Citizens Assemblies approve of the new Constitution, then the

new Constitution should be deemed ratified "
The Solicitor General claims, and there seems to be no showing otherwise, that the results
of the referendum were determined in the following manner:
"Thereafter, the results of the voting were collated and sent to the
Department of Local Governments. The transmission of the results was
made by telegram, telephone, the provincial government SSB System in each
province connecting all towns; the SSB communication of the PACD
connecting most provinces; the Department of Public Information Network
System; the Weather Bureau Communication System connecting provincial
capitals and the National Civil Defense Network connecting all provincial
capitals. The certi cates of results were then own to Manila to con rm the
previous gures received by the aforementioned means of transmission.
The certi cates of results tallied with the previous gures 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 gures they received from the eld to the central committee to
tabulate the returns. The last gures 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, 1978. Said proclamation reads:
"PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE
FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to rati cation by the
Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 6, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six
months, fteen 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
WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following questions
were posed before Citizens' Assemblies or Barangays: Do you approve of the
New Constitution? Do you still want a plebiscite to be called to ratify the new
Constitution?
WHEREAS, fourteen million nine hundred seventy six thousand ve
hundred sixty one (14,976,561) members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as against
seven hundred forty-three thousand eight hundred sixty nine (743,869) who
voted for its rejection; while on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution,
fourteen million two hundred ninety eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for a plebiscite and that the
vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;
WHEREAS, since the referendum results show that more than ninety
ve (95) percent of the members of the Barangays (Citizens Assemblies) are
in favor of the New Constitution, the Katipunan ng Mga Barangay has
strongly recommended that the new Constitution should already be deemed
ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
hereby certify and proclaim that the Constitution proposed by the nineteen
hundred and seventy-one (1971) Constitutional Convention has been rati ed
by an overwhelmingly majority of all of the votes cast by the members of all
the Barangays (Citizens Assemblies) throughout the Philippines, and has
thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three."
The rst attempt to question the steps just enumerated taken by the President was in the
so called Plebiscite Cases, ten in number, which were led by different petitioners during
the rst 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. 86-A, quoted
above. And when Presidential Decree No. 86-B, also above quoted, was issued and the six
additional questions which were rst 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 satis ed with the fate of his urgent motion for early decision of the above ten
cases dated January 12, 1973, led 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 rati ed. 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 was set for
9:30 o'clock in the morning of that day. The details of what happened that morning form
part of the recital of facts in the decision rendered by this Court in the ten cases on
January 22, 1973 and need not be repeated here. Suf ce it to state now that before the
hearing could be closed and while Counsel Tañada was still insisting on his payer for
preliminary injunction or restraining order, the Secretary of Justice arrived and personally
handed to the Chief Justice a copy of Proclamation 1102 which had been issued at about
11:00 o'clock that same morning. In other words, the valiant and persistent efforts of
petitioners and their counsels were overtaken by adverse developments, and in the mind of
the majority of the members of the Court, the cases had become academic. For my part, I
took the view that even on the basis of the supplemental petition and the answer thereto
led by respondents, the Court could already decide on the fundamental issue of the
validity of Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed,
inasmuch as Counsel Tañada's pleading and argument had anticipated its issuance, but
the majority felt it was not ready to resolve the matter, for lack, according to them, of full
ventilation, and so, the decision reserved to petitioners the ling of the "appropriate" cases,
evidently, the present ones.
II.
At the threshold, I nd myself confronted by a matter which, although believed to be
inconsequential by my learned brethren, I strongly feel needs special attention. I refer to
the point raised by Counsel Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy,
who have been sued as President and President Pro Tempore of the Senate, to the effect
that the change in the composition of the Supreme Court provided for in the 1973
Constitution, from the 11-man tribunal under the 1935 Constitution to a 15-man Court,
makes of these cases which were led after January 17, 1973, the date when
Proclamation 1102 declared the new Constitution as ratified, political in nature and beyond
our jurisdiction. The main consideration submitted in this connection is that inasmuch as
the number of votes needed for a decision of this Court has been increased from six to
eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a
treaty, executive agreement 2 or law, the Court would have to resolve rst as a prejudicial
question whether the Court is acting in these cases as the 15-man or the 11-man Court, in
which event, it would be faced with the dilemma that if it acts either as the former or as the
latter, it would be prejudging the very matter in issue one way or the other, and, in effect, it
would be choosing between two constitutions, which is a political determination not within
the Court's competence.
While I agree that the problem is at rst blush rather involved, I do not share the view that
the premises laid down by counsel necessarily preclude this Court from taking a de nite
stand on whether the Court is acting in these cases as the 15-man or the 11-man Court. I
feel very strongly that the issue should not be ignored or dodged, if only to make the world
know that the Supreme Court of the Philippines is never incognizant of the capacity in
which it is acting, much less lacking in courage or wisdom to resolve an issue that relates
directly to its own composition. What a disgrace it would be to admit that this Supreme
Court does not know, to use a common apt expression, whether it is sh or fowl. Withal,
scholars and researchers who might go over our records in the future will inevitably
examine minutely how each of us voted and upon what considerations we have individually
acted, and, indeed, doubts may arise as to whether or not, despite the general result we
might announce, there had been the requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of
unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would
suf ce 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 rati cation
adopted in Presidential Decrees 86A and 86-B and related orders of the President as not
being in conformity with Article XV of the old Constitution, a cloud would exist as to the
ef cacy of the dispositive portion of Our decision dismissing these cases, even if we have
it understood that by the vote of six justices in favor of such dismissal, We intended to
mean that the implementation or enforcement of the new Constitution now being done
could continue
Be that as it may, I am against leaving such an important point open to speculation. By
nature I am averse to ambiguity and equivocation, and as a member of the Supreme Court,
the last thing I should knowingly countenance is uncertainty as to the juridical signi cance
of any decision of the Court which is precisely being looked upon as the haven in which
doubts are supposed to be authoritatively dispelled. Besides, from the very nature of
things, one thing is indubitably beyond dispute — we cannot act in both capacities of a 15-
man and an 11-man Court at the same time, in like manner that it is inconceivable that the
1935 and 1973 Constitution can be considered by Us as both in force. Our inescapable
duty is to make a choice between them, according to what law and other considerations
inherent to our function dictate. I cannot bear the thought that someone may someday say
that the Supreme Court of the Philippines once decided a case without knowing the basis
of its authority to act or that it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty
and propriety to straighten out this grave issue touching on the capacity in which the Court
is acting in these cases, I hold that we have no alternative but to adopt in the present
situation the orthodox rule that when the validity of an act or law is challenged as being
repugnant to a constitutional mandate, the same is allowed to have effect until the
Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on
the assumption that the new Constitution is in force and that We are acting in these
present cases as the 15-man Supreme Court provided for therein. Contrary to counsel's
contention, there is here no prejudgment for or against any of the two constitutions. The
truth of the matter is simply that in the normal and logical conduct of governmental
activities, it is neither practical nor wise to defer the course of any action until after the
courts have ascertained their legality, not only because if that were to be the rule, the
functioning of government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the rst 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 dif culty 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 of cials and employees in big
numbers are going on in obedience to them. For the ten justices of the Supreme Court to
constitute an island of resistance in the midst of these developments, which even
unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the
absurd and complicated consequences such a position entails in the internal workings
within the judiciary amount its different components, what with the lower courts
considering such orders and decrees as forming part of the law of the land in making their
orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at
bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, is committed to abide by the
decision of the Supreme Court, and if the Court feels that it cannot in the meantime
consider the enforcement of the new Constitution, he can wait for its decision. Accepting
the truth of this assertion, it does not necessarily follow that by this attitude of the
President, he considers the Supreme Court as still operating under the Old Constitution.
Quite on the contrary, it is a fact that he has given instructions for the payment of the
justices in accordance with the rate xed in the New Constitution. Not only that, his of cial
alter ego, the Secretary of Justice, has been shoving to this Court, since January 18, 1973,
all matters related to the administrative supervision of the lower courts which by the new
charter has been transferred from the Department of Justice to the Supreme Court, and as
far as I know, the President has not countermanded the Secretary's steps in that direction.
That, on the other hand, the President has not augmented the justices of the Court to
complete the prescribed number of fteen is, in my appraisal, of no consequence,
considering that with the presence of ten justices who are in the Court now, there is a
working quorum, and the addition of new justices cannot in anyway affect the voting on the
constitutional questions now before Us because, while there are suf cient justices to
declare by their unanimous vote the illegality of Proclamation 1102, the votes of the
justices to be added would only be committed to upholding the same, since they cannot by
any standard be expected to vote against the legality of the very Constitution under which
they would be appointed.
Moreover, what makes the premise of presumptive validity preferable and, even
imperative, is that We are dealing here with a whole constitution that radically modi es or
alters not only the form of our government from presidential to parliamentary but also
other constitutionally based institutions vitally affecting all levels of society. It is, to my
mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935
Constitution. with a few improvements. A cursory perusal of the former should convince
anyone that it is in essence a new one. While it does retain republicanism as the basic
governmental tenet, the institutional changes introduced thereby are rather radical and its
social orientation is decidedly more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but note that the change embraces
practically every part of the old charter, from its preamble down to its amending and
effectivity clauses, involving as they do the statement of general principles, the citizenship
and suffrage qualifications, the articles on the form of government, the judiciary provisions,
the spelling out of the duties and responsibilities not only of citizens but also of of cers of
the government and the provisions on the national economy as well as the patrimony of
the nation, not to mention the distinctive features of the general provisions. What is more,
the transitory provisions notably depart from traditional and orthodox views in that, in
general, the powers of government during the interim period are more or less
concentrated in the President, to the extent that the continuation or discontinuance of
what is now practically a one-man-rule, is even left to his discretion. Notably, the express
rati cation 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 de ance of traditional views and prevailing jurisprudence, to the effect that the
Executive's power of legislation during a regime of martial law is all inclusive and is not
limited to the matters demanded by military necessity. In other words, the new
constitution unlike any other constitution countenances the institution by the executive of
reforms which normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is
a new one, are that (1) Section 16 of its Article XVII which provides that this constitution
shall "supersede the Constitution of nineteen hundred and thirty- ve and all amendments
thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws,
offices and courts as well as the tenure of all incumbent officials, not adversely affected by
it, which would have been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent
members of the Judiciary (which include the Chief Justice and Associate Justices of the
Supreme Court) may continue in of ce (under the new constitution) until they reach the
age of seventy years, etc." By virtue of the presumptive validity of the new charter, all of Us
form part of the 15-man-Court provided for therein and, correspondingly, We have in legal
contemplation, ceased in the meanwhile to be members of the 11-man-Court in the 1935
Constitution. Should the Court nally decide that the new Constitution is invalid, then We
would automatically revert to our positions in the 11-man Court, otherwise, We would just
continue to be in our membership in the 15 man-Court, unless We feel We cannot in
conscience accept the legality of its existence. On the other hand, if it is assumed that We
are still the 11-man-Court and it happens that Our collective decision is in favor of the new
constitution, it would be problematical for any dissenting justice to consider himself as
included automatically in the 15-man-Court, since that would be tantamount to accepting a
position he does not honestly believe exists.
III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because
the rati cation of the 1973 Constitution it purports to declare as having taken place as a
result of the referendum above-referred to is ineffective. Since it cannot be said on the
basis of the said referendum that said Constitution has been "approved by a majority of
the votes cast at an election" in the manner prescribed by Article XV of the Constitution of
1935. More speci cally, they maintain that the word "election" in the said Article has
already acquired a de nite accepted meaning out of the consistent holding in the past of
rati cation plebiscites, and accordingly, no other form of rati cation can be considered
contemplated by the framers of the Old Constitution than that which had been followed in
1935, 1937, 1939, 1940, 1946 and 1967, the last three or four of which were held under
the supervision of the Commission on Elections. Furthermore, they emphatically deny the
veracity of the proclaimed results of the referendum because, according to them the
referendum was a farce and its results were manufactured or prefabricated, considering
that Mr. Francisco Cruz, who is supposed to have submitted the nal report to the
President, which served as basis for Proclamation 1102, had no of cial 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 certi cation through Proclamation 1102 itself that the New
Constitution has been approved by a majority of the people and having in mind facts of
general knowledge which I have taken judicial notice of, I am in no position to deny that the
result of the referendum was as the President had stated. I can believe that the gures
referred to in the proclamation may not be accurate, but I cannot say in conscience that all
of them are manufactured or prefabricated, simply because I saw with my own eyes that
people did actually gather and listen to discussions, if brief and inadequate for those who
are not abreast of current events and general occurrences, and that they did vote. I believe
I can safely say that what I have seen have also been seen by many others throughout the
country and unless it can be assumed, which honestly, I do not believe to be possible, that
in fact there were actually no meetings held and no voting done in more places than those
wherein there were such meetings and votings, I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the votes were in favor of the
New Constitution. If in fact there were substantially less than 14 million votes of approval,
the real gure, in my estimate, could still be signi cant enough and legally suf cient 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 rati cation. I can see that at the outset, when the rst
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 of cial gazettes of the administration,
the last set of six questions were included precisely because the reaction to the idea of
mere consultation was that the people wanted greater direct participation, thru the
Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus,
looking at things more understandingly and realistically, the two questions emphasized by
counsel, namely, (1) Do you approve of the New Constitution? and (2) Do you want a
plebiscite to be called to ratify the new Constitution? should be considered no longer as
loose consultations but as direct inquiries about the desire of the voters regarding the
matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of
the new Constitution, the logical consequence would have been the complete
abandonment of the idea of holding any plebiscite at all. On the other hand, it is very plain
to see that since the majority has already approved the new Constitution, a plebiscite
would be super uous. Clear as these rationalizations may be, it must have been thought
that if the holding of a plebiscite was to be abandoned, there should be a direct and
expressed desire of the people to such effect in order to forestall as much as possible any
serious controversy regarding the non-holding of the plebiscite required by the letter of
Section 16 of Article XVII, the effectivity clause, of the new Constitution. Oddly enough, the
"comments" accompanying the questions do strongly suggest this view. And as it turned
out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being
made of the point that as so framed, the thrust of the said question does not seek an
answer of fact but of opinion. It is argued that it would have been factual were it worded
categorically thus — Do you approve the New Constitution? The contention would have
been weighty were it not unrealistic. I remember distinctly that the observation regarding
the construction of the subject question was not originally made by any of the talented
counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the
English language can rightly be the cause of envy of even professors of English. None of
the other members of the Court, as far as I can recall, ever noticed how the said question is
phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention.
What I mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said question otherwise than calling for a factual
answer instead of a mere opinion, how could anyone expect the millions of unlettered
members of the Citizens Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it
emphasis. Besides, reading the question in the light of the accompanying "comment"
corresponding to it in particular, I am certain that any one who answered the same
understood it in no other sense than a direct inquiry as to whether or not, as a matter of
fact, he approves the New Constitution, and naturally, his af rmative answer must be taken
as a categorical vote of approval thereof, considering, particularly, that according to the
reported result of the referendum said answer was even coupled with the request that the
President defer the convening of the Interim National Assembly.

It is also contended that because of this reference in the answer to that question to the
deferment of the convening of the interim assembly, the said answer is at best a
conditional approval not proper nor acceptable for purposes of a rati cation plebiscite.
The contention has no basis. In the interest of accuracy, the additional answer proposed in
the pertinent "comment" reads as follows: "But we do not want the Ad Interim Assembly to
be convoked etc." On the assumption that the actual answer, as reported, was of similar
tenor, it is not fair to ascribe to it the imposition of a condition. At the most, the intention is
no more than a suggestion or a wish.
As regards said "comments", it must be considered that after martial law was declared, the
circumstances surrounding the making of the Constitution acquired a different and more
meaningful aspect, namely, the formation of a new society. From the point of view of the
President and on the basis of intelligence reports available to him, the only way to meet the
situation created by the subversive elements was to introduce immediately effective
reforms calculated to redeem the people from the depth of retrogression and stagnation
caused by rampant graft and corruption in high places, in uence peddling, oligarchic
political practices, private armies, anarchy, deteriorating conditions of peace and order, the
social inequalities widening the gap between the rich and the poor, and many other
deplorable long standing maladies crying for early relief and solution. De nitely, as in the
case of the rebellious movement that threatened the Quirino Administration, the remedy
was far from using bullets alone. If a constitution was to be approved as an effective
instrument towards the eradication of such grave problems, it had to be approved without
loss of time and sans the cumbersome processes that, from the realistic viewpoint, have
in the past obstructed rather than hastened the progress of the people. Stated otherwise,
in the context of actualities, the evident objective in having a new constitution is to
establish new directions in the pursuit of the national aspirations and the carrying out of
national policies. Only by bearing these considerations in mind can the "comments" already
referred to be properly appreciated. To others said "comments" may appear as evidence
of corruption of the will of those who attended the assemblies, but actually, they may also
be viewed in the same light as the sample ballots commonly resorted to in the elections of
officials, which no one can contend are per se means of coercion. Let us not forget that the
times are abnormal, and prolonged dialogue and exchange of ideas are not generally
possible, nor practical, considering the need for faster decisions and more resolute action.
After all voting on a whole new constitution is different from voting on one, two or three
speci c 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
speci c objectionable features, no matter how substantial, considering the ever present
possibility that after all it may be cured by subsequent amendment. Accordingly, there was
need to indicate to the people the paths open to them in their quest for the betterment of
their conditions, and as long as it is not shown that those who did not agree to the
suggestions in the "comments" were actually compelled to vote against their will, I am not
convinced that the existence of said "comments" should make any appreciable difference
in the court's appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts
somehow from the value that the referendum would otherwise have had. As I intimated,
however, in my former opinion, it is not fair to condemn and disregard the result of the
referendum barely because of martial law per se. For one thing, many of the objectionable
features of martial law have not actually materialized, if only because the implementation
of martial law since its inception has been generally characterized by restraint and
consideration, thanks to the expressed wishes of the President that the same be made
"Philippine style", which means without the rigor that has attended it in other lands and
other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects on the area of
information which should be open to a voter, in its real sense what "chills" his freedom of
choice and mars his exercise of discretion is the suspension of the privilege of the writ of
habeas corpus. The reason is simply that a man may freely and correctly vote even if the
needed information he possesses as to the candidates or issues being voted upon is more
or less incomplete, but when he is subject to arrest and detention without investigation
and without being informed of the cause thereof, that is something else which may actually
cause him to cast a captive vote. Thus it is the suspension of the writ of habeas corpus
accompanying martial law that can cause possible restraint on the freedom of choice in an
election held during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ of habeas
corpus has never produced any chilling effect upon the voters, since it is known by all that
only those who run afoul of the law, saving inconsequential instances, have any cause for
apprehension in regard to the conduct by them of the normal activities of life. And so it is
recorded that in the elections of 1951 and 1971, held while the privilege of writ of habeas
corpus was under suspension, the Filipino voters gave the then opposition parties
overwhelming if not sweeping victories, in de ance of the respective administrations that
ordered the suspensions.
At this juncture, I think it is t to make it clear that I am not trying to show that the result of
the referendum may be considered as suf cient basis for declaring that the New
Constitution has been rati ed in accordance with the amending clause of the 1935
Constitution. I reiterate that in point of law, I nd neither strict nor substantial compliance.
The foregoing discussion is only to counter, if I may, certain impressions regarding the
general conditions obtaining during and in relation to the referendum which could have in
one way or another affected the exercise of the freedom of choice and the use of
discretion by the members of the Citizens Assemblies, to the end that as far as the same
conditions may be relevant in my subsequent discussions of the acceptance by the people
of the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by
the people. And on this premise, my considered opinion is that the Court may no longer
decide these cases on the basis of purely legal considerations. Factors which are non-legal
but nevertheless ponderous and compelling cannot be ignored, for their relevancy is
inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of
whether or not there was proper submission under Presidential Decree No. 73 is
justiciable, and I still hold that the propriety of submission under any other law or in any
other form is constitutionally a t 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 rati cation itself, it is necessary for me to
point out that when it comes to rati cation, 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 nd out
with absolute precision the veracity of the total number of votes actually cast. After all, the
claims that upon a comparison of con icting reports, cases of excess votes may be found,
even if extrapolated will not, as far as I can gure out, suf ce to overcome the outcome
of cially 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 of cial reports submitted to him in due
course of the performance of duty of appropriate subordinate of cials, has elevated them
to the category of an act of a coordinate department of the government which under the
principle of separation of powers is clothed with presumptive correctness or at least
entitled to a high degree of acceptability, until overcome by better evidence, which in these
cases does not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the dif culty of an accurate checking of all the gures, 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 of cially declared. At this point, I
would venture to express the feeling that if it were not generally conceded that there has
been suf cient showing of the acceptance in question, by this time, there would have been
already demonstrative and signi cant indications of a rather widespread, if not organized
resistance in one form or another. Much as they are to be given due recognition as
magni cent manifestations of loyalty and devotion to principles, I cannot accord to the
filing of these cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning for the Court 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 re ects 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 or 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 rati cation of a new Constitution. It is
particularly stressed that the Article speci cally refers to nothing else but "amendments to
this Constitution" which if rati ed "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 rati ed, 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
con ned in its application only to proposed changes in any part of the same constitution
itself, for the very fact that a new constitution is being adopted implies a general intent to
put aside the whole of the old one, and what would be really incongrous is the idea that in
such an eventuality, the new Constitution would subject its going into effect to any
provision of the constitution it is to supersede, to use the language precisely of Section 6,
Article XVII, the effectivity clause, of the New Constitution. My understanding is that
generally, constitutions are self-born, they very rarely, if at all, come into being, by virtue of
any provision of another constitution. 3 This must be the reason why every constitution has
its own effectivity clause, so that if, the Constitutional Convention had only anticipated the
idea of the referendum and provided for such a method to be used in the rati cation of the
New Constitution, I would have had serious doubts as to whether Article XV could have
had priority of application.
2.When an entirely new constitution is proposed to supersede the existing one, we cannot
but take into consideration the forces and the circumstances dictating the replacement.
From the very nature of things, the proposal to ordain a new constitution must be viewed
as the most eloquent expression of a people's resolute determination to bring about a
massive change of the existing order, a meaningful transformation of the old society and a
responsive reformation of the contemporary institutions and principles. Accordingly,
should any question arise as to its effectivity and there is some reasonable indication that
the new charter has already received in one way or another the sanction of the people, I
would hold that the better rule is for the courts to defer to the people's judgment, so long
as they are convinced of the fact of their approval, regardless of the form by which it is
expressed, provided it be reasonably feasible and reliable. Otherwise stated, in such
instances, the courts should not bother about inquiring into compliance with technical
requisites, and as a matter of policy should consider the matter non-justiciable.
3.There is still another circumstance which I consider to be of great relevancy. I refer to the
ostensible reaction of the component elements, both collective and individual, of the
Congress of the Philippines. Neither the Senate nor the House of Representatives has been
reported to have even made any appreciable effort or attempt to convene as they were
supposed to do under the Constitution of 1935 on January 22, 1973 for the regular
session. It must be assumed that being composed of experienced, knowledgeable and
courageous members, it would not have been dif cult 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 of cially 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 of cers 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 of cially 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 at hold back the
political developments taking place and for the sake of being the guardian of the
Constitution and the defender of its integrity and supremacy make its judicial power
prevail against the decision of those who were duly chosen by the people to be their
authorized spokesmen and representatives. It is not alone the physical futility of such a
gesture that concerns me. More than that, there is the stark reality that the Senators and
the Congressmen, no less than the President, have taken the same oath of loyalty to the
Constitution that we, the Justices, have taken and they are, therefore, equally bound with
Us to preserve and protect the Constitution. If as the elected representatives of the
people, they have already opted to accept the New Constitution as the more effective
instrument for the ful llment of the national destiny, I really wonder if there is even any
idealistic worth in Our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis
the 1935 Constitution. Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being taken, with the least loss of time, towards their
accomplishment, I cannot but feel apprehensive that instead of serving the best interests
of our people, which to me is in reality the real meaning of our oath of of ce, the Court
might be standing in the way of the very thing our beloved country needs to retrieve its
past glory and greatness. In other words, it is my conviction that what these cases
demand most of all is not a decision demonstrative of our legal erudition and Solomonic
wisdom, but an all rounded judgment resulting from the consideration of all relevant
circumstances, principally the political, or, in brief, a decision more political than legal,
which a court can render only by deferring to the apparent judgment of the people and the
announcement thereof by the political departments of the government and declaring the
matter non-justiciable.
4.Viewed from the strictly legal angle and in the light of judicial methods of ascertainment,
I cannot agree with the Solicitor General that in the legal sense, there has been at least
substantial compliance with Article XV of the 1935 Constitution, but what I can see is that
in a political sense, the answers to the referendum questions were not given by the people
as legal conclusions. I take it that when they answered that by their signi ed 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 suf cient ground to hold that, judged by such intent
and, particularly, from the political standpoint, the rati cation 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 rati cation therein
contemplated is not in the word "election", which conceivably can be in many feasible and
manageable forms but in the word "approved" which may be said to constitute the
substantiality of the whole article, so long as such approval is reasonably ascertained. In
the last analysis, therefore, it can be rightly said, even if only in a broad sense, that the
ratification here in question was constitutionally justified and justifiable.
5.Finally, if any doubt should still linger as to the legitimacy of the New Constitution on
legal grounds, the same should be dispelled by viewing the situation in the manner
suggested by Counsel Tolentino and by the writer of this opinion in his separate opinion,
oft-referred to above, in the Plebiscite Cases — that is, as an extra constitutional exercise
by the people, under the leadership of President Marcos, of their inalienable right to
change their fundamental charter by any means they may deem appropriate, the moment
they are convinced that the existing one is no longer responsive to their fundamental,
political and social needs nor conducive to the timely attainment of their national destiny.
This is not only the teaching of the American Declaration of Independence but is indeed, a
truth that is self-evident. More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people have given their
sanction to a new charter, the latter may be deemed as constitutionally permissible even
from the point of view of the preceding constitution. Those who may feel restrained to
consider this view out of respect to the import of Tolentino vs. Comelec, supra., would be
well advised to bear in mind that that case was decided in the context of submission, not
of accomplished ratification.
V
The language of the disputed amending clause of the 1935 Constitution should not be
deemed as the be all and end all of 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 freedoms 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 quali ed curtailment of
individual liberties now being practiced, and this would amount, it is feared, to a
repudiation of our oath to support and defend the Constitution of 1935. This is certainly
something one must gravely ponder upon. When I consider, however, that the President,
the Vice President, the members of both Houses of Congress, not to speak of all executive
departments and bureaus under them, as well as all the lower courts, including the Court of
Appeals, have already accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to make more
realistic and feasible, rather than idealistic and cumbersomely deliberative, the attainment
of our national aspirations, I am led to wonder, whether or not we, as members of the
Supreme Court are being true to our duty to our people by refusing to follow suit and to
accept the realities of the moment, despite our being convinced of the sincerity and
laudableness of their objectives, only because we feel that by the people's own act of
ratifying the Constitution of 1935, they have so encased themselves within its provisions
and may, therefore, no longer take measures to redeem themselves from the situation
brought about by the de ciencies of the old order, unless they act in strict conformity
therewith. I cannot believe that any people can be so sti ed and enchained. In any event, I
consider it a God-given attribute of the people to disengage themselves, if necessary, from
any covenant that would obstruct their taking what subsequently appears to them to be
the better road to the promotion and protection of their welfare. And once they have made
their decision in that respect, whether sophisticatedly or crudely, whether in legal form or
otherwise, certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of
Counsels Tañada and Salonga that these cases be decided on the basis of conscience.
That is exactly what I am doing. But if counsel mean that only by granting their petitions
can this Court be worthily the bulwark of the people's faith in the government, I cannot
agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their
industry and wisdom, their patriotism and devotion to principle. Verily, they have brought
out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not
fear playing opposite roles, as long as we are all animated by sincere love of country and
aim exclusively at the attainment of the national destiny. Our heroes of the past, Rizal,
Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent
generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them, had
their differences of views — and they did not hesitate to take diametrically opposing sides
— that even reached tragic proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important
than loyalty to any particular precept or provision of the Constitution or to the Constitution
itself. My oath to abide by the Constitution binds me to whatever course of action I feel
sincerely is demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national unity. May God
grant that the controversies the events leading to these cases have entailed will heal after
the decision herein is promulgated, so that all of us Filipinos may forever join hands in the
pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss all these petitions for mandamus and
prohibition without costs.
MAKASIAR , J.:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a

procedure for the rati cation of constitutional amendments or of a new Constitution and
that such procedure was no complied with, the validity of Presidential Proclamation No.
1102 is a political, not a justiciable, issue; for it is inseparably or inextricably linked with
and strikes at, because it is decisive of, the validity of the rati cation and adoption of, as
well as acquiescence of the people in, the 1973 Constitution and the legitimacy of the
government organized and operating thereunder. And being political, it is beyond the ambit
of judicial inquiry, tested by the de nition of a political question enunciated in Tañada, et al.
vs. Cuenco, et al. (103 Phil. 1051), aside from the fact that this view will not do violence to
rights vested under the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals
organized and functioning or whose jurisdiction has been altered by the 1973 Constitution
and by 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 de ned by the new
Constitution, and decrees and orders issued in implementation of the same and
cooperating with the administration in the renovation of our social, economic and political
system as re-structured by the 1973 Constitution and by the implementing decrees and
orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf as the
court, de ned 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 rati cation." 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 nulli cation 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 rati cation or adoption — even if it deviates from or violates the procedure
delineated there for by the old Constitution — once the new Constitution is rati ed,
adopted and/or acquiesced in by the people or rati ed even by a body or agency not duly
authorized there for but is subsequently adopted or recognized by the people and by the
other of cial organs and functionaries of the government established under such a new
Constitution, this Court is precluded from inquiring into the validity of such rati cation,
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 rati cation, adoption
and/or acquiescence by the people cures any in rmity in its submission or any other
irregularities therein which are deemed mandatory before submission as they are
considered merely directory after such rati cation 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
essential is secured. But they are not themselves the essentials. " (Cited in Lark en vs.
Gronna, 285 N W 59, 61-64, 1939).

This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller
(307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority,
stated that:
". . . Thus the political departments of the government dealt with the effect
of both previous rejection and attempted withdrawal and determined that
both were ineffectual in the presence of an actual rati cation . . . 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 ef cacy of rati cations 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 rati cation by three-fourths of the States has taken place 'is conclusive
upon the courts.' In the exercise of that power Congress, of course, is
governed by the Constitution. However, whether submission, intervening
procedure or Congressional determination of rati cation 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 of cers, citizens and subjects of . . . government.' Proclamation
under authority of Congress that an amendment has been rati ed via carry
with it a solemn assurance by the Congress that rati cation has taken place
as the Constitution commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the Constitution, leaving to the
judiciary its traditional authority of interpretation. To the extent that the
Court's opinion in the present case even impliedly assumes a power to make
judicial interpretation of the exclusive constitutional authority of Congress
over submission and ratification of amendments, we are unable to agree . . ."
(American Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme
Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA
774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) —on which
petitioners place great reliance — that the courts may review the propriety of a submission
of a proposed constitutional amendment before the rati cation 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 rati cation, unlike the present
petitions, which challenge inevitably the validity of the 1973 Constitution after its
rati cation 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 nulli cation 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 republicans state, such as ours — to make, and
hence, to amend their own Fundamental Law. Congress may propose
amendments to the Constitution merely because the same explicitly grants
such power. Hence, when exercising the same, it is said that Senators and
Members of the House of Representatives act, not as members of Congress,
but as component elements of a constituent assembly. When acting as
such, the members of Congress derive their authority from the Constitution,
unlike the people, when performing the same function, for their authority
does not emanate from the Constitution — they are the source of all powers
of government including the Constitution itself." (21 SCRA 787)
WE did not categorically and entitle overturn the doctrine in Mabanag vs. Lopez Vito (78
Phil. 1) that both the proposal to amend and the rati cation 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 rati cation — satis ed the three fourths vote requirement of
the fundamental law. The force of this precedent has been weakened,
however, by Suanes us. Chief Accountant of the Senate, Avelino vs. Cuenco,
Tañada vs. Cuenco, and Macias vs. Commission on Elections. In the first, we
held that the Of cers and employees of the Senate Electoral Tribunal are
supervision and control, not of that of the Senate President, as claimed by
the latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third we nulli ed 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
rst party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of Congress
purporting to apportion the representative districts of the House of
Representatives, upon the ground that the apportionment had not been
made as may be possible according to the number of inhabitants of each
province. Thus we rejected the theory advanced in these four (4) cases, that
the issues therein raised were political questions the determination of which
is beyond judicial review." (21 SCRA pp. 785-786);
for which reason We concluded

In short, the issue whether or not a resolution of Congress — before acting as
a constituent assembly — violates the Constitution is essentially justiciable,
not political, and, hence, subject to judicial review, and to the extent that this
view may be consistent with the stand taken in Mabanag vs. Lopez Vito, the
latter should be deemed modified accordingly. " (p. 787, italics supplied.)
In the Tolentino case, supra, We reiterated the foregoing comments (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the rati cation 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 of cial 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
rati cation 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 Cornwall is 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 rati ed on March 1, 1781 (Encyclopedia
Brit., Vol. II, 1966 Ed., p. 525). About six years thereafter, the Congress of the
Confederation passed a resolution on February 21, 1787 calling for a Federal
Constitutional Convention " for the sole and express purpose of revising the articles of
confederation . . . " (Appendix I, The Federalist, Modern Library ed., p. 577, italics supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:
"The articles of this confederation shall be inviolably observed by every
state, and the union shall be perpetual; nor shall any alteration at any time
hereafter be made in any of them; unless such alteration be agreed to in a
congress of the united states, and be afterwards con rmed by the
legislatures of every statute." (See the Federalist, Appendix II, Modern Library
Ed., 1937, p.584; italics supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual
Union for the alteration and for the rati cation of the Federal Constitution as drafted by the
Philadelphia Convention were not followed. Fearful that the said Federal Constitution
would not be rati ed by the state legislatures as prescribed, the Philadelphia Convention
adopted a resolution requesting the Congress of the Confederation to pass a resolution
providing that the Federal Constitution should be submitted to elected state conventions
and if rati ed 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 rati cation then would have had
the some chance as the scriptural camel passing thru the eye of a needle. It
was therefore determined to recommend to Congress that the new
Constitution be submitted to conventions as in the several states specially
elected to pass upon it and that, furthermore, the new government should go
into effect if and when it should be rati ed by nine of the thirteen states . . . "
(The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle
Mead, pp. viii-ix; italics supplied).
Historian Samuel Eliot Morison similarly recounted:

"The Convention, anticipating that the in uence of many state
politicians would be Antifederalist, provided for rati cation 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 rati ed. The
convention method had the further advantage that judges, ministers, and
others ineligible to state legislatures, could be elected to a convention. The
nine-state provision was, of course, mildly revolutionary. But the Congress of
the Confederation, still sitting in New York to carry on federal government
until relieved, formally submitted the new constitution to the states and
politely faded out before the rst presidential inauguration." (The Oxford
History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was rati ed 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 in rmities, 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 rati cation of the
American Constitution, or against the legitimacy of the government organized and
functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which
enunciated the principle that the validity of a new or revised Constitution does not depend
on the method of its submission or rati cation by the people, but on the fact of at or
approval or all option or acquiescence by the people, which fact of rati cation 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 rati ed by all the State legislatures, in the manner pointed out by
the existing organic law. But the convention soon became convinced that
any amendments were powerless to effect a cure; that the disease was too
deeply seated to be reached by such tentative means. They saw that the
system they were called to improve must be totally abandoned, and that the
national idea must be re-established at the center of their political society. It
was objected by some members, that they had no power, no authority, to
construct a new government. They had no authority, if their decisions were
to be nal; and no authority whatever, under the articles of confederation, to
adopt the course they did. But they knew that their labors were only to be
suggestions; and that they as well as any private individuals, and any private
individuals as well as they, had a right to propose a plan of government to
the people for their adoption. They were, in fact, a mere assemblage of
private citizens, and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his of ce, 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 at of the people, and only the that of the people, can
breathe life into a constitution.
xxx xxx xxx
". . . We do not hesitate to say that a court is never justi ed in placing
by implication a limitation upon the sovereign. This would be an authorized
exercise of sovereign power by the court. In State v. Swift, 69 Ind. 505, 519,
the Indiana Supreme Court said: 'The people of a State may form an original
constitution, or abrogate an old one and form a new one, at any time,
without any political restriction except the constitution of the United States; .
. ." (37 SE 327-328, 329, italics supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:

"It remains to be said that if we felt at liberty to pass upon this
question, and were compelled to hold that the act of February 23, 1887, is
unconstitutional and void, it would not, in our opinion, by any means follow
that the amendment is not a part of our state Constitution. In the recent case
of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of
Virginia hold that their state Constitution of 1902, having been
acknowledged and accepted by the of cers administering the state
government, and by the people, and being in force without opposition, must
be regarded as an existing Constitution, irrespective of the question as to
whether or not the convention which promulgated it had authority so to do
without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198,
is a similar holding as to certain provisions of the Nebraska Constitution of
1886, which were added by the Legislature at the requirement of Congress,
though never submitted to the people for their approval." (97 NW 349-350;
italics supplied).
Against the decision in the Wheeler case, supra, con rming the validity of the rati cation
and adoption of the American Constitution, in spite of the fact that such rati cation was a
clear violation of the prescription on alteration and rati cation of the Articles of
Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most
signi cant historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27,
that it was a revolutionary constitution because it did not obey the requirement that the
Articles of Confederation and Perpetual Union can be amended only with the consent of all
thirteen (13) state legislatures. This opinion does not cite any decided case, but merely
refers to the footnotes on the brief historical account of the United States Constitution on
p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of
t h e Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison, who
discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The
Creative Period in Politics, 1785-1788," Professor Morison delineates the generals of the
Federal Constitution, but does not refer to it even implicitly as a revolutionary constitution
(pp. 297-316). However, the Federal Constitution may be considered revolutionary from
the view point of McIver if the term revolution is understood in "its wider sense to embrace
decisive changes in the character of government, even though they do not involve the
violent overthrow of an established order, . . ." (R.M. MacIver, The Web of Government,
1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution.
The Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to
1788, forged as it was during the war of independence was a revolutionary constitution of
the thirteen (13) states. In the existing Federal Constitution of the United States which was
adopted seven (7) or nine (9) years after the thirteen (13) states won their independence
and long after popular support for the government of the Confederation had stabilized was
not a product of a revolution. The Federal Constitution was a "creation of the brain and
purpose of man" in an era of peace. It can only be considered revolutionary in the sense
that it is a radical departure from its predecessor, the Articles of Confederation and
Perpetual Union.
It is equally absurd to af rm that the present Federal Constitution of the United States is
not the successor to the Articles of Confederation and Perpetual Union. The fallacy of the
statement is so obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the
validity and enforceability of the 1973 Constitution and of the government established and
operating thereunder. Petitioners pray for a declaration that the 1973 Constitution is
inoperative (L-36164). If Proclamation No. 1102 is nulli ed, then there is no valid
rati cation 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), af rmed in the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and
re-enunciated in 1912 in the case of Paci c States Telephone and Telegraph Company vs.
Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaf rmed the
pronouncements in both Borden and Beckham cases, it is suf cient for us to quote the
decision in Paci c 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 signi cance of the previous
doctrine, we do not content ourselves with a mere citation of the cases, but
state more at length than we otherwise would the issues and the doctrine
and the doctrine expounded in the leading and absolutely controlling case —
Luther 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, as proposed
by the plaintiff, and it should be decided that the charter government had no
legal existence during the period of time above mentioned, — if it had been
annulled by the adoption of the opposing government, — then the laws
passed by its legislature during that time were nullities; its taxes wrongfully
collected; its salaries and compensation to its of cers 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 of cers who carried
their decisions into operation answerable as trespassers, if not in some
cases as criminals.'
xxx xxx xxx
" 'The fourth section of the fourth article of the Constitution of the
United States shall guarantee to every state in the Union a republican form
of government, and shall protect each of them against invasion; and on the
application of the Legislature or of the Executive (when the legislature
cannot be convened) against domestic violence.
" 'Under this article of the Constitution it rests with Congress to decide
what government is the established one in a state. For, as the United 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 are appointed, as well as its
republican character, is recognized by the proper constitutional authority.
And its decision is binding on every other department of the government,
and could not be questioned in a judicial tribunal. It is true that the contest in
this case did not last long enough to bring the matter to this issue; and as no
senators or representatives were elected under the authority of the
government of which Mr. Dorr was the head, Congress was not called upon
to decide the controversy. Yet the right to decide is placed there, and not in
the courts.'
xxx xxx xxx
". . . We do not stop to cite other cases which indirectly or incidentally
refer to the subject, but conclude by directing attention to the statement by
the court, speaking through Mr. Chief Justice Fuller, in Taylor vs. Beckham,
178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after
disposing of a contention made concerning the 14th Amendment, and
coming to consider a proposition which was necessary to be decided
concerning the nature and effect of the guaranty of S 4 of article 4, it was
said (p. 578):
" 'But it is said that the 14th Amendment must be read with S 4 of
article 4, of the Constitution, providing that 'the United States shall guarantee
to every state in this Union a republican form of government, and shall
protect each of them against invasion; and on application of the legislature,
or the Executive (when the legislature cannot be convened), against
domestic violence.'
xxx xxx xxx
" 'It was long ago settled that the enforcement of this guaranty
belonged to the political department. Luther 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, de nitely determined to be political and
governmental, and embraced within the scope of the powers conferred upon
Congress, and not, therefore, within the reach of judicial power, it follows
that the case presented is not within our jurisdiction, and the writ of error
must therefore be, and it is, dismissed for want of jurisdiction. " (223 U.S. pp.
142-151; italics supplied).
Even a constitutional amendment that is only promulgated by the Constitutional

Convention without authority there for and without submitting the same to the people for
rati cation, becomes valid, when recognized, accepted and acted upon by the Chief of
State an a other government functionaries as well as by the people. In the 1903 case of
Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
"The sole ground urged in support of the contention that the
Constitution proclaimed in 1902 is invalid is that it was ordained and
promulgated by the convention without being submitted for rati cation or
rejection by the people of the commonwealth.
"The Constitution of 1902 was ordained and proclaimed by a
convention duly called by direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work of that convention
has been recognized, accepted, and acted upon as the only valid
Constitution of the state by the Governor in swearing delity to it and
proclaiming it, as directed thereby; by the Legislature in its formal of cial act
adopting a joint resolution, July 15, 1902, recognizing the Constitution
ordained by the convention which assembled in the city of Richmond on the
12th day of June, 1901, as the Constitution of Virginia; by the individual
oaths of its members to support it, and by its having been engaged for
nearly a year in legislating under it and putting its provisions into operation;
but the judiciary in taking the oath prescribed thereby to support it, and by
enforcing its provisions; and by the people in their primary capacity by
peacefully accepting it and acquiescing in it, by registering as voters under it
to the extent of thousands throughout the state, and by voting, under its
provisions, at a general election for their representatives in the Congress of
the United States." (p. 755).
The Court in the Taylor case above-mentioned further said:

"While constitutional procedure for adoption or proposal to amend the
constitution must be duly followed, without omitting any requisite steps,
courts should uphold amendment, unless satis ed that the constitution was
violated in submitting the proposal . . . Substance more than form must be
regarded in considering whether the complete constitutional system or
submitting the proposal to amend the constitution was observed."
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
"There may be technical error in the manner in which a proposed
amendment is adopted or in its advertisement, act, 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 rati cation 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
rati cation of an unauthorized act by the people (and the people are the principal in this
instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new Constitution
are registered in the book of voters; it is enough that they are electors voting on the new
Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, italics supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme
Court of Wisconsin ruled that "irregularity in the procedure for the submission of the
proposed constitutional amendment will not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama
Supreme Court pronounced that "the irregularity in failing to publish the proposed
constitutional amendment once in each of the 4 calendar weeks next preceding the
calendar week in which the election was held or once in each of the 7-day periods
immediately preceding the day of the election as required by the Constitution, did not
invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et
al. v. Ladner (131) SO 2nd 458, 462), where the admitted irregularities or illegalities
committed in the procedure for submission of the proposed constitutional amendment to
the people for rati cation consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a suf cient. number of ballot boxes
'secured by good and substantial locks,' as provided by Section 3249, Code of 1942, Rec.,
to be used in the holding of the special election on the constitutional amendment, and (b)
the alleged failure of the State Election Commissioners to comply with the requirements of
Code Sections 3204 and 3205 in the appointment of election commissioners in each of
the 82 counties. The irregularities complained of, even if proved, were not such
irregularities as would have invalidated the election. " (Italics supplied; see also Sylvester
vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates to the Constitutional Convention
and during the deliberations of the Constitutional Convention from June 1, 1971 until
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 oor of the convention
itself, in civic forums and in all the media of information. Many of the decrees promulgated
by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
reforms and had been ratified in Sec. 3(2) of Article XVII of the Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot
freely vote for these reforms and are not complying with the implementing decrees
promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951
and 1971 when the opposition won six out of eight senatorial seats despite the
suspension of the privileges of the writ of habeas corpus (see Lansang vs. Garcia, et al.,
Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom
as the proclamation of martial law. In both situations, there is no total blackout of human
rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as
of cials of the Legislative and Executive branches of the government elected and/or
appointed under the I935 Constitution have either recognized or are now functioning under
the 1973 Constitution, aside from the fact of its rati cation by the sovereign people
through the Citizens' Assemblies. Ninety- ve (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
fteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U.
Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the
certi cation of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3
to Consolidated Rejoinder of petitioners in L-36165). Only the ve (5) petitioners in L-
36165 close their eyes to a fait accompli. All the other functionaries recognize the new
government and are performing their duties and exercising their powers under the 1973
Constitution, including the lower courts. The civil courts, military tribunals and quasi-
judicial bodies created by presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. The foreign ambassadors who were
accredited to the Republic of the Philippines before martial law continue to serve as such
in our country; while two new ambassadors have been accepted by the Philippines after
the rati cation 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 Nation or from the foreign states has been manifested. On the contrary,
our permanent delegate to the United Nations Organization and our diplomatic
representatives abroad appointed before martial law continue to remain in their posts and
are performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the 1973
Constitution by requiring all election registrars to register 18-year olds and above whether
literates or not, who are quali ed electors under the 1973 Constitution (see pars. 1-A(c),
(d), & (e) of Annex A to Notes of respondents Puyat and Roy in L 36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the
government which is enforcing the same for over 10 weeks now. With the petitioners
herein, secessionists, rebels and subversives as the only possible exceptions, the rest of
the citizenry are complying with the decrees, orders and circulars issued by the incumbent
President implementing the 1973 Constitution
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522):
"If a set of men, not selected by the people according to the forms of
law, were to formulate an instrument and declare it the constitution, it would
undoubtedly be the duty of the courts to declare its work a nullity. This
would be revolution, and this the courts of the existing government must
resist until they are overturned by power, and a new government established.
The convention, however, was the offspring of law. The instrument which we
are asked to declare invalid as a constitution has been made and
promulgated according to the forms of law. It is a matter of current history
that both the executive and legislative branches of the government have
recognized its validity as a constitution, and are now daily doing so. Is the
question, therefore, one of a judicial characters It is our undoubted duty, if a
statute be unconstitutional, to so declare it; also, if a provision of the state
constitution be in con ict with the federal constitution, to hold the former
invalid. But this is a very different case. It may be said, however, that, for
every violation of or non-compliance with the law, there should be a remedy
in the courts. This is not, however, always the case. For instance, the power
of a court as to the acts of other departments of the government is not an
absolute one, but merely to determine whether they have kept within
constitutional limits, it is a duty, rather than a power. The judiciary cannot
compel a co-equal department to perform a duty. It is responsible to the
people; but if it does act, then, when the question is properly presented, it is
the duty of the court to say whether it has conformed to the organic law.
While the judiciary should protect the rights of the people with great care and
jealousy, because this is its duty, and also because, in times of great popular
excitement, it is usually their last resort, yet it should at the same time be
careful to overstep the proper bounds of its power, as being perhaps equally
dangerous; and especially where such momentous results might follow as
would be likely in this instance, if the power of the judiciary permitted, and
its duty required, the overthrow of the work of the convention.
"After the American Revolution the state of Rhode Island retained its
colonial character as its constitution, and no law existed providing for the
making of a new one. In 1841 public meetings were held, resulting in the
election of a convention to form a new one, — to be submitted to a popular
vote. The convention framed one, submitted it to a vote, and declared it
adopted. Elections were held for state of cers, who proceeded to organize a
new government. The charter government did not acquiesce in these
proceedings, and nally 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 dif culty 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 nd 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 rati ed 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 xed by the court could be lacking a promulgation by the convention;
and, if this be essential, then the question would arise, what constitution are
we now living under, and what is the organic law of the state? A suggestion
of these matters shows what endless confusion and harm to the state might
and likely would arise. If, through error of opinion, the convention exceeded
its powers, and the people are dissatis ed, they have ample remedy, without
the judiciary being asked to overstep the proper limits of its power. The
instrument provides for amendment and change. If a wrong has been done,
it can, and the proper way in which it should be remedied, is by the people
acting as a body politic. It is not a question of whether merely an
amendment to a constitution, made without calling a convention, has been
adopted, as required by that constitution. If it provides how it is to be done,
then, unless the manner be followed, the judiciary, as the interpreter of that
constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa,
54.3,14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 19 Nev. .391, 12
Pac. Rep. 835. But it is a case where a new constitution has been formed
and promulgated according to the forms of law. Great interests have already
arisen under it; important rights exist by virtue of it; persons have been
convicted of the highest crimes known to the law, according to its
provisions; the political power of the government has in many ways
recognized it; and, under such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the organic law of our
commonwealth.
"We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its powers,
yet, as the entire instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by the judiciary and
violative of the rights of the people, — who can and properly should remedy
the matter, if not to their liking, — if it were to declare the instrument of a
portion invalid, and bring confusion and anarchy upon state." (italics
supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the
adoption of the 1973 Constitution, it would be exercising a veto power on the act of the
sovereign people, of whom this Court is merely an agent, which to say the least, would be
anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the
approval of the new Constitution should be manifested or expressed. The sovereign
people have spoken and we must abide by their decision, regardless of our notion as to
what is the proper method of giving assent to the new Charter. In this respect, WE cannot
presume to know better than the incumbent Chief Executive, who, unlike the members of
this Court, only last January 8, 1973, We af rmed in Osmeña vs. Marcos (Pres. Election
Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969
for another term of four years until noon of December 30, 1973 under the 1935
Constitution. This Court, not having a similar mandate by direct at 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
speci c procedure for popular rati cation 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 rati cation which they themselves de ne 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 fty (50) different states of the American Union, which
states may be jealous of the powers of the Federal government presently granted by the
American Constitution. This dangerous possibility does not obtain in the case of our
Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
"Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445-446). It is
possible that, were he live today, in a milieu vastly different from 1868 to 1898, he might
have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in
Proclamation No. 1102 that the people through their Citizens' Assemblies had
overwhelmingly approved the new Constitution, due regard to a separate, coordinate and
co-equal branch of the government demands adherence to the presumption of
correctness of the President's declaration. Such presumption is accorded under the law
and jurisprudence to of cials in the lower levels of the Executive branch; there is no over-
riding reason to deny the same to the Chief of State as head of the Executive Branch. WE
cannot reverse the rule on presumptions, without being presumptuous, in the face of the
certi cations by the Of ce of the Secretary of the Department of Local Government and
Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation led by the Solicitor General on behalf of the respondents public of cers
dated March 7,1973). There is nothing in the record that contradicts, much less overthrow
the results of the referendum as certi ed. Much less are We justi ed in reversing the
burden of proof — by shifting it from the petitioners to the respondents. Under the rules on
pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence
their claim that the people did not ratify through the Citizens' Assemblies nor adopt by
acquiescence the 1973 Constitution. And petitioners have failed to do so.
No member of this Tribunal is justi ed in resolving the issues posed by the cases at bar on
the basis of reports relayed to him from private sources which could be biased and
hearsay, aside from the fact that such reports are not contained in the record.
Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh
solemn declaration which announces the highest act of the sovereign people — their
imprimatur to the basic Charter that shall govern their lives hereafter — may be for
decades, if not for generations.
Petitioners decry that even 15-year olds, ex-convicts and illiterates were allowed to vote in
the Citizens' Assemblies, despite their admission that the term "Filipino people" in the
preamble as well as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and
in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of
both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists,
convicts or ex-convicts. Without admitting that ex-convicts voted in the referendum, about
which no proof was even offered, these sectors of our citizenry, whom petitioners seem to
regard with contempt or derision and whom petitioners would deny their sovereign right to
pass upon the basic Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law abiding, and those who are 21 years of age or
above to express their conformity or non-conformity to the proposed Constitution,
because their stake under the new Charter is not any less than the stake of the more
fortunate among us. As a matter of fact, these citizens, whose juridical personality or
capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude
from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those
from 15 years up to below 21 years old, the ex-convicts and the ignorant, is more
democratic as it broadens the base of democracy and therefore more faithful to the
express af rmation in Section 1 of Article II of the Declaration of Principles that
"sovereignty resides in the people and all government authority emanates from them."
Moreover, ex-convicts granted absolute pardon are quali ed to vote. Not all ex-convicts
are banned from voting. Only those who had been sentenced to at least one year
imprisonment are disenfranchised but they recover their right of suffrage upon expiration
of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-
convicts and imbeciles constitute a very negligible number in any locality or barrio,
including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim
the results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the
accuracy or correctness of Proclamation No. 1102 that the 1973 Constitution was rati ed
by the overwhelming vote of close to 15 million citizens because there was no of cial
certi cation as to the results of the same from the Department of Local Governments. But
there was such certi cation as per Annexes 1 to 1-A to the Notes submitted by the
Solicitor General as counsel for respondents public of cers. This should suf ce to
dispose of this point. Even in the absence of such a certi cation, in much the same way
that in passing laws, Congress or the legislative body is presumed to be in possession of
the facts upon which such laws are predicated (Justice Fernando, The Power of Judicial
Review, 1967 Ed., pp. 112-113, citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and
O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed
that the President was in possession of the facts upon which Proclamation No. 1102 was
based. This presumption is further strengthened by the fact that the Department of Local
Governments, the Department of National Defense and the Philippine Constabulary as well
as the Bureau of Posts are all under the President, which of ces, as his alter ego, are
presumptively acting for and in behalf of the President and their acts are valid until
disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62, Villena vs.
Secretary of Interior, 67 Phil. 451). To deny the truth of 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 falsi cation, which is a most grievous
accusation. Under the rules of pleadings and evidence, the petitioners have the burden of
proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt
in criminal prosecutions, where the accused is always presumed to be innocent. Must this
constitutional right be reversed simply because the petitioners all assert the contrary? Is
the rule of law they pretend to invoke only valid as long as it favors them?
The presumption of regularity in the performance of of cial functions is accorded by the
law and jurisprudence to acts of public of cers whose category in the of cial 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 ve (5) senators who are petitioners in L-36165 belong to
the opposition party, justify a discrimination against the President in matters of this
nature? Unsupported as their word is by any credible and competent evidence under the
rules of evidence, must the word of the petitioners prevail over that of the Chief Executive,
because they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the incumbent
President realizes that he risks the wrath of his people being visited upon him and the
adverse or hostile verdict of history; because of the restrictions on the civil liberties of his
people, inevitable concomitants of martial law, which necessarily entail some degree of
sacri ce 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 ve (5) petitioners in L-36165 and four (4) of the seven
(7) petitioners in L-36164 were all participants in the political drama of this country since
1946. They are witness to the frustrations of well-meaning Presidents who wanted to
effect the reforms, especially for the bene t of the landless and the laboring class — how
politics and political bargaining had stymied the effectuation of such reforms thru
legislation. The eight (8) petitioners in L-36164 and L-36165 may not have participated in
the systematic blocking of the desired reforms in Congress or outside of it; but the
question may be asked as to what exactly they did to support such reforms. For the last
seven (7) decades since the turn of the century, for the last thirty- ve (35) years since the
establishment of the Commonwealth government in 1935 and for the last twenty seven
(27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial
reform had been effected, funded and seriously implemented, despite the violent uprisings
in the thirties, and from 1946 to 1952, and the violent demonstrations of recent memory.
Congress and the oligarchs acted like ostriches, "burying their heads in timeless sand."
Now the hopes for the long-awaited reforms to be effected within a year or two are
brighter. It would seem therefore to be the duty of everyone including herein petitioners to
give the present leadership the opportunity to institute and carry out the needed reforms
as provided for in the new or 1973 Constitution and thru the means prescribed in that
same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justi ed in placing by
implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and
encroached upon the province exclusively reserved to and by the sovereign people. This
Court did not pay heed to the principle that the courts are not the fountain spring of all
remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as
against the judgment of the people on the basic instrument which affects their very lives.
WE cannot determine what is good for the people or what ought to be their fundamental
law. WE can only exercise the power delegated to Us by the sovereign people, to apply or
interpret the Constitution and the laws for the bene t of the people, not against them nor
to prejudice them. WE cannot perform an act inimical to the interest of Our principal, who
at any time may directly exercise their sovereign power of ratifying a new Constitution in
the manner convenient to them
It is pertinent to ask whether the present Supreme Court can function under the 1935
Constitution without being a part of the government established pursuant thereto. Unlike in
the Borden case, supra, where there was at least another government claiming to be the
legitimate organ of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head; in the cases at bar
there is no other government distinct from and maintaining a position against the existing
government headed by the incumbent Chief Executive. (See Taylor vs. Commonwealth,
supra). There is not even a rebel government duly organized as such even only for
domestic purposes, let alone a rebel government engaged in international negotiations. As
heretofore stated, both the executive branch and the legislative branch established under
the 1935 Constitution had been supplanted by the government functioning under the 1973
Constitution as of January 17, 1973. The vice president elected under the 1935
Constitution does not asset any claim to the leadership of the Republic of the Philippines.
Can this Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of
Chief Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because
during the American civil war he apparently had the courage to nullify the proclamation of
President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte
Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief Justice Roger
Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-
779, 1969 ed., pp. 654-657), brie y 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 rst 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. Once can
therefore discern his hostility towards President Lincoln when he decided Ex parte
Merryman, which animosity to say the least does not be t a judicial mind. Such a man
could hardly be spoken of as a hero of the American Bar, least of all of the American
nation. The choice of heroes should not be expressed indiscriminately just to embellish
one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another historical error,
which may be due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-
509) to this effect. On the contrary, Encyclopedia Britannica (Vol. 17, Encyclopedia Brit.,
1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or
"Saviour 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 clari cation is offered in the interest of true scholarship and
historical accuracy, so that the historians, researchers and students may not be led astray
or be confused by esteemed counsel's eloquence and mastery of the spoken and written
word as well as by his eminence as law professor, author of law books, political leader, and
member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address
likewise his challenge to the ve (5) senators who are petitioners in L-36165 to also act as
"heroes and idealists," to defy the President by holding sessions by themselves alone in a
hotel or in their houses if they can muster a quorum or by causing the arrest of other
senators to secure a quorum and thereafter remove respondents Puyat and Roy (Avelino,
et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and
correctness of their position that the 1973 Constitution has not been validly rati ed,
adopted or acquiesced in by the people since January 18, 1973 until the present. The
proclaimed conviction of petitioners in L 36165 on this issue would have a ring of
credibility, if they proceeded rst 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 rst demonstrate his own courage. Surely, they will not af rm that the mere
ling of their petition in L-36165 already made them "heroes and idealists." The challenge
likewise seems to insinuate that the members of this Court who disagree with petitioners'
views are materialistic cowards or mercenary fence-sitters. The Court need not be
reminded of its solemn duty and how to perform it. WE refuse to believe that petitioners
and their learned as well as illustrious counsels, scholars and liberal thinkers that they are,
do not recognize the sincerity of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that "We can differ without being
dif cult; we can disagree without being disagreeable," which distinguished counsel in L
36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by
petitioners, which We do not nd now necessary to deal with in view of Our opinion on the
main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE
DISMISSED.
MAKASIAR , J.:
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 af rm 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 rati cation in accordance with the procedure
prescribed by the existing Constitution, is a justiciable question, accord all the
presumption of validity to the constitutional amendment or the revised or new Constitution
after the government of cials or the people have adopted or rati ed or acquiesced in the
new Constitution or amendment, although there was an illegal or irregular or no
submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934]; Hammond vs.
Clark, 71 SE 479, 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep.
34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs.
Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs.
State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs.
Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the
constitutional amendment or the new Constitution should not be condemned "unless in our
judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore vs.
Shanahan, 486 Pac. 2d 506, 207 Karl. 1, 645; and the 1956 case of Tipton vs. Smith, et al.,
supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption
of constitutionality must persist in the absence of factual foundation of record to
overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31,
1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF
CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as independent of,
the three grand departments of the Government, namely, the legislative, the executive and
the judicial. As a fourth separate and distinct branch, to emphasize its independence, the
Convention cannot be dictated to by either of the other three departments as to the
content as well as form of the Charter that it proposes. It enjoys the same immunity from
interference or supervision by any of the aforesaid branches of the Government in its
proceedings, including the printing of its own journals (Tañada and Fernando, Constitution
of the Philippines, 1952 ed., Vol. I, pp. 8-9; Malcolm and Laurel, Phil. Const. Law, p. 22;
Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose of maintaining
the same unimpaired and in order that its work will not be frustrated, the Convention has
the power to x 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 rati cation, 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, 1913, 1975 and 1977) which provides that
the new Constitution shall take effect immediately upon its rati cation (Sec. 16, Article
XVII, 1973 Constitution). The fact that Section 2 of the same Article XVII secures to the
members of Congress membership in the interim National Assembly as long as they opt
to serve therein within thirty (30) days after the rati cation 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, rati cation of which
means their elimination from the political scene. They will not provide the means for their
own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to

its independence and effectiveness, possesses the power to call a plebiscite and to
appropriate funds for the purpose, it inescapably must have the power to delegate the
same to the President, who, in the estimation of the Convention can better determine the
appropriate time for such a referendum as well as the amount necessary to effect the
same, for which reason the Convention thru Resolution No. 29 approved on November 22,
1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed
to the President "that a decree be issued calling a plebiscite for the rati cation of the
proposed new Constitution on such appropriate date as he shall determine and providing
for the necessary funds therefor, . . .," after stating in its "whereas" clauses that the 1971
Constitutional Convention is expected to complete its work by the end of November, 1972,
that the urgency of instituting reforms rendered imperative the early approval of the new
Constitution, and that the national and local leaders desire that there be continuity in the
immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to
promulgate subordinate rules and regulations to implement the law, this authority to
delegate implementing rules should not be denied to the Constitutional Convention, a co-
equal body.
Apart from the delegation to the Chief Executive of the power to call a plebiscite and to
appropriate funds therefor by the Constitutional Convention thru its Resolution No. 29, the
organization of the Citizens' Assemblies for consultation on national issues, is
comprehended within the ordinance-making power of the President under Section 63 of
the Revised Administrative Code, which expressly confers on the Chief Executive the power
to promulgate administrative acts and commands touching on the organization or mode
of operation of the government or re-arranging or re-adjusting any district, division or part
of the Philippines "or disposing of issues of general concern . . ." (Italics supplied). Hence,
as consultative bodies representing the localities including the barrios, their creation by
the President thru Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on the
1973 Constitution or on whether there was further need of a plebiscite thereon, — both
issues of national concern — is still within the delegated authority reposed in him by the
Constitutional Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does
not prescribe that the plebiscite must be conducted by the Commission on Elections in
accordance with the provisions of the 1971 Revised Election Code. If that were the
intention of the Constitutional Convention in making the delegation, it could have easily
included the necessary phrase for the purpose, some such phrase like "to call a plebiscite
to be supervised by the Commission on Elections in accordance with the provisions of the
1971 Revised Election Code (or with existing laws)." That the Constitutional Convention
omitted such phrase, can only mean that it left to the President the determination of the
manner by which the plebiscite should be conducted, who shall supervise the plebiscite,
and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly
states "that copies of this resolution as approved in plenary session be transmitted to the
President of the Philippines and the Commission on Elections for implementation," did not
in effect designate the Commission on Elections as supervisor of the plebiscite. The
copies of said resolution that were transmitted to the Commission on Elections at best
serve merely to notify the Commission on Elections about said resolution, but not to direct
said body to supervise the plebiscite. The calling as well as conduct of the plebiscite was
left to the discretion of the President, who, because he is in possession of all the facts
funnelled to him by his intelligence services, was in the superior position to decide when
the plebiscite shall be held, how it shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention
itself recognized the validity of, or validated Presidential Proclamation No. 1081 placing
the entire country under martial law by resolving to "propose to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite . . ." The use of the term "decree" is
signi cant for the basic orders regulating the conduct of all inhabitants are issued in that
form and nomenclature by the President as the Commander in Chief and enforcer of
martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on
December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds
therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule- making power to the Chief
Executive or to any of his subalterns, does not need suf cient standards to circumscribe
the exercise of the power delegated, and is beyond the competence of this Court to nullify.
But even if adequate criteria should be required, the same are contained in the "Whereas"
clauses of the Constitutional Convention Resolution No. 29, thus:
"WHEREAS, the 1971 Constitutional Convention is expected to
complete its work of drafting a proposed new Constitution for the Republic
by the end of November, 1972;
"WHEREAS, in view of the urgency of instituting reforms, the early
approval of the New Constitution has become imperative;
"WHEREAS, it is the desire of the national and local leaders that there
be continuity in the immediate political transition from the old to the New
Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer
concurred in the Plebiscite Cases, stated:
". . . Once its work of drafting has been completed, it could itself direct the
submission to the people for rati cation 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 nancially distraught. The President then, if performing his role as its
agent, could be held as not devoid of such competence." (pp. 2-3, concurring
opinion of J. Fernando in L-35925, etc., italics supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE 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
rati cation or adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th
Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American
Constitution, answering the critics of the Federal Constitution, stated that: "I never expect
to see a perfect work from imperfect man. The result of the deliberations of all collective
bodies must necessarily be a compound, as well of the errors and prejudices as of the
good sense and wisdom, of the individuals of whom they are composed. The compacts
which are to embrace thirteen distinct States in a common bond of amity and union, must
necessarily be a compromise of as many dissimilar interests and inclinations. How can
perfection spring from such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi).
(2)The 1973 Constitution is likewise impugned on the ground that it contains provisions
which are ultra vires or beyond the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government from
Presidential to Parliamentary and including such provisions as Section 3 of Article IV,
Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV —
"Sec. 3.The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall not be violated, and no search warrant or warrant of arrest shall
issue except upon probable case to be determined by the judge, or such other
responsible of cer as may be authorized by law , after examination under oath or
af rmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized."
Article XIV —
"Sec. 15.Any provision of paragraph one, Section fourteen, Article Eight and of
this Article notwithstanding, the Prime Minister may enter into international
treaties or agreements as the national welfare and interest may require." (Without
the consent of the National Assembly.)
Article XVII —
"Sec. 3(2)All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land,
and shall remain valid, legal, binding and effective even after lifting of martial law
or the rati cation of this Constitution, unless modi ed, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modi ed or repealed by
the regular National Assembly.
xxx xxx xxx
"Sec. 12.All treaties, executive agreements, and contracts entered into by the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations, are hereby recognized as legal,
valid and binding. When the national interest so requires, the incumbent President
of the Philippines or the interim Prime Minister may review all -contracts,
concessions, permits, or other forms of privileges for the exploration,
development, exploitation, or utilization of natural resources entered into, granted,
issued or acquired before the ratification of this Constitution."
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961,
L-35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by Justices
Fernando, Barredo, Antonio and the writer, overruled this objection, thus:
". . . Regardless of the wisdom and moral aspects of the contested
provisions of the proposed Constitution, it is my considered view that the
Convention was legally deem t 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 rati cation,' as provided in Section 1 of Article XV of the 1935
Constitution." (Pp. 11-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L- 32476, Oct. 20, 1970, 35
SCRA 367) that the Constitutional Convention has the authority to "entirely overhaul the
present Constitution and propose an entirely new Constitution based on an ideology
foreign to the democratic system . . .; because the same will be submitted to the people
for rati cation. Once rati ed 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 suf cient
answer that once convened, the area open for deliberation to a constitutional convention . .
., is practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
vs. Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479,
136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v.
Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202
[1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view
"that when the people elected the delegates to the Convention and when the delegates
themselves were campaigning, such limitation of the scope of their function and objective
was not in their minds"
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November
30,1972 without of cially promulgating the said Constitution in Filipino as required by
Sections 3(1) of Article XV on General Provisions of the 1973 Constitution. This claim is
without merit because their very Annex "M" is the Filipino version of the 1973 Constitution,
and, like the English version, contains the certi cation by President Diosdado Macapagal
of the Constitutional Convention, duly attested by its Secretary, that the proposed
Constitution was approved on second reading on the 27th day of November, 1972 and on
third reading in the Convention's 291st plenary session on November 29,1972 and
accordingly signed on November 30, 1972 by the delegates whose signatures are
thereunder af xed. It should be recalled that Constitutional Convention President
Diosdado Macapagal was, as President of the Republic from 1962 to 1965, then the titular
head of the Liberal Party to which four (4) of the petitioners in L 36165 including their
counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their
former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE FOR
RATIFICATION OF 1973 CONSTITUTION.
(1)Article XV of the 1935 Constitution simply provides that "such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid
as part of this Constitution when approved by a majority of the votes cast at an election
called by Congress at which the amendments are submitted for ratification by the qualified
electors de ned 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 rati cation, which Imposition by the Court is never justi ed (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
nulli es the proposed amendment or the new Constitution, the procedure prescribed by
the state Constitution is so detailed that it speci es 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 of cials only or of local of cials only, or of both state and local of cials; xes
the date of the election or plebiscite limits the submission to only electors or quali ed
electors; prescribes the publication of the proposed amendment or a new Constitution for
speci c period prior to the election or plebiscite, and designates the of cer to conduct the
plebiscite, to canvass and to certify the results, including the form of the ballot which
should so state the substance of the proposed amendments to enable the voter to vote on
each amendment separately; or authorizes expressly the Constitutional Convention or the
legislature to determine the procedure or certain details thereof. See the State
Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa
[1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland [1867];
Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and
Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
"Article XVIII.Mode of Amending the Constitution
"Sec. 284.Legislative Proposals. Amendments may be proposed to this
Constitution by the legislature in the manner following: The proposed
amendments shall be read in the house in which they originate on three several
days, and, if upon the third reading three- fths of all the members elected to that
house shall vote in favor thereof, the proposed amendments shall be sent to the
other house, in which they shall likewise be read on three several days, and if
upon the third reading three- fths of all the members elected to that house shall
vote in favor of the proposed amendments, the legislature shall order an election
by the quali ed 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 nal 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 quali ed electors of the state upon the proposed amendments. If
such election be held on the day of the general election, the of cers of such
general election shall open a poll for the vote of the quali ed electors upon the
proposed amendments; If it be held on a day other than that of a general election,
of cers 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 quali ed 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 af rmative vote of a majority of all the quali ed
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 he 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 fths 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 quali ed voters of the State for
adoption or rejection. The votes cast for and against said proposed amendment
or amendments, severally, shall be returned to the Governor, in the manner
prescribed in other cases, and if it shall appear to the Governor that a majority of
the votes cast at said election on said amendment or amendments, severally,
were cast in favor thereof, the Governor shall, by his proclamation, declare the
said amendment or amendments having received said majority of votes, to have
been adopted by the people of Maryland as part of the Constitution thereof, and
thenceforth said amendment or amendments shall be part of the said
Constitution. When two or more amendments shall be submitted in 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 of cial 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 fteen 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 speci c procedure, much less a
detailed procedure for submission or rati cation. 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 rati cation to the quali ed electors as de ned in Article V of the 1935 Constitution.
Much less does it require the publication of the proposed Constitution for any speci c
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 rati cation. 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 rati ed on May 14, 1935 by the people did not contain Article X on the
Commission on Elections, which article was included therein pursuant to an amendment by
the National Assembly proposed only about ve (5) years later — on April 11, 1940, rati ed
by the people on June 18, 1940 and approved by the President of the United States on
December 2, 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil.
Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935
Constitution as rati ed on May 14, 1935 intended that a body known as the Commission
on Elections should be the one to supervise the plebiscite, because the Commission on
Elections was not in existence then as it was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on
June 21, 1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp.
475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300;
Tañada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Elections was not yet in existence, the
former Department of Interior (now Department of Local Governments and Community
Development) supervised the plebiscites on the 1937 amendment on woman's suffrage,
the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-
Kocialkowski Act of the U.S. Congress) and the three 1940 amendments on the
establishment of a bicameral Congress, the re-election of the President and the Vice-
President, and the creation of the Commission on Elections (rati ed on June 18, 1940).
The supervision of said plebiscites by the then Department of Interior was not axiomatic,
but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should also
supervise the plebiscite for rati cation 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 quali ed 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 rati cation to the quali ed
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
quali ed electors under Article V of the 1935 Constitution; because the said term "people"
as used in several provisions of the 1935 Constitution, does not have a uniform meaning.
Thus in the preamble, the term "Filipino people" refers to all Filipino citizens of all ages of
both sexes. In Section 1 of Article II on the Declaration of Principles, the term "people" in
whom sovereignty resides and from whom all government authority emanates, can only
refer also to Filipino citizens of ail ages and of both sexes. But in Section 5 of the same
Article II on social justice, the term "people" comprehends not only Filipino citizens but also
all aliens residing in the country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III on the Bill of Rights
concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the
electorate, it does so expressly as in the case of the election of senators and
congressmen. Section 2, Article VI expressly provides that the senators "shall be chosen at
large by the quali ed electors of the Philippines as may be provided by law." Section 5 of
the same Article VI speci cally provides that congressmen shall "be elected by the
quali ed electors." The only provision that seems to sustain the theory of petitioners that
the term "people" in Article XV should refer to the quali ed electors as de ned in Article V
of the 1935 Constitution is the provision that the President and Vice-President shall be
elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this
alone cannot be conclusive as to such construction; because of the explicit provisions of
Sections 2 and 5 of Article VI, which speci cally prescribes that the senators and
congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States,
specifically delineate in detail the procedure of ratification of amendments to or revision of
state Constitutions and expressly require rati cation by quali ed electors, not by the
generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-
35 Constitutional Convention, speci ed that the amendment shall be submitted to
quali ed electors for rati cation. This proposal was not accepted, indicating that the
1934-35 Constitutional Convention did not intend to limit the term "people" in Article XV of
the 1935 Constitution to quali ed electors only. As above demonstrated, the 1934-35
Constitutional Convention limits the use of the term "quali ed electors" to elections of
public of cials. It did not want to tie the hands of succeeding or 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 the 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 speci c 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
Of cial Gazette in English and Spanish for three consecutive issues at least fteen (15)
days prior to said election, . . . and shall be posted in a conspicuous place in its municipal
and provincial of ce 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 con ict with it, should apply to the
said plebiscite (Sec. 3, Com. Act No. 34); and that the votes cast according to the returns
of the board of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act
No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of the Revised
Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938,
makes it expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act
Nos. 492 and 517 and Rep. Act No. ?3 calling for the plebiscite on the constitutional
amendments in 1939, 1940 and 1946, including the amendment creating the Commission
on Elections, speci cally 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 the
following election of local of cials," (Sec. 1, Com. Act No. 492); that the said amendments
shall be published in English and Spanish in three consecutive issues of the Of cial
Gazette at least ten (10) days prior to the election; that copies thereof shall be posted not
later than October 20, 1939 (Sec. 2, Com. Act No. 492); that the election shall be
conducted according to the provisions of the Election Code insofar as the same may be
applicable; that within thirty (30) days after the election, the Speaker of the National
Assembly shall request the President to call a special session of the Assembly for the
purpose of canvassing the returns and certify the results thereof (Sec. 6, Com. Act No.
492).
Commonwealth Act No. 617, consisting of 11 sections, was approved on April 25,1940
and provided, among others: that the plebiscite on the constitutional amendments
providing for a bicameral Congress, re- election of the President and Vice-President, and
the creation of a Commission on Elections shall be held at a general election on June 18,
1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the
Of cial Gazette in English and Spanish at least 20 days prior to the election and posted in
every local government of ce building and polling place not later than May 18, 1940 (Sec.
2); that the election shall be conducted in conformity with the Election Code insofar as the
same may be applicable (Sec. 3); that copies of the returns shall be forwarded to the
Secretary of National Assembly and the Secretary of Interior (Sec. 7); and that the National
Assembly shall canvass the returns and certify the results at a special session to be called
by the President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity
amendment consists of 8 sections and 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 Of cial 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, & days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall
apply to plebiscites (Sec. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935
Constitution, there would be no need for Congress to expressly provide therefor in the
election laws enacted after the inauguration of the Commonwealth government under the
1935 Constitution.
(5)Article XV of the 1935 Constitution does not specify who can vote and how they shall
vote. Unlike the various State Constitutions of the American Union (with few exceptions),
Article XV does not state that only quali ed electors can vote in the plebiscite. As above-
intimated, most of the Constitutions of the various states of the United States provide for
very detailed amending process and specify that only quali ed electors can vote at such
plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter,
which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded
the membership of the barrio assembly to include citizens who are at least 18 years of
age, whether literate or not, provided they are also residents of the barrio for at least 6
months (Sec. 4, R.A. No. 3590).
"Sec. 4.The barrio assembly. — The barrio assembly shall consist of all persons
who are residents of the barrio for at least six months, eighteen years of age or
over, citizens of the Republic of the Philippines and who are duly registered in the
list of barrio assembly members kept by the Barrio Secretary.
"The barrio assembly shall meet at least once a year to hear the annual report of
the barrio counsel concerning the activities and finances of the barrio.
"It shall meet also at the case of the barrio council or upon written petition of at
least One-Tenth of the members of the barrio assembly.
"No meeting of the barrio assembly shall take place unless notice is given one
week prior to the meeting except in matters involving public safety or security in
which case notice within a reasonable time shall be suf cient. 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 of cer at all meetings
of the barrio assembly. The barrio secretary or in his absence, any member
designated by the presiding of cer to act as secretary shall discharge the duties
of secretary of the barrio assembly.
"For the purpose of conducting business and taking any of cial action in the
barrio assembly, It is necessary that at least one- fth 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 bear 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 quali ed 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.Quali cations of voters and candidates. — Every citizen of the
Philippines, twenty-one years of age or over, able to read and write, who has been
a resident of the barrio during the six months immediately preceding the election,
duly registered in the list of voters kept by the barrio secretary, who is not
otherwise disqualified, may vote or be a candidate in the barrio elections.
"The following persons shall not be qualified to vote:
"a.Any person who has been sentenced by nal judgment to suffer
one year or more of imprisonment, within two years after service of his
sentence;
"b.Any person who has violated his allegiance to the Republic of the
Philippines; and
"c.Insane or feeble-minded persons."
All these barrio assembly members, who are at least 18 years of age, although illiterate,
may vote at the plebiscite on the recall of any member of the barrio council or on any
budgetary, supplemental appropriation, or special tax ordinances, a valid action on which
requires "a majority vote of all of the barrio assembly members registered in the list of the
barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a
majority vote of the members present in the barrio assembly, there being a quorum (par. 1,
Sec. 6).
However, in the case of election of barrio of cials, only Filipino citizens, who are at least 21
years of age, able to read and write, residents of the barrio during the 6 months
immediately preceding the election and duly registered in the list of voters kept by the
barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting
procedures may be made xxx either in writing as in regular elections, and/or declaration by
the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly
members quali ed to vote may vote in the plebiscite," cannot sustain the position of
petitioners in G.R. No. L- 36165 that only those who are 21 years of age or above and who
possess all other quali cations 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 quali cations under Section 10 as said Section
6 does not distinguish between those who are 21 or above on the one hand and those 18
or above but below 21 on the other, and whether literate or not, to constitute a quorum of
the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the
barrio assembly can vote as long as they are 18 years of age or above; and that only those
who are 21 years of age or over and can read and write, can vote in the elections of barrio
officials.
Otherwise there was no sense in extending membership in the barrio assembly to those
who are at least 18 years of age, whether literate or not Republic Act No. 3590 could
simply have restated Section 4 of Republic Act No. 2370, the old Barrio Charter, which
provided that only those who are 21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L- 36165 and two of the
petitioners in L-36164 participated in the enactment of Republic Act No. 3590 and should
have known the intendment of Congress in expanding the membership of the barrio
assembly to include all those 18 years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent assembly,
can include 18-years old as quali ed 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 rati ed 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
certi cation 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 certi cation by the said Department Secretary should
likewise be presumed; because it was done in the regular performance of his of cial
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 certi cation by the Department Secretary and the Chief Executive on the
results of the referendum, is further strengthened by the af davits and certi cations of
Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and
Councilor Eduardo T. Paredes of Quezon City.
The procedure for the rati cation of the 1937 amendment on woman suffrage, the 1939
amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments
establishing the bicameral confess, 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, confess 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 rati cation or delegate the
same to the President of the Republic.
The certi cation 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 af rmative votes in the Citizens' Assemblies resulting from such
extrapolation would still constitute a majority of the total votes cast in favor of the 1973
Constitution.

As claimed by petitioners in L-36165, against the certi cation 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 certi cation of Governor Isidro Rodriguez of Rizal, shows only
614,157 Yes votes as against 292,530 No votes. In Cavite province, there were 249,882
Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents' Compliance
(the certi cation by the Department of Local Government and Community Development),
while the alleged certi cation 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 certi cation by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certi cation 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 to 15, 1973 in the province of Cavite; that the acting chairman
and coordinator of the Citizens' Assemblies at that time was Vice-Governor Dominador
Camerino; and that he was shown a letter for his signature during the conduct of the
Citizens' Assemblies, which he did not sign but which he referred to Vice-Governor
Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an af davit dated March 16, 1973 stating that on
January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose Roño
of the Department of Local Government and Community Development showing the results
of the referendum in Pasay City; that on the same day, there were still many Citizens'
Assemblies holding referendum in Pasay City, for which reason he did not send the
aforesaid letter pending submittal of the other results from the said Citizens' Assemblies;
and that in the afternoon of January 15, 1973, he indorsed the complete certi cate of
results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of
Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Of cer in Charge of Pasay City also issued
an af davit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga
Law Of ce 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 of cial 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 of cial, she requested
him if she could give her the unof cial copies thereof, which he gave in good faith (Annex
C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of
Quezon city (Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs.
Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez, of barrio South
Triangle, Quezon City, states that "as far as we know, there has been no Citizens' Assembly
meeting in our Area, particularly in January of this year," does not necessarily mean that
there was no such meeting in said barrio; for she may not have been noti ed 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 Rati cation and
Coordinating Council, certi ed 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 certi cation 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 gures 614,157 and 292,530 mentioned in said letter were based on
the certi cates 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 nal 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 certi cates of results in 26
municipalities of Rizal for nal tabulation (Annex 3-Rejoinder of the Sol. Gen.; italics
supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local
Government and Community Development, issued a certi cate 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 gures showing the results of the referendum
of the Citizens' Assemblies in those areas; and that the said letters were not received by
her of ce and that her records do not show any such documents received by her of ce
(Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by
representing said unsigned letters and/or certi cates 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 gures insisted on by counsel for petitioners in L-36165, if the same
were extrapolated and applied to the other provinces and cities of the country, the Yes
votes would still be overwhelmingly greater than the No votes, applies equally to the
alleged discrepancy between the gures contained in the certi cation of the Secretary of
the Department of Local Government and Community Development and the gures
furnished to counsel for petitioners in L-36165 concerning the referendum in Camarines
Sur, Bataan and Negros Occidental.

The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that
there were more votes in favor of a plebiscite to be held later than those against, only
serves to emphasize that there was freedom of voting among the members of the
Citizens' Assemblies all over the country during the referendum from January 10 to 15,
1973 (Annex-6 Cam. Sur to Rejoinder of Petitioners in L-36165). If there was no such
freedom of choice, those who wanted a plebiscite later would not outnumber those
against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 14, 1973 con rms the "strong
manifestation of approval of the new Constitution by almost 97% by the members of the
Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in
L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the
Citizens' Assemblies voted overwhelmingly in favor of the new Constitution despite the
fact that the second set of questions including the question "Do you approve of the new
Constitution?" was received only on January 10. Provincial Governor Pascual stated that
the "orderly conduct and favorable results of the referendum" were due not only to the
coordinated efforts and cooperation of all teachers and government employees in the area
but also to the enthusiastic participation by the people, showing "their preference and
readiness to accept this new method of government to people consultation in shaping up
government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new Constitution are
registered in the book of voters; it is enough that they are electors voting on the new
Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact
that the number of actual voters in the referendum in certain localities may exceed the
number of voters actually registered for the 1971 elections, can only mean that the excess
represents the quali ed voters who are not yet registered including those who are at least
15 years of age and the illiterates. Although ex-convicts may have voted also in the
referendum, some of them might have been granted absolute pardon or were sentenced to
less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election
Code). At any rate, the ex-convicts constitute a negligible number, discounting which would
not tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the
Liberal Party, stated in his letter dated March 13, 1973 that he does not "feel authorized by
the proper authorities to con rm or deny the data" concerning the number of participants,
t h e Yes votes and No votes in the referendum on the new Constitution among the
members of the Citizens' Assemblies in Caloocan City, does not necessarily give rise to the
inference that Mayor Samson of Caloocan City is being intimidated, having been recently
released from detention; because in the same letter of Mayor Samson, he suggested to
counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the
referendum" from the Of ce of the President (Annex Caloocan-B to Rejoinder of
Petitioners in L-36165). Why did not learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the
computation of the estimated turnover in the Citizens' Assemblies referendum on January
10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapua Institute of
Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent
counsel for petitioners in L-36165 (Annex M-as amended, to Consolidated Rejoinder of
petitioners in L-36165 to the Notes of Arguments and Memorandum of respondents).
Professor Salonga is not a quali ed statistician, which all the more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated March 16,
1973 addressed to the Secretary of the Department of Local Government and Community
Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
"1)I do not quite understand why (Problem I) all quali ed registered voters and the
15-20-year-old youths (1972) will have to be estimated in order to give a 101.9%
estimate of the percentage participation of the '15-20 year old plus total number
of quali ed 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 of cial population projection of this of ce (medium assumption) for '15
year olds and over' as of January 1, 1973 is 22.506 million. If total number of
participants at the Citizens' Assembly Referendum held on January 10-15, 1973
was 16.702 million, participation rate will therefore be the ratio of the latter gure
to the former which gives 74.2%.
"3)I cannot also understand c-2 'Solution to Problem 11.' The
'difference or implied number of 15-20 year olds' of 5,039,906 would
represent really not only all 15 year olds and over who participated at the
Citizens' Assembly but might not have been registered voters at the time,
assuming that all the 11,661,909 registered voted at the Citizens' Assembly.
Hence, the 'estimate percentage participation of 15-20 years olds' of 105.6%
does not seem to provide any meaningful information.
"To obtain the participation rate of '15-20 years old' one must divide
the number in this age group, which was estimated to be 4.721 million as of
January 1, 1973 by the population of '15 years old and over' for the same
period which was estimated to be 22.506 million, giving 21.0%.
"In Problem III, it should be observed that registered voters also
include names of voters who are already dead. It cannot therefore be
assumed that all of them participated at the Citizens' Assembly. It can
therefore be inferred that 'a total number of persons 15 and over
unquali ed/disquali ed 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 quali ed
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 of cial population projection for 15-year olds and over is 22,506,000. If
16,702,000 voted in the referendum, the participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909,
the difference between 16,702,000 who participated in the referendum and the registered
electors of 11,661,909 for the November 8, 1971 elections, is 5,040,091, which may
include not only the 15-year olds and above but below 21 but also the quali ed 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 justi cation 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 quali ed to participate in the referendum because they are
15 years or above including illiterates, which fact should necessarily augment the number
of votes who voted for the 1973 Constitution.
(6)It is also urged that martial law being the rule of force, is necessarily inconsistent with
freedom of choice, because the people fear to disagree with the President as Commander-
in-Chief of the Armed Forces of the Philippines and therefore cannot voice views opposite
to or critical of the position of the President on the 1973 Constitution and on the mode of
its ratification.
It is also claimed or urged that there can be no free choice during martial law which
inevitably generates fear in the individual. Even without martial law, the penal, civil or
administrative sanction provided for the violation of the law ordinarily engenders fear in
the individual which fear persuades the individual to comply with or obey the law. But
before martial law was proclaimed, many individuals did not fear such sanctions of the law
because of lack of effective or equal enforcement or implementation thereof — in brief,
compartmentalized justice and extraneous pressures and in uences frustrated the rm
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
in iction of the punishment or sanction prescribed by the law whenever it is transgressed
during the period of martial law. This is not the fear that affects the voters' freedom of
choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear
are the criminals or the law violators. Surely, petitioners do not come under such category.
(7)Petitioners likewise claim that open voting by viva voce or raising of hands violates the
secrecy of the ballot as secured by the election laws. But the 1935 Constitution does not
require secret voting. We search in vain for such guarantee or prescription in said organic
law. The Commission on Elections under the 1940 Amendment, embodied as Article X is
merely mandated to insure "free, orderly and honest election." Congress, under its plenary
law-making authority, could have validly prescribed in the election law open voting in the
election of public of cers, 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 of cials. 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 of cers who were elected by acclamation presided over by its former
president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3,
1973 issue). There can be no more hardboiled group of persons than newspapermen, who
cannot say that voting among them by acclamation was characterized by fear among the
members of the National Press Club.
Moreover, petitioners would not be willing to af rm 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 of cers 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, sherman,
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 suf cient 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, speci c reforms
advanced by the delegates were discussed both in committee hearings as well as in the
tri-media — the press, radio and television. Printed materials on the proposed reforms
were circulated by their proponents. From June, 1971 to November 29, 1972, reforms
were openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional Convention
reconvened in October, 1972 until January 7, 1973, the provisions of the new Constitution
were debated and discussed in forums sponsored by private organizations and
universities and debated over the radio and on television. The Philippines is a literate
country, second only to Japan in the Far East, and more literate perhaps than many of the
mid-western and southern states of the American Union and Spain. Many residents in
about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates
listened to the radio broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist Teodoro Valencia in his column in
Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora,
Tora) went around the country doing a 30-minute documentary on the Philippines for
American television and stated that what impressed him most in his travel throughout the
country was the general acceptance of the New Society by the people which he saw in his
6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3,
and Sunday Express, March 4), Secretary of the United States Senate, who conducted a
personal survey of the country as delegate of Senator Mike Mans eld, Chairman,
Committee on US-Philippine relations, states:
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines. President Marcos has been prompt and sure-
footed in using the power of presidential decree under martial law for this
Purpose. He has zeroed in on areas which have been widely recognized as
prime sources of the nation's dif culties — land tenure, of cial corruption,
tax evasion and abuse of oligarchic economic power. Clearly, he knows the
targets. What is not y e t 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 . . . (Italics supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who
constitute the majority of the population, do not like the reforms stipulated in the new
Constitution, as well as the decrees, orders and circulars issued to implement the same. It
should be recalled, as herein before stated, that all these reforms were the subject of
discussion both in the committee hearings and on the oor of the Constitutional
Convention, as well as in public forums sponsored by concerned citizens or civic
organizations at which Con-Con delegates as well as other knowledgeable personages
expounded their views thereon and in all the media of information before the proclamation
of martial law on September 21, 1972. This is the reason why the Constitutional
Convention, after spending close to P30 million during the period from June 1, 1971 to
November 29, 1972, found it expedient to accelerate their proceedings in November, 1972
because all views that could possibly be said on the proposed provisions of the 1973
Constitution were already expressed and circulated. The 1973 Constitution may contain
some unwise provisions. But this objection to such unwise or vague provisions, as
heretofore stated, refers to the wisdom of the aforesaid provisions, which issue is not for
this Court to decide; otherwise We will be substituting Our judgment for the judgment of
the Constitutional Convention and in effect acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING
MARTIAL LAW.
The position of the respondent public of cers that under martial law, the President as
Commander-in-Chief is vested with legislative powers, is sustained by the ruling in the
1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178), which reiterates the 1945
case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after
the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
more martial law in the Philippines.
". . . Consequently, in the promulgation and enforcement of Executive
Order No. 68, the President of the Philippines has acted in conformity with
the generally accepted principles and policies of international law which are
part of our Constitution.
"The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed forces, as
upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz.,
664) when we said —
" 'War is not ended simply because hostilities have ceased.
After cessation of armed hostilities, incidents of war may remain
pending which should be disposed of as in time of war. 'An important
incident to a conduct of war is the adoption of measures by the
military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measures those enemies who in their
attempt to thwart or impede our military effort have violated the law
of war.' (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power
to create a military commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the language of a writer,
a military commission 'has jurisdiction so long as a technical state of
war continues. This includes the period of an armistice, or military
occupation, up to the effective date of a treaty of peace, and may
extend beyond, by treaty agreement.' (Cowles, Trial of War Criminals
by Military Tribunals, American Bar Association Journal, June, 1944).'
''Consequently, the President as Commander in Chief is fully
empowered to consummate this un nished aspect of war, namely, the trial
and punishment of war criminals, through the issuance and enforcement of
Executive Order No. 68." (83 Phil. 177-178; italics supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to
this view, when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]),
he de ned martial law as "the exercise of the power which resides in the executive branch
of the government to preserve order and insure the public safety in times of emergency,
when other branches of the government are unable to function, or their functioning would
itself threaten the public safety. " (Italics supplied). There is an implied recognition in the
aforesaid de nition 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 of ces and institutions; the power to
exercise those functions is circumscribed by well-established laws, customs,
and constitutional prescriptions; and the people for whom this government
was instituted are in possession of a lengthy catalogue of economic,
political, and social rights which their leaders recognize as inherent and
inalienable. A severe crisis arises — the Country is invaded by a hostile
power, or a dissident segment of the citizenry revolts, or the impact of a
world-wide depression threathens to bring the nation's economy in ruins.
The government meets the crisis by assuming more powers and respecting
fewer rights. The result is a regime which can act arbitrarily and even
dictatorially in the swift adoption of measures designed to save the state
and its people from the destructive effects of the particular crisis. And the
narrow duty to be pursued by this strong government, this constitutional
dictatorship? Simply this and nothing more: to end the crisis and restore
normal times. The government assumes no power and abridges no right
unless plainly indispensable to that end; it extends no further in time than
the attainment of that end; and it makes no alteration in the political, social
and economic structure of the nation which can not be eradicated with the
restoration of normal times. In short, the aim of constitutional dictatorship is
the complete restoration of the status quo ante bellum. This historical fact
does not comport with philosophical theory, that there never has been a
perfect constitutional dictatorship, is an assertion that can be made without
fear of contradiction. But this is true of all institutions of government, and
the principle of constitutional dictatorship remains eternally valid no matter
how often and seriously it may have been violated in practice."
(Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p.7; italics
supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises
legislative power, whether of temporary or permanent character, thus:
"The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect. Emergency
powers are strictly conditioned by their purpose and this purpose is the
restoration of normal conditions. The actions directed to this end should
therefore be provisional. For example, measures of a legislative nature which
work a lasting change in the structure of the state or constitute permanent
derogations from existing law should not be adopted under an emergency
enabling act, at least not without the positively registered approval of the
legislature. Permanent laws, whether adopted in regular or irregular times,
are for parliaments to enact. By this same token, the decisions and
sentences of extraordinary courts should be reviewed by the regular courts
after the termination of the crisis.
"But what if a radical act of permanent character, one working lasting

changes in the political and social fabric, is indispensable to the successful
prosecution of the particular constitutional dictatorship? The only answer
can be: it must be resolutely taken and openly acknowledged. President
Lincoln found it necessary to proceed to the revolutionary step of
emancipation in aid of his conservative purpose of preserving the Union; as
a constitutional dictator he had a moral right to take this radical action.
Nevertheless, it is imperative that any action with such last effects should
eventually receive the positive approval of the people or of their
representatives in the legislature." (P. 303, italics supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by
revolution, insurrection or subversion or even by just severe economic depression or
dislocation, the government exercises more powers and respects fewer rights in order "to
end the crisis and restore normal times." The government can assume additional powers
indispensable to the attainment of that end — the complete restoration of peace. In our
particular case, eradication of the causes that incited rebellion and subversion as well as
secession, is the sine qua non to the complete restoration of normalcy. Exercise of
legislative power by the President as Commander in Chief, upon his proclamation of
martial law, is justi ed because, as he professes, it is directed towards the institution of
radical reforms essential to the elimination of the causes of rebellious, insurgent or
subversive conspiracies and the consequent dismantling of the rebellious, insurgent or
subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102 is indispensable to the effectuation of the reforms within the shortest possible time
to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak
to maintain its existence?" That was the dilemma that vexed President Lincoln during the
American Civil War, when without express authority in the Constitution and the laws of the
United States, he suspended one basic human freedom — the privilege of the writ of
habeas corpus — in order to preserve with permanence the American Union, the Federal
Constitution of the United States and all the civil liberties of the American people. This is
the same dilemma that presently confronts the Chief Executive of the Republic of the
Philippines, who, more than the Courts and Congress, must, by express constitutional
mandate, secure the safety of our Republic and the rights as well as lives of the against
open rebellion, insidious subversion and succession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power expressly vested in him by
the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and
individual survival in peace and freedom, he is in effect waging a peaceful, democratic
revolution from the center against the violent revolution and subversion being mounted by
the economic oligarchs of the extreme right, who resist reforms to maintain their
economic hegemony, and the communist rebels and Moist oriented secessionists of the
extreme left who demand swift institution of reforms. In the exercise of his constitutional
and statutory powers, to save the state and to protect the citizenry against actual and
threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts
and principles, no matter how revered they may be by jurisprudence and time, should not
be regarded as peremptory commands; otherwise the dead hand of the past will regulate
and control the security and happiness of the living present. A contrary view would be to
deny the self-evident proposition that constitution and laws are mere instruments for the
well-being, peace, security and prosperity of the country and its citizenry. The law as a
means of social control is not static, but dynamic. Paraphrasing Mr. Justice Frankfurter,
the Constitution is neither a printed nality nor the imprisonment of the past, but the
unfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the
Constitution is not to be determined by merely opening a dictionary. Its terms must be
construed in the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and ef cacy of the
concepts embodied in the existing Constitution and persuade another generation to
abandon them entirely, heed should be paid to the wise counsel of some learned jurists
that in the resolution of constitutional questions — like those posed before Us — the
blending of idealism and practical wisdom or progressive legal realism should be applied
(see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-
21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutional
law "is applied politics, using the word in its noble sense." (Frankfurter, Law and Politics,
1939 ed., pp. 3 & 6; italics supplied). Justice Brandeis gave utterance to the truth that "Our
Constitution is not a straight jacket. It is a living organism. As such, it is capable of growth
— or expansion and adaptation to new conditions. Growth implies changes, political,
economic and social." (Brandeis Papers, Harvard Law School; italics supplied). Harvard
Professor Thomas Reed Powell emphasizes "practical wisdom," for " the logic of
constitutional law is the common sense of the Supreme Court." (Powell, the Validity of
State Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-
139, cited in Bickel's Opus, supra; italics supplied).
The eternal paradox in this nite world of mortal and fallible men is that nothing is
permanent except change. Living organisms as well as man-made institutions are not
immutable. Civilized men organize themselves into a State only for the purpose of serving
their supreme interest — their welfare. To achieve such end, they created an agency known
as the government. From the savage era thru ancient times, the Middle Ages, the Dark
Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry,
states and governments have mutated in their search for the magic instrument for their
well-being. It was trial and error then as it is still now. Political philosophies and
constitutional concepts, forms and kinds of government, had been adopted, overturned,
discarded, re-adopted or modi ed to built 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 ponti cal tones of Mr. Justice Benjamin Nathan Cardozo, "so
long as society is inconstant, there can be no constancy in law," and "there will be change
whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-
like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that
governs least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of
government let fools contest; whatever is best administered is best." (Poems of Pope,
1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy,
representative democracy, welfare states, socialist democracy, mitigated socialism, to
outright communism which degenerated in some countries into totalitarianism or
authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations
in the seclusion of his ivory tower, must perforce submit to the inexorable law of change in
his views, concepts, methods and techniques when brought into the actual arena of
con ict as a public functionary — face to face with the practical problems of state,
government and public administration. And so it is that some learned jurists, in the
resolution of constitutional issues that immediately affect the lives, liberties and fortunes
of the citizens and the nation, recommend the blending of idealism with practical wisdom,
which legal thinkers prefer to identify as progressive legal realism. The national leader,
who wields the powers of government, must and has to innovate if he must govern
effectively to serve the supreme interests of the people. This is especially true in times of
great crises where the need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of the people, to promote their well-
being, and to insure the safety and stability of the Republic. When the methods of rebellion
and subversion have become covert, subtle and insidious, there should be a recognition of
the corresponding authority on the part of the Commander-in-Chief of the Armed Forces to
utilize all the available techniques to suppress the peril to the security of the government
and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the
American Constitution and former President of the United States, who personi es the
progressive liberal, spoke the truth when he said that some men "ascribe to men of the
preceding age a wisdom more than human, and suppose what they did to be beyond
amendment . . . But I know also, that laws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more enlightened, as new
discoveries are made, new truths disclosed and manners and opinions change, with the
change of circumstances, institutions must also advance, and keep pace with the times."
(Vol. 12, Encyclopedia Britannica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of
history. It cannot be adequately and fairly appraised within the present ambiance, charged
as it is with so much tension and emotion, if not partisan passion. The analytical, objective
historians will write the nal 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 Paci c — 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 ( led 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 life-and-death
struggle against an organized and well armed rebellion within its own borders and against
a formidable enemy from without its territorial con nes during the last global
armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST
SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy
to convene the Senate of the Philippines even on the assumption that the 1935
Constitution still subsists; because pursuant to the doctrine of separation of powers under
the 1935 Constitution, the processes of this Court cannot legally reach a coordinate
branch of the government or its head. This is a problem that is addressed to the Senate
itself for resolution; for it is purely an internal problem of the Senate. If a majority of the
senators can convene, they can elect a new Senate President and a new Senate President
Pro Tempore. But if they have no quorum, those present can order the arrest of the absent
members (Sec. 10[2], Art. VI, 1935 Constitution). If this falls, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and
certainly does not justify the invocation of the power of this Court to compel action on the
part of a co-equal body or its leadership. This was emphasized with suf cient clarity by
this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22-24), with which the
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. WE stress
that the doctrine of separation of powers and the political nature of the controversy such
as this, preclude the interposition of the Judiciary to nullify an act of a coordinate body or
to command performance by the head of such a co-ordinate body of his functions.
Mystifying is the posture taken by counsels for petitioners in referring to the political
question doctrine — almost in mockery — as a magic formula which should be disregarded
by this Court, forgetting that this magic formula constitutes an essential skein in the
constitutional fabric of our government, which, together with other basic constitutional
precepts, conserves the unity of our people, strengthens the structure of the government
and assures the continued stability of the country against the forces of division, if not of
anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of
the Senate does not depend on the place of session; for the Constitution does not
designate the place of such a meeting. Section 9 of Article VI imposes upon Congress to
convene in regular session every year on the 4th Monday of January, unless a different date
is xed by law, or on special session called by the President. As former Senator Arturo
Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the duty to convene
is addressed to all members of Congress, not merely to its presiding of cers. The fact
that the doors of Congress are padlocked, will not prevent the senators — especially the
petitioners in L-36165 — if they are minded to do so, from meeting elsewhere — at the
Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or
theaters, in their own houses, or at the Araneta Coliseum, which is owned by the father-in-
law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility, for it cannot
validly meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this
petition by five former senators for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and
Roy, mandamus will lie only if there is a law imposing on the respondents the duty to
convene the body. The rule imposing such a duty invoked by petitioners in L-36165 is
purely an internal rule of the Senate; it is not a law because it is not enacted by both
Houses and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to the individual
members of the legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES EIGHT
OR TEN VOTES OF SUPREME COURT.
The petitioners in L-36164 and L-36236 speci cally pray for a declaration that the alleged
rati cation of the 1973 Constitution is null and void and that the said 1973 Constitution be
declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as
Commander-in-Chief during martial law as directly delegated to him by Section 10(2) of
Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is practically
deciding that the same is unconstitutional. The proposed Constitution is an act of the
Constitutional Convention, which is co-equal and coordinate with as well as independent of
either Congress or the Chief Executive. Hence, its nal act, the 1973 Constitution, must
have the same category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973
Constitution should be eight (8) under Section 10 of Article VIII of the 1935 Constitution in
relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amended, or should
be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required
vote of eight (8) or ten (10), as the case may be, for the declaration of invalidity or
unconstitutionality be not achieved, the 1973 Constitution must be deemed to be valid, in
force and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson,
We swear "eternal hostility towards any form of tyranny over the mind of man" as well as
towards bigotry and intolerance, which are anathema to a free spirit. But human rights and
civil liberties under a democratic or republican state are never absolute and never immune
to restrictions essential to the common weal. A civilized society cannot long endure
without peace and order, the maintenance of which is the primary function of the
government. Neither can civilized society survive without the natural right to defend itself
against all dangers that may destroy its life, whether in the form of invasion from without
or rebellion and subversion from within. This is the rst law of nature and ranks second to
none in the hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established government,
impliedly submits to certain constraints on his freedom for the general welfare and the
preservation of the State itself, even as he reserves to himself certain rights which
constitute limitations on the powers of government. But when there is an inevitable clash
between an exertion of governmental authority and the assertion of individual freedom, the
exercise of which freedom imperils the State and the civilized society to which the
individual belongs, there can be no alternative but to submit to the superior right of the
government to defend and preserve the State. In the language of Mr. Justice Holmes —
often invoked by herein petitioners — "when it comes to a decision involving its (state life,
the ordinary rights of individuals must yield to what he (the President) deems the
necessities of the moment. Public danger warrants the substitution of executive process
for judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was
admitted with regard to killing men in the actual clash of arms. And we think it is obvious,
although it was disputed, that the same is true of temporary detention to prevent
apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order
and security for all, that should be the shibboleth; for freedom cannot be enjoyed in an
environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program
long before September 21, 1972, realized almost too late that he was being deceived by
his partymates as well as by the opposition, who promised him cooperation, which
promises were either offered as a bargaining leverage to secure concessions from him or
to delay the institution of the needed reforms. The people have been victimized by such
bargaining and dilly-dallying. To overt a terrifying blood bath and the breakdown of the
Republic, the incumbent President proclaimed martial law to save the Republic from being
overrun by communists, secessionists and rebels by effecting the desired reforms in order
to eradicate the evils that plague our society, which evils have been employed by the
communists, the rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be decimated. How
many of the petitioners and their counsels have been utilizing the rebels, secessionists and
communists for their own personal or political purposes and how many of them are being
used in turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the
populace, more than for their own selves, they should be willing to give the incumbent
Chief Executive a chance to implement the desired reforms. The incumbent President
assured the nation that he will govern within the framework of the Constitution and if at
any time, before normalcy is restored, the people thru their Citizens' Assemblies, cease to
believe in his leadership, he will step down voluntarily from the Presidency. But if, as
apprehended by the petitioners, he abuses and brutalizes the people, then to the
battlements we must go to man the ramparts against tyranny. This, it is believed, he knows
only too well; because he is aware that he who rides the tiger will eventually end inside the
tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and were burned at
stake or beheaded or hanged or guillotined by the very people whom they at rst
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.: For Dismissal of Petitions
These petitions seek to stop and prohibit the respondents Executive Of cers from
implementing the Constitution signed on November 30, 1972; in L-36165, to compel
respondents Gil Puyat and Jose J. Roy, President and President Pro-Tempore, respectively,
of the Senate under the 1935 Constitution, to convene the Senate in regular session which
should have started on January 22, 1973; to nullify Proclamation No. 1102 of the President
issued on January 17, 1973, which declared the rati cation of the Constitution on
November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies
established under Presidential Decree No. 86 issued on December 31, 1972, which were
empowered under Presidential Decree No. 86-A, issued on January 5, 1973, to act in
connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1.That the Constitutional Convention was not a free forum for the making of a Constitution
after the declaration of Martial Law on September 21, 1972.
2.The Convention was not empowered to incorporate certain provisions in the 1972
Constitution because they are highly unwise and objectionable and the people were not
sufficiently informed about them.
3.The President had no authority to create and empower the Citizens Assemblies to ratify
the new Constitution at the referendum conducted in connection therewith, as said
assemblies were merely for consultative purposes, and
4.The provisions of Article XV of the 1935 Constitution prescribing the manner of
amending the same were not duly observed.
The petitions were not given due course immediately but were referred to the Solicitor
General as counsel for the respondents for comment, with three members of the Court,
including the undersigned, voting to dismiss them outright. The comments were
considered motions to dismiss which were set for hearing and extensively argued.
Thereafter both parties submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss
hinges, are as follows:
1.Is the question presented political and, hence, beyond the competence of this Court to
decide, or is it justiciable and fit for judicial determination?
2.Was the new Constitution of November 30, 1972, rati ed 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 af rmative, 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 he foreclosed and all
debates on whether it was duly or lawfully ushered into existence as the organic law of the
state become political and not judicial in character.
The undisputed facts that lead to the issuance of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the
Plebiscite cases decided on January 22, 1973, and need not be repeated here.
Petitioners seeks to set at naught Proclamation No. 1102 and Presidential Decrees Nos.
86 and 86-A, claiming that the rati cation 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 fteen years of age, and through
these assemblies the proposed 1972 Constitution was submitted to the people for
rati cation. 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 rati cation 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 rati cation 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
of ces under the 1935 Constitution. In brief the Legislative Department under the 1935
Constitution is a thing of the past. The Executive Department has been fully reorganized;
new appointments of key executive of cers 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 of ces 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 nds 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 rati ed, 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 ying 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 rati cation
at that, submission of the people thereto by the organization of the government provided
therein and observance of its prescriptions by public of cers 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 property 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; and
therefore, if a state court should enter upon such an inquiry, and come to the
conclusion that the government under which it acted had been displaced by an
opposing government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it decides at all,
it must necessarily af rm 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 of appointing judges to expound and
administer them. The acceptance of the judicial of ce is a recognition of the
authority of the government from which it is derived. And if the authority of that
government is annulled and overthrown, the power of its courts and other of cers
is annulled with it. And if a State court should enter upon the inquiry proposed in
this case, and should come to the conclusion that the government under which it
acted had been put aside and displaced by an opposing government it would
cease to be a court, and be incapable of pronouncing a judicial decision upon the
question it undertook to try. If it decides at all as a court, it necessarily af rms the
existence and authority of the government under which it is exercising judicial
power."
The foreign relations of the Republic of the Philippines have been normally conducted on
the basis of the new Constitution and no state with which we maintain diplomatic relations
has withdrawn its recognition of our government. (For particulars about executive acts
done under the new Constitution, see pages 22-25 of the Comments of the Solicitor
General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and
86-A by this Court would smack of plain political meddling which is described by the
United States Supreme Court as "entering a political thicket" in Colegrove vs. Green, 328
U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the
proper attitude towards political upheavals and realize that the question before Us is
political and not t for judicial determination. For a political question is one entrusted to
the people for judgment in their sovereign capacity (Tañada vs. Cuenco, G.R. No. L-10520,
Feb. 28, 1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the Government
(Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon,
46 Phil. 35; Cabili vs. Francisco, G. R. No. 4638, May 8, 1931). A case involves a political
question when there would be "the impossibility of undertaking independent resolutions
without expressing a lack of respect due to coordinate branches of government", or when
there is "the potentiality of embarassment 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 new Constitution to replace the 1935
Constitution. The new organic law is now in the plenitude of its ef cacy and vigor. We are
now living under its aegis and protection and only the cynics will deny this. This Court
should not in the least attempt to act as a super-legislature or a super- board of
canvassers and sow confusion and discord among our people by ponti cating that there
was no valid rati cation of the new Constitution. The sober realization of its proper role
and delicate function and its consciousness of the limitations on its competence,
especially in situations like this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those who wish the Court to engage
in their brand of activism and would not mind plunging it into the whirlpool of passion and
emotion in an effort to capture the entoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR , J., concurring and dissenting:
In these ve cases, the main issue to be resolved by this Court is whether or not the
Constitution proposed by the Constitutional Convention of 1971 had been rati ed in
accordance with the provisions of Article XV of the 1935 Constitution. In the plebiscite
cases, which were decided by this Court on January 22, 1973 1 , 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
rati ed. 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 rati ed. I was the only one who expressed the opinion that the
proposed Constitution was not validly rati ed and therefore "it should not be given force
and effect."
The Court is now called upon to declare, and to inform the people of this country, whether
or not that proposed Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the
issue that we have mentioned because that issue is a political question that cannot be
decided by this Court. This contention of the Solicitor General is untenable. A political
question relates to "those questions which under the Constitution are to be decided by the
people in their sovereign capacity or in regard to which full discretionary authority has
been delegated to the legislative, or to the executive, branch of the government. 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 of cer under a constitutional government must act according
to law and subject to its restrictions, and every departure therefrom, or disregard thereof,
must subject him to the restraining and controlling power of the people, acting through the
agency of the judiciary. It must be remembered that the people act through the courts, as
well as through the executive or the legislature. One department is just as representative
as the other, and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all of cial actions 4 . In the case of
Gonzales v. Commission on Elections 5 , 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.
Cuenco 6 , this Court held that the exception to the rule that courts will not interfere with a
political question affecting another department is when such political question involves an
issue as to the construction and interpretation of the provisions of the constitution. And
so, it has been held that the question of whether a constitution shall be amended or not is
a political question which is not in the power of the court to decide, but whether or not the
constitution has been legally amended is a justiciable question. 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 rati cation of any change in the
Constitution. Rati cation or non-rati cation 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 rati ed 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 rati ed, I am reproducing herein pertinent
portions of my dissenting opinion in the plebiscite cases:
"The rati cation of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section 1, Article
XV of the 1935 Constitution of the Philippines, which reads:
'Section 1.The Congress in joint session assembled by a vote of
three fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments shall
be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the
people for their ratification.'
"It is in consonance with the abovequoted provision of the 1935 Constitution that
on March 16, 1967, the Congress of the Philippines passed Resolution No. 2
calling a convention to propose amendments to the Constitution of the
Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
'SECTION 7.The amendments proposed by the Convention shall be
valid and considered part of the Constitution when approved by a majority
of the votes cast in an election at which they are submitted to the people
for their ratification pursuant to Article XV of the Constitution.'
"It follows that from the very resolution of the Congress of the Philippines which
called for the 1971 Constitutional Convention there was a clear mandate that the
amendments proposed by the 1971 Convention, in order to be valid and
considered part of the Constitution, must be approved by majority of the votes
cast in an election at which they are submitted to the people for their rati cation
as provided in the Constitution.
"This Court, in the case of Tolentino vs. Commission on Elections, L-35140,
October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said:
'The Constitutional Convention of 1971, as any other convention of
the same nature, owes its existence and derives all its authority and power
from the existing Constitution of the Philippines. This Convention has not
been called by the people directly as in the case of a revolutionary
convention which drafts the rst Constitution of an entirely new
government born of either a war of liberation from a mother country or of a
revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true
that the convention is completely without restraint and omnipotent all wise,
and it is as to such conventions that the remarks of Delegate Manuel
Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez
refer. No amount of rationalization can belie the fact that the current
convention came into being only because it was called by a resolution of a
joint session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution . . .
xxx xxx xxx
'As to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the
Constitution, the Convention and its of cers 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 certi ed 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 rati ed 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 unequivocably states that the proposed
Constitution of 1972 was voted upon by the barangays. It is very clear, therefore,
that the voting held in these barangays is not the election contemplated in the
provisions of Section 1, Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an election held in accordance
with the provisions of the election law, where only the quali ed and registered
voters of the country would cast their votes, where of cial 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 rati ed; on April 30, 1937, when the amendment to the Constitution providing
for Women's Suffrage was rati ed; on June 18, 1940, when the 1940
Amendments to the Constitution were rati ed; on March 11, 1947 when the Parity
Amendment to the Constitution was rati ed; 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
rati cation of the proposed 1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the rati cation of the proposed
constitution. It is very clear, to me, that Proclamation No. 1102 was issued in
complete disregard or in violation, of the provisions of Section 1 of Article XV of
the 1935 Constitution.
"Proclamation No. 1102 mentions, furthermore, that on the question as to whether
or not the people would still like a plebiscite to be called to ratify the new
Constitution, 14,298,814 members of the barangays answered that there was no
need for a plebiscite but that the vote of the barangays should be considered a
vote in a plebiscite. It would thus appear that the barangays assumed the power
to determine whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was completely
disregarded.
"The af rmative 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 quali ed voters or electors pass
on various public matters submitted to them — the election of of cers,
national, state, county, township — the passing on various other questions
submitted for their determination.' (29 C.J.S. 13, citing Iowa-llinois 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 Ill. App. 63; Rothfels v. Southworth, 356
P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Italics supplied).
"In this connection I herein quote the pertinent provisions of the Election Code of
1971:
'Sec. 2.Applicability of this Act. — All elections of public of cers
except barrio of cials 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 quali ed 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 rst applying for cancellation
of his previous registration.' (Italics supplied). (Please see also Sections
100-102, Election Code of 1971, RA. No. 6388).
"It is stated in Proclamation No. 1102 that the voting was done by the members of
citizens assemblies who are 15 years of age or over. Under the provision of
Section 1 of Article V of the 1935 Constitution the age requirement to be a
qualified voter is 21 years or over.
"But what is more noteworthy is the fact that the voting in the barangays, except
in very few instances, was done by the raising of hands by the persons
indiscriminately gathered to participate in the voting, where even children below
15 years of age were included. This is a matter of common observation, or of
common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the
basis in declaring whether a Constitution is rati ed 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 rati ed or not, must not be decided by simply gathering people and
asking them to raise their hands in answer to the question of whether they vote
for or against a proposed Constitution. The election processes as provided by law
should be strictly observed in determining the will of the sovereign people in a
democracy. In our Republic the will of the people must be expressed through the
ballot in a manner that is provided by law.
"It is said that in a democracy the will of the people is the supreme law. Indeed,
the people are sovereign, but the will of the people must be expressed in a manner
as the law and the demands of a well-ordered society require. The rule of law
must prevail even over the apparent will of the majority of the people, if that will
had not been expressed, or obtained, in accordance with the law. Under the rule of
law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the
ratification of an amendment to the Constitution.
"The following citations are, to me, very relevant in the effort to determine whether
the proposed Constitution of 1972 had been validly ratified, or not:
'When it is said that 'the people' have the right to alter or amend the
constitution, it must not be understood that this term necessarily includes
all the inhabitants of the state. Since the question of the adoption or
rejection of a proposed new constitution or constitutional amendment
must be answered by a vote, the determination of it rests with those who,
by the existing constitution, are accorded the right of suffrage. But the
quali ed electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a
constitution should be abrogated, and a new one adopted, by the whole
mass of people in a state, acting through representatives not chosen by the
'people' in the political sense of the term, but by the general body of the
populace, the movement would be extra-legal' (Black's Constitutional Law,
Second Edition, pp. 47-48).
'The theory of our political system is that the ultimate sovereignty is
in the people, from whom springs all legitimate authority. The people of the
Union created a national constitution, and conferred upon it powers of
sovereignty over certain subjects, and the people of each State created a
State government, to exercise the remaining powers of sovereignty so far
as they were disposed to allow them to be exercised at all. By the
constitution which they establish, they not only tie up the hands of their
of cial agencies, but their own hands as well; and neither the of cers 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
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 suf cient 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 requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people as on the
legislature, and the former are powerless by vote of acceptance to give
legal sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution.' (16 C.J.S. 35-36
cited in Graham v. Jones, 3 So. 2d 761, 782).
'It is said that chaos and confusion in the governmental affairs of
the State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and manifestly
inaccurate. If confusion and chaos should ensue, it will not be due to the
action of the Court but will be the result of the failure of the drafters of the
joint resolution to observe, follow and obey the plain essential provisions
of the Constitution. Furthermore, to say that, unless the Court disregards its
sworn duty to enforce the Constitution, chaos and confusion will result, is
an inherently weak argument in favor of the alleged constitutionality of the
proposed amendment. It is obvious that, if the Court were to countenance
the violations of the sacramental provisions of the Constitution, those who
would thereafter desire to violate it and disregard its clear mandatory
provisions would resort to the scheme of involving and confusing the
affairs of the State and then simply tell the Court that it was powerless to
exercise one of its primary functions by rendering the proper decree to
make the Constitution effective.' (Graham v. Jones, 3 So. 2d. 761, 793-
794).
"In our jurisprudence I nd 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 of ce 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 ling of the same. However, on October 10, 1947,
after the period for the ling of certi cate of candidacy, Monsale withdrew his
certi cate of candidacy. But on November 7, 1947 Monsale attempted to revive
his certi cate of candidacy by withdrawing the withdrawal of his certi cate of
candidacy. e ( The Commission on Elections, on November 8, 1947, ruled that
Monsale could no longer be a candidate. Monsale nevertheless proceeded with
his candidacy. The boards of inspectors in Miagao, however, did not count the
votes cast for Monsale upon the ground that the votes cast for him were stray
votes, because he was considered as having no certi cate of candidacy. On the
other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale led 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 certi cate of candidacy his attempt
to revive it by withdrawing his withdrawal of his certi cate of candidacy did not
restore the effectiveness of his certi cate 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 rati cation of the amendment to the Constitution, the
af rmative votes cast in those assemblies can not be made the basis for
declaring the rati cation of the proposed 1972 Constitution, in spite of the fact
that it was reported that 14,976,561 members of the citizens assemblies voted for
the adoption as against 743,869 for the rejection, because the votes thus
obtained were not in accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution of the Philippines. The rule of law must he upheld.
"My last observation: One of the valid grounds against the holding of the
plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that
there is no freedom on the part of the people to exercise their right of choice,
because of the existence of martial law in our country. The same ground holds
true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the
Philippines ordered 'that the provisions of Section 3 of Presidential Decree No. 73
in so far as they allow free public discussion of the proposed constitution, as well
as any 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, he suspended in the meantime.' It is, therefore, my view that voting in
the barangays on January 10-15, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays should not be made the
basis for the proclamation of the ratification of the proposed Constitution.
"It is my view, therefore, that Proclamation No. 1102 is 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 rati ed by the people of this Republic, and so it should not be given force
and effect."
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was
a substantial compliance with the provisions of Article XV of the 1935 Constitution. The
Solicitor General-maintains that the primary thrust of the provision of Article XV of the
1935 Constitution is that "to be valid, amendments must gain the approval of the majority
in recognition of the democratic postulate that sovereignty resides in the people." It is not
disputed that in a democracy sovereignty resides in the people. But the term "people" must
be understood in its constitutional meaning, and they are "those persons who are
permitted by the Constitution to exercise the elective franchise." 8 Thus, in Section 2 of
Article VII of the 1935 Constitution, it is provided that "The President shall hold his of ce
during a term of four years and, together with the Vice- President chosen for the same
term, shall be elected by direct vote of the people . . ." Certainly under that constitutional
provision the "people" who elect directly the President and the Vice-President are no other
than the persons who, under the provisions of the same Constitution, are granted the right
to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which
says "Sovereignty resides in the people and all government authority emanates from them",
the "people" who exercise the sovereign power are no other than the persons who have the
right to vote under the Constitution. In the case of Garchitorena vs. Crescini 9 , 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 quali ed voters, in duly appointed elections held from time to time, by
means of which they choose their of cials for de nite xed 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, 1 0 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, 1 1 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
quali cations. The people, in clothing a citizen with the elective franchise for the purpose
of securing a consistent and perpetual administration of the government they ordain,
charge him with the performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people. This duty requires that the
privilege thus bestowed should be exercised, not exclusively for the bene t of the citizen
or class of citizens professing it, but in good faith and with an intelligent zeal for the
general bene t 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 quali ed and registered voters who vote during an election that is
held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be
construed along with the term "election" as used in the provisions of Section 4 of the
Philippine Independence Act of the Congress of the United States, popularly known as the
Tydings-McDuf e Law (Public Act No. 127). Said Section 4 of the Tydings-McDuf e Law
provides as follows:
"Section 4.After the President of the United States has certi ed that the
constitution conforms with the provisions of this act, it shall be submitted to the
people of the Philippine Islands for their rati cation or rejection at an election to
be held within four months after the date of such certi cation, on a date to be
xed by the Philippine Legislature, at which election the quali ed voters of the
Philippine Islands shall have an opportunity to vote directly for or against the
proposed constitution and ordinances appended thereto. Such election shall be
held in such manner as may be prescribed by the Philippine Legislature, to which
the return of the election shall be made. The Philippine Legislature shall by law
provide for the canvassing of the return and shall certify the result of the
Governor- General of the Philippine Islands, together with a statement of the votes
cast, and a copy of said constitution and ordinances. If a majority of the votes
cast shall be for the constitution, such vote shall be deemed an expression of the
will of the people of the Philippine Independence, and the Governor-General shall,
within thirty days after receipt of the certi cation from the Philippine Legislature,
issue a proclamation for the election of of cers 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 1 of 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 of cials prior to the drafting of the 1935 Constitution, and also the "election"
mentioned in the Independence Act at which "the quali ed 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 rati cation or any amendment to the 1935 Constitution could
only he done by holding an election, as the term "election" was understood, and practiced,
when the 1935 Constitution was drafted. The alleged referendum in the citizens
assemblies — participated in by persons aged 15 years or more, regardless of whether
they were quali ed voters or not, voting by raising their hands, and the results of the voting
reported by the barrio or ward captain to the municipal mayor, who in turn submitted the
report to the Provincial Governor, and the latter forwarding the reports to the Department
of Local Governments, all without the intervention of the Commission on Elections which is
the constitutional body which has exclusive charge of the enforcement and administration
of all laws relative to the conduct of elections — was not only a non-substantial compliance
with the provisions of Section 1 of Article XV of the 1935 Constitution but a downright
violation of said constitutional provision. It would be indulging in sophistry to maintain that
the voting in the citizens assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935 Constitution, 1935
Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by
the 1971 Constitutional Convention was not rati ed 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 rati ed 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 of cials 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 of ce had taken the
steps to implement the provisions of the new Constitution. True it is, that some 92
members of the House of Representatives and 15 members of the Senate, of the
Congress of the Philippines had expressed their option to serve in the interim National
Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It
must be noted, however, that of the 15 senators who expressed their option to serve in the
interim National Assembly only one of them took his oath of office, and of the 92 members
of the House of Representatives who opted to serve in the interim National Assembly, only
22 took their oath of of ce. The fact, that only one Senator out of 24, and only 22
Representatives out of 110, took their oath of of ce, is an indication that only a small
portion of the members of Congress had manifested their acceptance of the new
Constitution. It is in the taking of the oath of office where the affiant says that he swears to
"support and defend the Constitution" that the acceptance of the Constitution is made
manifest. I agree with counsel for petitioners in 1,36165 (Gerardo Roxas, et al. v. Alejandro
Melchor, et al.) when he said that the members of Congress who opted to serve in the
interim National Assembly did so only ex abundante cautela, or by way of a precaution, or
making sure, that in the event the new Constitution becomes de nitely effective and the
interim National Assembly is convened they can participate in legislative work in their
capacity as duly elected representatives of the people, which otherwise they could not do
if they did not manifest their option to serve, and that option had to be made within 30
days from January 17, 1973, the date when Proclamation No. 1102 was issued. Of course,
if the proposed Constitution does not become effective, they continue to be members of
Congress under the 1935 Constitution. Let it be considered that the members of the
House of Representatives were elected in 1969 to serve a term which will yet expire on
December 31, 1973. Whereas, of the Senators who opted to serve in the interim National
Assembly, the term of some of them will yet expire on December 31, 1973, some on
December 31, 1975, and the rest on December 31, 1977. Let 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 af rmative 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 rati ed
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 rati ed and has come into effect. It being my considered view that the
rati cation of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, I hold
that Proclamation No. 1102 is invalid and should not be given force and effect. The
proposed Constitution, therefore, should be considered as not yet validly rati ed, and so it
is not in force. The proposed Constitution may still be submitted to a plebiscite in
conformity with Section 1 of Article XV of the 1935 Constitution. Incidentally, I must state
that the 1935 Constitution is still in force, and this Court is still functioning under the 1935
Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in
an election or plebiscite held in accordance with the provisions of Section 1 of Article XV
of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the
mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a
convention to propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the nation that the
government of our Republic since the declaration of martial law is not a revolutionary
government, and that he has been acting all the way in consonance with his powers under
the Constitution. The people of this Republic has reason to be happy because, according
to the President, we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a law calling for
an election at which the Constitution proposed by the 1971 Constitutional Convention will
be submitted to the people for their rati cation or rejection. A plebiscite called pursuant to
Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we still
have in our country the Rule of Law, and that the democratic system of government that
has been implanted in our country by the Americans, and which has become part of our
social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring
about stability in the democratic and constitutional system in our country. I feel that if this
Court would give its imprimatur to the rati cation of the proposed Constitution, as
announced in Proclamation No. 1102, it being very clear that the provisions of Section 1 of
Article XV of the 1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean is that if this
Court now declares that a new Constitution is now in force because the members of the
citizens assemblies had approved said new Constitution, although that approval was not in
accordance with the procedure and the requirements prescribed in the 1935 Constitution,
it can happen again in some future time that some amendments to the Constitution may
be adopted, even in a manner contrary to the existing Constitution and the law, and then
said proposed amendment is submitted to the people in any manner and what will matter
is that a basis is claimed that there was approval by the people. There will not be stability
in our constitutional system, and necessarily no stability in our government. As a member
of this Court I only wish to contribute my humble efforts to prevent the happening of such
a situation in the future.
It appearing to me that the announced rati cation 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 of ce to defend
and support the 1935 Constitution. I am inspired by what the great jurist and statesman,
Jose P. Laurel, said:
"Let our judges be as it were the vestal keepers of the purity and sanctity of our
Constitution, and the protection and vindication of popular rights will be safe and
secure in their reverential guardianship."
I only wish to help prevent, if I can, democracy and the liberties of our people from
vanishing in our land, because, as Justice George Sutherland of the U. S. Supreme Court
said:
"(t)he saddest epitaph which can be carved in memory of a vanished liberty is
that it was lost because its possessors failed to stretch forth a saving hand while
yet there was time."
I concur fully with the personal views expressed by the Chief Justice in the opinion that he
has written in these cases. Along with him, I vote to deny the motion to dismiss and to give
due course to the petitions in these cases.
FERNANDO , J., dissenting :

No question more momentous, none impressed with such transcendental signi cance is
likely to confront this Court in the near or distant future as that posed by these petitions.
For while the speci c substantive issue is the validity of Presidential Proclamation No.
1102, an adverse judgment may be fraught with consequences that, to say the least, are
far-reaching in its implications. As stressed by respondents, "what petitioners really seek
to invalidate is the new Constitution." 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 rati cation. It could very well be though that the ultimate outcome
is not con ned 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
for this Court to give heed to the plea of petitioners that the most serious attention be paid
to their submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due respect for the opinion
of my brethren, I must perforce dissent. It would follow therefore that the legal position
taken by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the
whole, my concurrence, subject, of course, to reservations insofar as it contains views and
nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief
expression of the reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not
expected to be an oracle given to utterances of eternal verities, but certainly it is more than
just a keen but passive observer of the contemporary scene. It is, by virtue of its role under
the separation of powers concept, involved not necessarily as a participant in the
formation of government policy, but as an arbiter of its legality. Even then, there is realism
in what Lerner did say about the American Supreme Court as "the focal point of a set of
dynamic forces which [could play] havoc with the landmarks of the American state and
determine the power con guration 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 Black 5 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 af rming constitutional supremacy, the political departments
could seek the aid of the judiciary. For the assent it gives to what has been done conduces
to its better support in a regime where the rule of law holds sway. In discharging such a
rule, this Court must necessarily take into account not only what the exigent needs of the
present demand but what may lie ahead in the unexplored and unknown vistas of the
future. It must guard against the pitfall of lack of understanding of the dominant forces at
work to seek a better life for all, especially those suffering from the pangs of poverty and
disease, by a blind determination to adhere to the status quo. It would be tragic, and a
clear case of its being recreant to its trust, if the suspicion can with reason be entertained
that its approach amounts merely to a militant vigilantism that is violently opposed to any
form of social change. It follows then that it does not suf ce that recourse be had only to
what passes for scholarship in the law that could be marred by inapplicable erudition and
narrow legalism. Even with due recognition of such factors, however, I cannot, for reasons
to be set more at length and in the light of the opinion of the Chief Justice, reach the same
result as the majority of my brethren. For, in the last analysis, it is my rm conviction that
the institution of judicial review speaks too clearly for the point to be missed that of cial
action, even with due allowance made for the good faith that invariably inspires the step
taken, has to face the gauntlet of a court suit whenever there is a proper case with the
appropriate parties.
1.Respondents are acting in the soundest constitutional tradition when, at the outset, they
would seek a dismissal of these petitions. For them, the question raised is political and
thus beyond the jurisdiction of this Court. Such an approach cannot be indicted for
unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people
and that government possesses powers only. Essentially then, unless such an authority
may either be predicated on express or implied grant in the Constitution or the statutes, an
exercise thereof cannot survive an inquiry as to its validity. Respondents through Solicitor-
General Mendoza would deny our competence to proceed further. It is their view,
vigorously pressed and plausibly asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into effect of a new constitution, the
matter is not justiciable. The immediate reaction is that such a contention is to be tested in
the light of the fundamental doctrine of separation of powers that it is not only the function
but the solemn duty of the judiciary to determine what the law is and to apply it in cases
and controversies that call for decision. 7 Since the Constitution pre-eminently occupies
the highest rung in the hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal,
that such a responsibility is vested. With the 1935 Constitution containing, as above noted,
an explicit article on the subject of amendments, it would follow that the presumption to
be indulged in is that the question of whether there has been deference to its terms is for
this Court to pass upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 1 0 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 rati cation, for
from the very language of the controlling article, the two vital steps are proposal and
rati cation, which as pointed out in Dillon v. Gloss, 1 1 "cannot be treated as unrelated acts,
but as succeeding steps in a single endeavor." 1 2 Once an aspect thereof is viewed as
judicial, there would be no justi cation for considering the rest as devoid of that character.
It would be for me then an indefensible retreat, deriving no justi cation 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. 1 3 Thus: "The term has been made applicable to controversies clearly non judicial
and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject
to its cognizance, as to which there has been a prior legislative or executive determination
to which deference must be paid. It has likewise been employed loosely to characterize a
suit where the party proceeded against is the President or Congress, or any branch
thereof. If to be delimited with accuracy, 'political questions' should refer to such as would
under the Constitution be decided by the people in their sovereign capacity or in regard to
which full discretionary authority is vested either in the Presidency or Congress. It is thus
beyond the competence of the judiciary to pass upon. Unless clearly falling within the
above formulation, the decision reached by the political branches whether in the form of a
congressional act or an executive order could be tested in court. Where private rights are
affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of
that such a power comes into play if there be an appropriate proceeding that may be led
only after either coordinate branch has acted. Even when the Presidency or Congress
possesses plenary power, its improvident exercise or the abuse thereof, if shown, may give
rise to a justiciable controversy. For the constitutional grant of authority is not 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." 1 4
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." 1 5 After a thorough study of American judicial decisions, both
federal and state, he could conclude: "The eld 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 eld of public or
governmental interests." 1 6 Nor was Professor Weston's formulation any different. As was
expressed by him: "Judicial questions, in what may be thought the more useful sense, are
those which the sovereign has set to be decided in the courts. Political questions, similarly,
are those which the sovereign has entrusted to the so called political departments of
government or has reserved to be settled by its own extra-governmental action." 1 7 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 1 8 of Yale and Professor Freund 1 9
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 con dence in instrumentalities of the
State other than those directly chosen by them for the exercise of their sovereignty." 2 0 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 of Justice
Laurel in an early landmark case, People v. Vera, 2 1 decided in 1937: "If it is ever necessary
for us to make any vehement af rmance during this formative period of our political
history, it is that we are independent of the Executive no less than of the Legislative
department of our government — independent in the performance of our functions,
undeterred by any consideration, free from politics, indifferent to popularity, and unafraid
of criticism in the accomplishment of our sworn duty as we see it and as we understand
it." 2 2 The hope of course was that such assertion of independence and impartiality was
not mere rhetoric. That is a matter more appropriately left to others to determine. It
suf ces to state that what elicits approval on the part of our people of a judiciary ever alert
to inquire into alleged breaches of the fundamental law is the realization that to do so is
merely to do what is expected of it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it needs to be kept in kind always
that it can act only when there is a suit with proper parties before it, wherein rights
appropriate for judicial enforcement are sought to be vindicated. Then, too, it does not
approach constitutional questions with dogmatism or apodictic certainty nor view them
from the shining cliffs of perfection. This is not to say though that it is satis ed with an
empiricism untroubled by the search for jural consistency and rational coherence. A
balance has to be struck. So juridical realism requires. Once allowance is made that for all
its care and circumspection this Court is manned by human beings fettered by fallibility,
but nonetheless earnestly and sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to
understand. It has not in the past shirked its responsibility to ascertain whether there has
been compliance with and delity to constitutional requirements. Such is the teaching of a
host of cases from Angara v. Electoral Commission 2 3 to Planas v. Commission on
Elections. 2 4 It should not start now. It should continue to exercise its jurisdiction, even in
the face of a plausible but not suf ciently persuasive insistence that the matter before it is
political.
Nor am I persuaded that the reading of the current drift in American legal scholarship by
the Solicitor-General and his equally able associates presents the whole picture. On the
question of judicial review, it is not a case of black and white; there are shaded areas. It
goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of
distrust. This expression of disapproval has not escaped Dean Rostow of Yale, who began
one of his most celebrated legal essays. The Democratic Character of Judicial Review,
thus: "A theme of uneasiness, and even of guilt, colors the literature about judicial review.
Many of those who have talked, lectured, and written about the Constitution have been
troubled by a sense that judicial review is undemocratic." 2 5 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." 2 6 His view was precisely the
opposite. Thus: "The power of constitutional review, to be exercised by some part of the
government, is implicit in the conception of a written constitution delegating limited
powers. A written constitution would promote discord rather than order in society if there
were no accepted authority to construe it, at the least in cases of con icting 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." 2 7
More than that, he took pains to emphasize: "Whether another method of enforcing the
Constitution could have been devised, the short answer is that no such method has
developed. The argument over the constitutionality of judicial review has long since been
settled by history. The power and duty of the Supreme Court to declare statutes or
executive action unconstitutional in appropriate cases is part of the living Constitution.
'The course of constitutional history,' Mr. Justice Frankfurter recently remarked, 'has cast
responsibilities upon the Supreme Court which it would be "stulti cation" for it to evade."
2 8 or is it only Dean Rostow who could point to Fraukfurter, reputed to belong to the same
school of thought opposed to judicial activism, if not its leading advocate during his long
stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches
to a tribunal which neglects to meet the demands of judicial review. There is a statement
of similar import from Professor Mason: "In Stein v. New York Frankfurter remarked,
somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.'" 2 9 Professor Konefsky, like Dean Rostow, could not
accept the characterization of judicial review as undemocratic. Thus in his study of Holmes
and Brandeis, the following appears: "When it is said that judicial review is an undemocratic
feature of our political system, it ought also to be remembered that the 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
cheeks. 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 dif culty lies in this:
you must rst enable the government to control the governed; and in the next place oblige
it to control itself.'" 3 0
There is thus an inevitability to the owering 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 tness of such competence being vested in judges
and of their being called upon to ful ll 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." 3 1 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. 3 2 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." 3 3 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 . . ." 3 4 The above statement is more than just an aphorism that lends itself to inclusion
in judicial anthologies or bar association speeches. It could and did provoke from Justice
Jackson, an exponent of the judicial restraint school thought, this meaningful query: "The
Constitution nowhere provides that it shall be what the judges say it is. How, then, did it
come about that the statement not only could be made but could become current as the
most understandable and comprehensive summary of American constitutional law?" 3 5 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." 3 6 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 re ected in two leading cases of recent vintage, Baker v. Carr, 3 7
decided in 1962 and Powell v. MacCormack, 3 8 in 1969, both noted in the opinion of the
Chief Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v.
Green 3 9 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." 4 0 For
him, the judiciary "ought not to enter this political thicket." Baker has since then been
followed; it has spawned a host of cases. 4 1 Powell, on the question of the power of a
legislative body to exclude from its ranks a person whose quali cations 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, 4 2 It does look then that even in the
United States, the plea for judicial self-restraint, even if given voice by those competent in
the eld of constitutional law, has fallen on deaf ears. There is in the comments of
respondents an excerpt from Professor Freund quoting from one of his essays appearing
in a volume published in 1968. It is not without interest to note that in another paper, also
included therein, he was less than assertive about the necessity for self-restraint and
apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a
responsibility to maintain the constitutional order, the distribution of public power, and the
limitations on that power." 4 3 As for Professor Bickel, it has been said that as counsel for
the New York Times in the famous Vietnam papers case, 4 4 he was less than insistent on
the American Supreme Court exercising judicial self restraint. There are signs that the
contending forces on such question, for some an unequal contest, are now quiescent. The
fervor that characterized the expression of their respective points of view appears to have
been minimized. Not that it is to be expected that it will entirely disappear, considering
how dearly cherished are, for each group, the convictions, prejudices one might even say,
entertained. At least what once was tly 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. 4 5
It has brought forth a plethora of law review articles, the reaction ranging from guarded
conformity to caustic criticism. 4 6 There was, to be sure, no clear call to a court in effect
abandoning the responsibility incumbent on it to keep governmental agencies within
constitutional channels. The matter has been put in temperate terms by Professor Frank
thus: "When allowance has been made for all these factors, it nevertheless seems to me
that the doctrine of political questions ought to be very sharply con ned to cases where
the functional reasons justify it and that in a given case involving its expansion there should
be careful consideration also of the social considerations which may militate against it.
The doctrine has a certain specious charm because of its nice intellectualism and because
of the ne 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." 4 7
It is dif cult, for me at least, not to be swayed by such appraisal, coming from such
impeccable sources of the worth and signi cance of judicial review in the United States. I
cannot resist the conclusion then that the views advanced on this subject by distinguished
counsel for petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at the van,
rather than the advocacy of the Solicitor-General, possess the greater weight and carry
persuasion. So much then for the invocation of the political question principle as a bar to
the exercise of our jurisdiction.
3.That brings me to the issue of the validity of the rati cation. The crucial point that had to
be met is whether Proclamation No. 1102 manifests delity 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, 4 8 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 con dently 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, 4 9
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 ful lled. No evasion is to be tolerated.
Submission to its commands can be shown only if each and every word is given meaning
rather than ignored or disregarded. This is not to deny that a recognition of the conclusive
effect attached to the electorate manifesting its will to vote af rmatively on the
amendments proposed poses an obstacle to the judiciary being insistent on the utmost
regularity. Brie y stated, substantial compliance is enough. A great many American State
decisions may be cited in support of such a doctrine. 5 0
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 rst Commonwealth Act, 5 1 submitting to the Filipino people for approval or
disapproval certain amendments to the original ordinance appended to the 1935
Constitution, it was made clear that the election for such purpose was to "be conducted in
conformity with the provisions of the Election Code insofar as the same may be
applicable." 5 2 Then came the statute, 5 3 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, 5 4 reducing the term of the President to four years but
allowing his re-election with the limitation that he cannot serve for more than eight
consecutive years, 5 5 and creating an independent Commission on Elections. 5 6 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." 5 7 The approval
of the present parity amendment was by virtue of a Republic Act 5 8 which speci cally
made applicable the then Election Code. 5 9 There is a similar provision in the legislation, 6 0
which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an
increase in the membership of the House of Representatives to a maximum of one
hundred eighty and assured the eligibility of senators and representatives to become
members of such constituent body without forfeiting their seats, as proposed
amendments to be voted on in the 1967 elections. 6 1 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 rati cation. On two
vital points, who can vote and how they register their will, Article XV had been given a
de nitive construction. That is why I fail to see suf cient justi cation for this Court af xing
the imprimatur of its approval on the mode employed for the rati cation 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 rati cation of the
new Constitution, if it be accepted by the people, in whom sovereignty resides according
to the Constitution, 6 2 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." 6 3 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." 6 4 From them, as Corwin did stress, emanate "the highest possible embodiment
of human will," 6 5 which is supreme and must be obeyed. To avoid any confusion and in the
interest of clarity, it should be expressed in the manner ordained by law. Even if such were
not the case, however, once it is manifested, it is to be accepted as nal and authoritative.
The government which is merely an agency to register its commands has no choice but to
submit. Its of cials must act accordingly. No agency is exempt from such a duty, not even
this Court. In that sense, the lack of regularity in the method employed to register its
wishes is not fatal in its consequences. Once the fact of acceptance by the people of a
new fundamental law is made evident, the judiciary is left with no choice but to accord it
recognition. The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not
controlling, they are not entirely bereft of persuasive signi cance. In Miller v. Johnson, 6 6
decided in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3, 1890,
an act was passed in Kentucky, providing for the calling of a convention for the purpose of
framing a new constitution and the election of delegates. It provided that before any form
of constitution made by them should become operative, it should be submitted to the
voters of the state and rati ed by a majority of those voting. The constitution then in force
authorized the legislature, the preliminary steps having been taken, to call a convention "for
the purpose of readopting, amending, or changing" it but contained no provision giving the
legislature the power to require a submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it completed a draft of a constitution,
submitted it to a popular vote, and then adjourned until September following. Its work was
approved by a majority. When the convention reassembled, the delegates made numerous
changes in the instrument. As thus amended, it was promulgated by the convention of
September 28, 1891, as the new constitution. An action was brought to challenge its
validity. It failed in the lower court. In af rming 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." 6 7 In Taylor v. Commonwealth, 6 8 a 1903 decision, it was
contended that the Virginia Constitution proclaimed in 1902 is invalid as it was ordained
and promulgated by the convention without being submitted for rati cation 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 delity to it and
proclaiming it, as directed thereby; by the Legislature in its formal of cial act adopting a
joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention
which assembled in the city of Richmond on the 12th day of June, 1901, as the
Constitution of Virginia; by the individual oaths of its members to support it, and by
enforcing its provisions; and by the people in their primary capacity by peacefully
accepting it and quiescing 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 of cers 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 dif culty 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." 6 9
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 fteen were given the opportunity to vote to be deplored. The
greater the base of mass participation, the more there is fealty to the democratic concept.
It does logically follow likewise that all such circumstances being conceded, then no
justiciable question may be raised. This Court is to respect what had thus received the
people's sanction. That is not for me though the whole of it. Further scrutiny even then is
not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to
whether such indeed was the result. This is no more than what the courts do in election
cases. There are other factors to bear in mind. The fact that the President so certi ed is
well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace
and stability. There thus appears to be conformity to the existing order of things. The daily
course of events yields such a conclusion. What is more, the of cials under the 1935
Constitution, including practically all Representatives and a majority of the Senators, have
signi ed their assent to it. The thought persists, however, that as yet suf cient time has
not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for such
ascertainment of popular will did take place during a period of martial law. It would have
been different had there been that freedom of debate with the least interference, thus
allowing a free market of ideas. If it were thus, it could be truly said that there was no
barrier to liberty of choice. It would be a clear-cut decision either way. One could be certain
as to the fact of the acceptance of the new or of adherence to the old. This is not to deny
that votes are cast by individuals with their personal concerns uppermost in mind, worried
about their immediate needs and captive to their existing moods. That is inherent in any
human institution, much more so in a democratic polity. Nor is it open to any valid
objection because in the nal analysis the state exists for the individuals who in their
collectivity compose it. Whatever be their views, they are entitled to respect. It is dif cult
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 nd myself unable to join the ranks of my
esteemed brethren who vote for the dismissal of these petitions. I cannot yield an
af rmative response to the plea of respondents to consider the matter closed, the
proceedings terminated once and for all. It is not an easy decision to reach. It has
occasioned deep thought and considerable soul-searching. For there are countervailing
considerations that exert a compulsion not easy to resist. It can be asserted with truth,
especially in the eld of social and economic rights, that with the revised Constitution,
there is an auspicious beginning for further progress. Then too it could resolve what
appeared to be the deepening contradictions of political life, reducing at times
governmental authority to near impotence and imparting a sense of disillusionment in
democratic processes. It is not too much to say therefore that there had indeed been the
revision of a fundamental law to vitalize the very values out of which democracy grows. It
is one which has all the earmarks of being responsive to the dominant needs of the times.
It represents an outlook cognizant of the tensions of a turbulent era that is the present.
That is why for some what was done represented an act of courage and faith, coupled with
the hope that the solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a
majority, there is not, while these lawsuits are being further considered, the least
interference with the executive department. The President in the discharge of all his
functions is entitled to obedience. He remains the commander-in-chief with all the
constitutional power it implies. Public of cials can go about their accustomed tasks in
accordance with the revised Constitution. They can pursue the even tenor of their ways.
They are free to act according to its tenets. That was so these past few weeks, even after
that petitions were led. There was not at any time any thought of any restraining order. So
it was before. That is how things are expected to remain even if the motions to dismiss
were not granted. It might be asked though, suppose the petition should prevail? What
then? Even so, the decision of this Court need not be executory right away. Such a
disposition of a cast before this Court is not novel. That was how it was done in the
Emergency Powers Act controversy. 7 0 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 re nements unrelated to events. That may be so, but I nd it
impossible to transcend what for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound to apply with undeviating
rigidity doctrines which may have served their day. He could at times even look upon them
as mere scribblings in the sands to be washed away by the advancing tides of the present.
The introduction of novel concepts may be carried only so far though. As Cardozo put the
matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of
goodness. He is to draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy, disciplined by system, and
subordinated to 'the primordial necessity of order in the social life.' Wide enough in all
conscience is the eld of discretion that remains." 7 1 Moreover what made it dif cult 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
rati cation. If a period of time were allowed to elapse precisely to enable the judicial
power to be exercised, no complication would have arisen. Likewise, had there been only
one or two amendments, no such problem would be before us. That is why I do not see
sufficient justification for the orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it ought to have
been and the process of reasoning not without its shortcomings, the basic premises of a
constitutional democracy, as I understand them and as set forth in the preceding pages,
compel me to vote the way I did.
TEEHANKEE , J., dissenting :
The masterly opinion of the Chief Justice wherein he painstakingly deals with the
momentous issues of the cases at bar in all their complexity commands my concurrence.
I would herein make an exposition of the fundamental reasons and considerations for my
stand.
The unprecedented and precedent-setting issue submitted by petitioners for the Court's
resolution is the validity and constitutionality of Presidential Proclamation No. 1102 issued
on January 17, 1973, certifying and proclaiming that the Constitution proposed by the
1971 Constitutional Convention "has been rati ed 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 speci cally, the issue submitted is whether the purported rati cation 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 rati cation of the proposed
Constitution as signed on November 30, 1972 by the 1971 Constitutional Convention may
be said also to have substantially complied with its own mandate that "(T)his Constitution
shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and except as herein provided, shall supersede the
Constitution of Nineteen hundred and thirty-five and all amendments thereto." 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 rati cation "
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 nally that Article XV of the 1935 Constitution was not strictly
followed, the rati cation 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 rati cation is Article XV of the 1935
Constitution. This has been consistently held by the Court in the Gonzales: 5
and Tolentino 6 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 rati ed in only one way, that is,
in an election or plebiscite held in accordance with law and participated in
only by quali ed and duly registered voters" 9 and under the supervision of
the Commission on Elections. 1 0

— Hence, if the Court declares Proclamation 1102 null and void
because on its face, the purported rati cation 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 he "invalidating" the proposed new Constitution but would be simply
declaring that the announced fact of rati cation 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 rati cation, they cannot
assume the very fact to be established and beg the issue by citing the self-
same declaration as proof of the purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was
enforced as having immediately taken effect upon the issuance on January 17, 1973 of
Proclamation 1102 and the question of whether "confusion and disorder in government
affairs would (not) result" from a judicial declaration of nullity of the purported rati cation
is raised by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers
cases, 1 1 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, nally
declared in effect that the pre-war emergency powers delegated by Congress to the
President, under Commonwealth Act 671 in pursuance of Article VI, section 26 of the
Constitution, had ceased and became inoperative at the latest in May, 1946 when
Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights that
had arisen under executive orders "issued in good faith and with the best of intentions by
three successive Presidents, and some of them may have already produced extensive
effects on the life of the nation" — in the same manner as may have arisen under the bona
de acts of the President now in the honest belief that the 1972 Constitution had been
validly rati ed 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 he borne in
mind that these executive orders had been issued in good faith and with the best
of intentions by three successive Presidents, and some of them may have already
produced extensive effects in the life of the nation. We have, for instance,
Executive Order No. 73, issued on November 12, 1945, appropriating the sum of
P6,750,000 for public works; Executive Order No. 86, issued on January 7, 1946,
amending a previous order regarding the organization of the Supreme Court;
Executive Order No. 89, issued on January 1, 1946, reorganizing the Courts of
First Instance; Executive Order No. 184, issued on November 19, 1948, controlling
rice and palay to combat hunger; and other executive orders appropriating funds
for other purposes. The consequences of a blanket nulli cation 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 rati ed 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 of cers; acts and contracts of parties acting in good faith; etc. It is my
opinion that each executive order must be viewed in the light of its peculiar
circumstances, and , if necessary and possible, before nullifying it, precautionary
measures should be taken to avoid harm to public interest and innocent parties."
12
Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta
and Guerrero petitions holding null and void the executive orders on rentals and export
control but to defer judgment on the Rodriguez and Barredo petitions for judicial
declarations of nullity of the executive orders appropriating the 1949-1950 scal year
budget for the government and P6 million for the holding of the 1949 national elections.
After rehearing, he further voted to also declare null and void the last two executive orders
appropriating funds for the 1949 budget and elections, completing the "suf cient majority"
of six against four dissenting justices "to pronounce a valid judgment on that matter." 1 3
Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote
for annulment despite the great dif culties and possible "harmful consequences" in the
following passage, which bears re-reading:
"However, now that the holding of a special session of Congress for the purpose
of remedying the nullity of the executive orders in question appears remote and
uncertain, I am compelled to, and do hereby, give my unquali ed 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
inde nite deferment will produce the opposite result because it would legitimize a
prolonged or permanent evasion of our organic law. Executive orders which are, in
our opinion, repugnant to the Constitution, would be given permanent life, opening
the way or practices which may undermine our constitutional structure.
"The harmful consequences which, as I envisioned in my concurring opinion,
would come to pass should the said executive orders by immediately declared
null and void are still real. They have not disappeared by reason of the fact that a
special session of Congress is not now forthcoming. However, the remedy now
lies in the hands of the Chief Executive and of Congress, for the Constitution vests
in the former the power to call a special session should the need for one arise,
and in the latter, the power to pass a valid appropriations act.
"That Congress may again fail to pass a valid appropriation act is a remote
possibility, for under the circumstances is fully realizes its great responsibility of
saving the nation from breaking down; and furthermore, the President in the
exercise of his constitutional powers may, if he so desires, compel Congress to
remain in special session till it approves the legislative measures most needed by
the country.
"Democracy is on trial in the Philippines, and surely it will emerge victorious as a

permanent way of life in this country, if each of the great branches of the
Government, within its own allocated sphere, complies with its own constitutional
duty, uncompromisingly and regardless of difficulties.
"Our Republic is still young, and the vital principles underlying its organic structure
should be maintained rm 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 and discharge the responsibilities
committed to them respectively.'" 1 5
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 nal 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 suf ce 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." 1 6
Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi
held that the questions of whether the submission of the proposed constitutional
amendment of the State Constitution providing for an elective, instead of an appointive,
judiciary and whether the proposition was in fact adopted, were justiciable and not political
questions, we may echo the words therein of Chief Justice Whit eld 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 dif cult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged.'" 1 7
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 rm 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 of cial agencies, but their own hands as
well" 1 8 in the exercise of their sovereign will or a liberal and exible stand that would
consider compliance with the constitutional article on the amending process as merely
directory rather than mandatory.
The rst choice of a strict stand, as applied to the cases at bar, signi es 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", 1 9 participated in only by qualified and duly registered voters twenty-one years
of age or over 2 0 and duly supervised by the Commission on Elections, 2 1 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", 2 2 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", 2 3 and that the Comelec is constitutionally
"mandated to oversee . . . elections (of public officers) and not plebiscites." 2 4
To paraphrase U.S. Chief Justice John Marshall who rst declared in the historic 1803
case of Marbury vs. Madison 2 5 the U.S. Supreme Court's power of judicial review and to
declare void laws repugnant to the Constitution, there is no middle ground between these
two alternatives. As Marshall expounded it: "(T)he Constitution is either a superior
paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative
acts, and, like other acts, is alterable when the legislature shall please to alter it. If the
former part of the alternative be true, then a legislative act, contrary to the Constitution, is
not law; if the latter part be true, then written constitutions are absurd attempts on the part
of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936
landmark case of Angara vs. Electoral Commission, 2 6 "(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 de nition 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 con icting 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 2 7 the "climactic phrase," 2 8 "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." 2 9 This enduring concept to my mind permeated 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." 3 0
This Court therein made its unequivocal choice of strictly requiring faithful (which really
includes substantial) compliance with the mandatory requirements of the amending
process.
1.In denying reconsideration of our judgment of October 16, 1971 prohibiting the
submittal in an advance election of the 1971 Constitutional Convention's Organic
Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lowering
the voting age to 18 years (vice 21 years) 3 1
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 of cers 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, futurea n d 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 handwork 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 in the people themselves, in regard to the process of their amendment.
And when such limitations or conditions are so incorporated in the original
constitution, it does not lie in the delegates of any subsequent convention to
claim that they may ignore and disregard such conditions because they are as
powerful and omnipotent as their original counterparts." 3 2
3.This Court in Tolentino likewise formally adopted the doctrine of proper submission rst
advanced in Gonzales vs. Comelec 3 3 , thus:
"We are certain no one can deny that in order that a plebiscite for the rati cation
of an amendment to the Constitution may be validly held, it must provide the
voter not only suf cient time but ample basis for an intelligent appraisal of the
nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the context of the
present state of things, where the Convention has hardly started considering the
merits of hundreds, if not thousands, proposals to amend the existing
Constitution, to present to the people any single proposal or a few of them cannot
comply with this requirement. We are of the opinion that the present Constitution
does not contemplate in Section 1 of Article XV a plebiscite or election' wherein
the people are in the dark as to frame of reference they can base their judgment
on. We reject the rationalization that the present Constitution is a possible frame
of reference, for the simple reason that intervenors themselves are stating the sole
purpose of the proposed amendment is to enable the eighteen year olds to take
part in the election for the rati cation 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.'" 3 4
4.Four other members of the Court 3 5 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 consent or rejection" as "minimum requirement that
must be met in order that there can be a proper submission to the people of a proposed
constitutional amendment" thus:
". . . amendments must be fairly laid before the people for their blessing or
spurning. The people are not to be mere rubber stamps. They are not to vote
blindly. They must be afforded ample opportunity to mull over the original
provisions, compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious in uences. 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 rati cation,
should put every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of rati cation 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" 3 6
They stressed further the need for undivided attention, suf cient 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 rst place? Why
should the new voting age be precisely 18 years, and not 19 or 20? And why not
17? Or even 16 or 15? Is the 18- year old as mature as the 21-year old so that
there is no need of an educational quali cation to entitle him to vote? In this age
of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so
well? If the proposed amendment is voted down by the people, will the
Constitutional Convention insist on the said amendment? Why is there an
unseemly haste on the part of the Constitutional Convention in having this
particular proposed amendment rati ed at this particular time? Do some of the
members of the Convention have future political plans which they want to begin
to subserve by the approval this year of this amendment? If this amendment is
approved, does it thereby mean that the 18-year old should not also shoulder the
moral and legal responsibilities of the 21-year old? Will he be required to render
compulsory military service under the colors? Will the age of contractual consent
be reduced to 18 years? If I vote against this amendment, will I not be unfair to my
own child who will be 18 years old, come 1973?
"The above are just samplings from here, there and everywhere — from a domain
(of searching questions) the bounds of which are not immediately ascertainable.
Surely, many more questions can be added to the already long litany. And the
answers cannot be had except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
"Scanning the contemporary scene, we say that the people are not, and by
election time will not be, sufficiently informed of the meaning, nature and effects
of the proposed constitutional amendment. They have not been afforded ample
time to deliberate thereon conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of the merits and demerits
of the proposed amendment by their traditional pervasive involvement in local
elections and politics. They cannot thus weigh in tranquility the need for and the
wisdom of the proposed amendment." 3 7
5.This Court therein dismissed the plea of disregarding the mandatory requirements of the
amending process "in favor of allowing the sovereign people to express their decision on
the proposed amendments" as "anachronistic in the realm of constitutionalism and
repugnant to the essence of the rule of law," in the following terms:
". . . The preamble of the Constitution says that the Constitution has been
ordained by the 'Filipino people, imploring the aid of Divine Providence.' Section 1
of Article XV is nothing more than a part of the Constitution thus ordained by the
people. Hence, in construing said section, We must read it as if the people had
said, 'This Constitution may be amended, but it is our will that the amendment
must be proposed and submitted to Us for rati cation 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
rati cation or rejection conform with the mandate of the people themselves in
such regard, as expressed in the Constitution itself." 3 8
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 of cial 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." 3 9
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 rati cation or
rejection . . . Then, too, the submission to a plebiscite of a partial amendment,
without a de nite frame of reference , is fraught with possibilities which may
jeopardize the social fabric. For one thing, it opens the door to wild speculations.
It offers ample opportunities for overzealous leaders and members of opposing
political camps to unduly exaggerate the pros and cons of the partial amendment
proposed. In short, it is apt to breed false hopes and create wrong impressions. As
a consequence, it is bound to unduly strain the people's faith in the soundness
and validity of democratic processes and institutions."
— On the plea to allow submission to the sovereign people of the "fragmentary
and incomplete" proposal, although inconsistent with the letter and spirit of the
Constitution: "The view, has, also, been advanced that the foregoing
considerations are not decisive on the issue before Us, inasmuch as the people
are sovereign, and the partial amendment involved in this case is being submitted
to them. The issue before Us is whether or not said partial amendment may be
validly submitted to the people for rati cation 'in a plebiscite to coincide with the
local elections in November 1971,' and this particular issue will not be submitted
to the people. What is more, the Constitution does not permit its submission to the
people. The question sought to be settled in the scheduled plebiscite is whether or
not the people are in favor of the reduction of the voting age."
— On a "political" rather than "legalistic" approach: "Is this approach to the

problem too 'legalistic? This term has several possible connotations. It may mean
strict adherence to the law, which in the case at bar is the Supreme Law of the
land. On this point, suf ce it to say that, in compliance with the speci c mandate
of such Supreme Law, the members of the Supreme Court have taken the
requisite 'oath to support and defend the Constitution.' . . . Then, again, the term
'legalistic' may be used to suggest inversely that the somewhat strained
interpretation of the Constitution being urged upon this Court be tolerated or, at
least, overlooked, upon the theory that the partial amendment on the voting age is
badly needed and re ects the will of the people, specially the youth. This course
of action favors, in effect, the adoption of a political approach, inasmuch as the
advisability of the amendment and an appraisal of the people's feeling thereon
are political matters. In fact, apart from the obvious message of the mass media,
and, at times, of the pulpit, the Court has been literally bombarded with scores of
handwritten letters, almost all of which bear the penmanship and the signature of
girls, as well as the letterhead of some secretarian educational institutions,
generally stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has been brought to bear
heavily upon the Court for a reconsideration of its decision in the case at bar.
"As above stated, however, the wisdom of the amendment and the popularity
thereof are political questions beyond our province. In fact, respondents and the
intervenors originally maintained that We have no jurisdiction to entertain the
petition herein, upon the ground that the issue therein raised is a political one.
Aside from the absence of authority to pass upon political question, it is
obviously improper and unwise for the bench to delve into such questions owing
to the danger 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 Constitution called upon to draft it would he 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 con rmed 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 ward 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 parties on the highest
level. In any event, qualities, political approach, political expediency and
statesmanship are generally associated, and often identi ed, with the dictum that
'the end justi es the means.' I earnestly hope that the administration of justice in
this country and the Supreme Court, in particular, will never adhere to or approve
or indorse such dictum." 4 0
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 rati cation of the new
Constitution in 1972' so as 'to allow young people who would be governed by the new
Constitution to be given a say on what kind of Constitution they will have' is a laudable
end, . . . those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and nal draft of the new
Constitution must seek a valid solution to achieve it in a manner sanctioned by the
amendatory process ordained by our people in the present Constitution" 4 1 — so that
there may be "submitted, not piece- meal, but by way of complete and nal
amendments as an integrated whole (integrated either with the subsisting Constitution
or with the new proposed Constitution) . . ."
9.The universal validity of the vital constitutional precepts and principles above-enunciated
can hardly be gainsaid. I fail to see the attempted distinction of restricting their application
to proposals for amendments of particular provisions of the Constitution and not to so-
called entirely new Constitutions. Amendments to an existing Constitution presumably
may be only of certain parts or in toto, and in the latter case would give rise to an entirely
new Constitution. Where this Court held in Tolentino that "any amendment of the
Constitution is of no less importance than the whole Constitution itself and perforce must
be conceived and prepared with as much care and deliberation' it would appeal that the
reverse would equally be true; which is to say, that the adoption of a whole new
Constitution would be of no less importance than any particular amendment and therefore
the necessary care and deliberation as well as the mandatory restrictions and safeguards
in the amending process ordained by the people themselves so that "they (may) be
insulated against precipitate and hasty actions motivated by more or less passing political
moods or fancies" must necessarily equally apply thereto.
III
1.To restate the basic premises, the people provided in Article XV of the Constitution for
the amending process only "by approval by a majority of the votes cast at an election at
which the (duly proposed) amendments are submitted to the people for their ratification"
The people ordained in Article V, section 1 that only those thereby enfranchised and
granted the right of suffrage may speak the "will of the body politic", viz, quali ed 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 satis ed, 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. 4 2
2.A Massachussets case 4 3 with a constitutional system and provisions analogous to
ours, best de ned the uses of the term " people" as a body politic and " people" in the
political sense who are synonymous with the quali ed 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
signi cations dependent upon the connection in which it is used. In some connections in
the Constitution it is con ned to citizens and means the same as citizens. It excludes
aliens. It includes men, women, and children. It comprehends not only the sane, competent,
law-abiding and educated, but also those who are wholly or in part dependents and
charges upon society by reason of immaturity, mental or moral de ciency or lack of the
common essentials of education. All these persons are secured by the fundamental
guarantees of the Constitution in life, liberty, and property and the pursuit of happiness,
except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals" governed
by a constitution and common laws in a "social compact . . . for the common good" and in
another sense of "people" in a "practical sense" for "political purposes" it was therein
ttingly stated that "(I)n this sense, 'people' comprises many who, by reason of want of
years, of capacity or of the educational requirements of Article 20 of the amendments of
the Constitution, can have no voice in government and who yet are entitled to all the
immunities and protection established by the Constitution. 'People' in this aspect is
coextensive with the body politic. But it is obvious that 'people' cannot be used with this
broad meaning in a political signification. The 'people' in this connection means that part of
the entire body of inhabitants who under the Constitution are intrusted with the exercise of
the sovereign power and the conduct of government. The 'people' in the Constitution in a
practical sense means those who under the existing Constitution possess the right to
exercise the elective franchise and who, while that instrument remains in force unchanged,
will be the sole organs through which the will of the body politic can be expressed. 'People'
for political purposes must be considered synonymous with qualified voters.'"
As was also ruled by the U.S. Supreme Court, ". . . While the people are thus the source of
political power, their governments, national and state, have been limited by written
constitutions, and they have themselves thereby set bounds to their own power, as against
the sudden impulse of mere majorities." 4 4
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 rati cation", it seems obvious as above-stated that "
people" as therein used must be considered synonymous with "quali ed 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 4 5 the Revised Barrio Charter xes 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
quorom, 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." 4 6
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly
registered barrio assembly members quali ed 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." 4 7
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be
called to decide on the recall of any member of the barrio council. A plebiscite shall be
called to approve any budgetary, supplemental appropriations or special tax ordinances"
and the required majority vote is also speci ed: "(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." 4 8
The quali cations for voters in such barrio plebiscites and elections of barrio of cials 4 9
comply with the suffrage quali cations of Article V, section 1 of the Constitution and
provide that "(S)EC. 10. Quali cations of Voters and Candidates. — Every citizen of the
Philippines, twenty one years of age or over, able to read and write, who has been a
resident of the barrio during the six months immediately preceding the election, duly
registered in the list of voters kept by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections." 5 0
IV
1.Since it appears on the face of Proclamation 1102 that the mandatory requirements
under the above-cited constitutional articles have not been complied with and that no
election or plebiscite for rati cation as therein provided as well as in section 16 of Article
XVII of the proposed Constitution itself 5 1 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
certi cates of results purportedly showing unaccountable discrepancies in seven gures
in just ve provinces 5 2 between the reports as certi ed 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 nal and complete or as not
sig ned; 5 3 whether the reported votes of approval of the proposed Constitution
conditioned upon the non-convening of the interim National Assembly provided in Article
XVII, section 1 thereof, 5 4 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 rati ed only in the particular mode or manner prescribed therein by the
people. Under Article XV, section 1 of our Constitution, amendments thereto may be
rati ed 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 quali ed and duly registered voters. In this manner, the safeguards
provided by the election code generally assure the true ascertainment of the results of the
vote and interested parties would have an opportunity to thresh out properly before the
Comelec all such questions in pre-proclamation proceedings.
4.At any rate, unless respondents seriously intend to question the very statements and
pronouncements in Proclamation 1102 itself which shows on its face, as already stated,
that the mandatory amending process required by the (1935) Constitution was not
observed, the cases at bar need not reach the stage of answering the host of questions,
raised by petitioners against the procedure observed by the Citizens Assemblies and the
reported referendum results — since the purported rati cation 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" 5 5 under Resolution No. 5844 approved on
November 22, 1973, and "as agent of the Convention the President could devise other
forms of plebiscite to determine the will of the majority vis-a-vis the rati cation of the
proposed Constitution." 5 6
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
rati cation 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 rati cation 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 nal 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
"12.2Interpellating, 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 rati ed 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
"12.4Interpellating, Delegate Madarang suggested that a reasonable period for an
information campaign was necessary in order to properly apprise the people of
the implications and signi cance of the new charter. Delegate Duavit agreed,
adding that this was precisely why the resolution was modi ed to give the
President the discretion to choose the most appropriate date for the plebiscite.
"12.5Delegate Laggui asked whether a formal communication to the President
informing him of the adoption of the new Constitution would not suf ce
considering that under Section 15 of the Transitory Provisions, the President
would be duty-bound to call a plebiscite forits rati cation. 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.
"12.6In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for
the holding of the plebiscite would he laid down by the Commission on Elections,
in coordination with the President.
"12.7Delegate 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.
"12.8Delegate 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.
1.8aDelegate Guzman withdrew his motion.
"12.9Delegate Astilla suggested in his interpellation that there was actually no
need for such a resolution in view of the provision of section 15, Article XVII on
the Transitory Provisions. Delegate Duavit disagreed, pointing out that the said
provision did not provide for the funds necessary for the purpose.

"13.Delegate Ozamiz moved to close the debate and proceed to the period of
amendment.
"13.1Floor Leader Montejo stated that there were no reservations to amend the
resolution.
"13.2Delegate 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." 5 7
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the
petitions.
Promulgated: June 4, 1973 *
ANTONIO , J.:
In conformity with my reservation, I shall discuss the grounds for my concurrence.

I
It is my view that to preserve the independence of the State, the maintenance of the
existing constitutional order and the defense of the political and social liberties of the
people, in times of a grave emergency, when the legislative branch of the government is
unable to function or its functioning would itself threaten the public safety, the Chief
Executive may promulgate measures legislative in character, for the successful
prosecution of such objectives. For the "President's power as Commander-in-chief has
been transformed from a simple power of military command to a vast reservoir of
indeterminate powers in time of emergency . . . In other words, the principal canons of
constitutional interpretation are . . . set aside so far as concerns both the scope of the
national power and the capacity of the President to gather unto himself all constitutionally
available powers in order the more effectively to focus them upon the task of the hour."
(Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
1.The proclamation of martial rule, ushered the commencement of a crisis government in
this country. In terms of power, crisis government in a constitutional democracy entails the
concentration of governmental power. "The more complete the separation of powers in a
constitutional system, the more dif cult, and yet the more necessary" according to
Rossiter, "will be their fusion in time of crisis . . . The power of the state in crisis must not
only be concentrated and expanded, it must be freed from the normal system of
constitutional and legal limitations. One of the basic features of emergency powers is the
release of the government from the paralysis of constitutional restraints" (Rossiter,
Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the government is
channeled through the person of the Chief Executive. "Energy in the executive", according
to Hamilton, "is essential to the protection of the community against foreign attacks . . . to
the protection of property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of liberty against the
enterprises and assaults of ambition, of faction, and of anarchy." (The Federalist, Number
70). "The entire strength of the nation", said Justice Brewer in the Debts ease (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 de nition 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 speci c grant of
power under the "Commander- in-Chief" clause of the constitution. The contours of such
powers have been shaped more by a long line of historical precedents of Presidential
action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers
under the "commander-in- chief" clause with his duty "to take care that the laws be
faithfully executed", to justify the series of extraordinary measures which he took — the
calling of volunteers for military service, the augmentation of the regular army and navy, the
payment of two million dollars from unappropriated funds in the Treasury to persons
unauthorized to receive it, the closing of the Post Of ce 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 justi ed 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 inde nite scope and legislative in
effect in meeting the domestic aspects of a war emergency." (Corwin, The President:
Of ce & 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 inde nite 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 rst and second World Wars. From its narrow concept
as an "emergency" in time of war during the Civil War and World War I, the concept has
been expanded in World War II to include the "emergency" preceding the war and even after
it. "The Second World War" observed Corwin and Koenig, was the First World War writ
large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in
wartime" . . . burgeoned correspondingly. The precedents were there to be sure, most of
them from the First World War, but they proliferated amazingly. What is more, Roosevelt
took his rst step toward war some fteen months before our entrance into shooting war.
This step occurred in September, 1940, when he handed over fty so-called overage
destroyers to Great Britain. The truth is, they were not overage, but had been recently
reconditioned and recommissioned . . . Actually, what President Roosevelt did was to take
over for the nonce Congress's power to dispose of property of the United States (Article
IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency Today,
New York University Press, 1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public of ces is a power con ded by the constitution to Congress. And yet
President Wilson, during World War I on the basis of his powers under the "Commander-in-
Chief" clause created "of ces" which were copied in lavish scale by President Roosevelt in
World War II. In April 1942, thirty- ve "executive agencies" were purely of Presidential
creation. On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he issued
an executive order seizing the North American Aviation plant of Inglewood, California,
where production stopped as a consequence of a strike. This was justi ed 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 justi cation other plants and industries were taken over
by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72
3. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain
the claims that the President could, as the Nation's Chief Executive and as Commander- in-
Chief of the armed forces, validly order the seizure of most of the country's steel mills. The
Court however did not face the naked question of the President's power to seize steel
plants in the absence of any congressional enactment or expressions of policy. The
majority of the Court found that this legislative occupation of the eld made untenable the
President's claim of authority to seize the plants as an exercise of inherent executive
power or as Commander-in-Chief Justice Clerk in his concurrence to the main opinion of
the Court, explicitly asserted that the President does possess, in the absence of restrictive
legislation, a residual or resultant power above or in consequence of his granted powers,
to deal with emergencies that he regards as threatening the national security. The same
view was shared with vague quali cations 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 ll needed gaps in the law, or even to supersede it so far as may be
requisite to realize the fundamental law of native and government, namely, that as much as
may be all the members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore,
that the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102, since these measures were considered indispensable to effect the
desired reforms at the shortest time possible and hasten the restoration of normalcy? It is
unavailing for petitioners to contend that we are not faced by an actual "shooting war" for
today's concept of the emergency which justi ed 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 justi cation of 'emergency.' In the nal result the
constitutional practices of wartime have moulded the Constitution to greater or less
extent for peacetime as well, and seem likely to do so still more pronouncedly under fresh
conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
"The second crisis is rebellion, when the authority of a constitutional government
is resisted openly by large numbers of its citizens who are engaged in violent
insurrection against the enforcement of its laws or are bent on capturing it
illegally or even destroying it altogether. The third crisis, one recognized
particularly in modern times as sanctioning emergency action by constitutional
governments, is economic depression. The economic troubles which plagued all
the countries of the world in the early thirties invoked governmental methods of
an unquestionably dictatorial character in many democracies. It was thereby
acknowledged that an economic existence as a war or a rebellion. And these are
not the only crisis which have justi ed extraordinary governmental action in
nations like the United States. Fire, ood, drought, earthquake, riots, and great
strikes have all been dealt with by unusual and often dictatorial methods. Wars
are not won by debating societies, rebellions are not suppressed by judicial
injunctions, the reemployment of twelve million jobless citizens will not be
effected through a scrupulous regard for the tenets of free enterprise, and
hardships caused by the eruptions of nature cannot be mitigated by letting nature
take its course. The Civil War, the depression of 1933, and the recent global
con ict were not and could not have been successfully resolved by governments
similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge."
(Rossiter, Constitutional Dictatorship — Crisis of Government in the Modern
Democracies, p. 6 [1948;).
II
We are next confronted with the insistence of Petitioners that the referendum in question
not having been done in accordance with the provisions of existing election laws, where
only quali ed voters are allowed to participate, under the supervision of the Commission
on Elections, the new Constitution, should therefore be declared a nullity. Such an
argument is predicated upon an assumption that Article XV of the 1935 Constitution
provides the method for the revision of the constitution, and automatically apply in the
approval of such proposed new Constitution the provisions of the election law and those
of Article V and X of the old Constitution. We search in vain for any provision in the old
charter speci cally 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 speci c 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 conditions 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 nal 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 1936 Constitution does not speci cally provide for the method or procedure for
the revision or for the approval of a new constitution, should it now be held that the people
have placed such restrictions on themselves that they are now disabled from exercising
their right as the ultimate source of political power from changing the old constitution
which, in their view, was not responsive to their needs and in adopting a new charter of
government to enable them to rid themselves from the shackles of traditional norms and
to pursue with a new dynamism the realization of their true longings and aspirations,
except in the manner and form provided by Congress for previous plebiscites? Was not the
expansion of the base of political participation, by the inclusion of the youth in the process
of rati cation who after all constitute the preponderant majority more in accord with the
spirit and philosophy of the constitution that political power is inherent in the people
collectively? As clearly expounded by Justice Makasiar in his opinion, in all the cases cited
where the Court held that the submission of the proposed amendment was illegal due to
the absence of substantial compliance with the procedure prescribed by the Constitution,
the procedure prescribed by the state Constitution, is so detailed, that it speci ed the
manner in which such submission shall be made, the persons quali ed to vote for the
same, the date of election and other de nite standards, from which the court could safely
ascertain whether or not the submission was in accordance with the Constitution. Thus the
case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions
involved the application of the provisions of the state Constitution of Minnesota which
clearly prescribed in detail the procedure under which the Constitution may be amended or
revised. 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 rati cation of the proposed
new Constitution. The adoption of the new Charter was considered as a necessary basis
for all the reforms set in motion under the new society, to root out the causes of unrest.
The imperatives of the emergency underscored the urgency of its adoption. The people in
accepting such procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, rati ed the method and procedure taken. "When the people
adopt a completely revised or new constitution," said the Court in Wheeler v. Board of
Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not
what gives it binding force and effect. The at of the people, and only the at 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 bene t.
Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty resides in
the people and all government authority emanates from them." Evidently the term people
refers to the entire citizenry and not merely to the electorate, for the latter is only a fraction
of the people and is only an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an entire
Constitution that is already effective as it has been accepted and acquiesced in by the
people as shown by their compliance with the decree promulgated thereunder, their
cooperation in its implementation, and is now maintained by the Government that is in
undisputed authority and dominance?
Of course it is argued that acquiescence by the people cannot be deduced from their acts
of conformity, because under a regime of martial law the people are hound to obey and act
in conformity with the orders of the President, and have absolutely no other choice. The
aw 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
ounders 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 of cials. 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 rearms,
paid their taxes on undeclared goods and income in unprecedented numbers and amount,
lent their labors in massive cooperation — in land reform, in the repair of dikes, irrigation
ditches, roads and bridges, in reforestation, in the physical transformation of the
environment to make ours a cleaner and greener land. "The entire country is turning into
one vast garden growing food for the body, for thought and for the soul." * More important
the common man has at long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure of the
Philippines" reported Frank Valeo to the United States Senate. "President Marcos has been
prompt and sure- footed in using the power of presidential decree under martial law for
this purpose. He has zeroed in on areas which have been widely recognized as prime
sources of the nation's dif culties — land tenancy, of cial corruption, tax evasion and
abuse of oligarchic economic power. Clearly he knows his targets . . . there is marked
public support for his leadership . . ." (Bulletin Today, March 3 and 4, 1973).
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of
The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the
failure of legislators to approve urgently needed reforms. He found his second
term further frustrated by spreading riots, a Maoist uprising in Luzon and a much
more serious Moslem insurrection in the southern islands from Mindanao across
the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila
claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no promise
as to when he will relinquish them. But, while fettering a free press, terminating
Congress and locking up some opponents (many of whom were later amnestied),
he has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land are
redistributed with state funds. New roads have been started. The educational
system is undergoing revision, and corruption is diminished. In non-communist
Asia it is virtually impossible to wholly end it and this disagreeable phenomenon
still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an
agrarian middle-class to replace the archaic sharecropper-absentee landlord
relationship. He is even pushing a birth control program with the tacit acceptance
of the Catholic Church. He has started labor reforms and increased wages." (Daily
Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and
"Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are
by and large applied and obeyed. As soon as the old Constitution loses its effectiveness
and the new Constitution has become effective, the acts that appear with the subjective
meaning of creating or applying legal norms are no longer interpreted by presupposing the
old basic norm, but by presupposing the new one. The statutes issued under the old
Constitution and not taken over are no longer regarded as valid, and the organs authorized
by the old Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by understanding
that in the nal 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 rati cation,
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 af rms 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 dif culty 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 so-called political
departments of government or has reserved to be settled by its own extra governmental
action." 7
The non-judicial character of such a question has been recognized in American law. "From
its earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his
illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633, 722, 726, 727), "a class
of controversies which do not lend themselves to judicial standards and judicial remedies.
To classify the various instances as 'political questions' is rather a form of stating this
conclusion than revealing of analysis . . . The crux of the matter is that courts are not t
instruments of decision where what is essentially at stake is the composition of those
large contests of policy traditionally fought out in non-judicial forums, by which
governments and the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases
at bar, cannot be a case of "right" or "wrong" views of the Constitution. It is one of attitudes
and values. For there is scarcely any principle, authority or interpretation which has not
been countered by the opposite. At bottom it is the degree of one's faith — in the nation's
leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these ve cases, and the conclusion of this
Court in its judgment of March 31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR
AMENDMENT AND REVISION@

1.Alaska (1959) — Art. XIII.Amendment and Revision.
Sec. 1.Amendments.Amendments to this constitution may be proposed by a two-thirds
vote of each house of the legislature. The secretary of state shall prepare a ballot title and
proposition summarizing each proposed amendment, and shall place them on the ballot
for the next statewide election. If a majority of the votes cast on the proposition favor the
amendment, it shall be adopted. Unless otherwise provided in the amendment, it becomes
effective thirty days after the certification of the election returns by the secretary of state.
Sec. 2.Convention.The legislature may call constitutional conventions at any time.

Sec. 3.Call by referendum.If during any ten-year period a constitutional convention has not
been held, the secretary of state shall place on the ballot for the next general election the
question: "Shall there be a Constitutional Convention?" If a majority of the votes cast on the
question are in the negative, the question need not be placed on the ballot until the end of
the next ten-year period. If a majority of the votes cast on the question are in the
af rmative, delegates to the convention shall be chosen at the next regular statewide
election, unless the legislature provides for the election of the delegates at a special
election. The secretary of state shall issue the call for the convention. Unless other
provisions have been made by law, the call shall conform as nearly as possible to the act
calling the Alaska Constitutional Convention of 1955, including, but not limited to, number
of members, districts, election and certi cation 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 rati cation by the people. No call for a constitutional
convention shall limit these powers of the convention.
2.California (1879) — Art. XVIII.Amending and Revising the Constitution.
Sec. 1.Constitutional amendments.Any amendment or amendments to this Constitution
may be proposed in the Senate or Assembly, and if two-thirds of all the members elected
to each of the two houses shall vote in favor thereof, such proposed amendment or
amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it
shall be the duty of the Legislature to submit such proposed amendment or amendments
to the people in such manner, and at such time, and after such publication as may be
deemed expedient. Should more amendments than one be submitted at the same election
they shall be so prepared and distinguished, by numbers or otherwise, that each can be
voted on separately. If the people shall approve and ratify such amendment or
amendments, or any of them, by a majority of the quali ed electors voting thereon such
amendment or amendments shall become a part of this constitution.
Sec. 2.Constitutional convention.Whenever two-thirds of the members elected to each
branch of the Legislature shall deem it necessary to revise this Constitution, they shall
recommend to the electors to vote at the next general election for or against a Convention
for that purpose, and if a majority of the electors voting at such election on the proposition
for a Convention shall vote in favor thereof, the Legislature shall, at its next session,
provide by law for calling the same. The Convention shall consist of a number of delegates
not to exceed that of both branches of the Legislature, who shall be chosen in the same
manner, and have the same quali cations, 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
rati cation 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 certi ed to the
Executive of the State, who shall call to his assistance the Controller, Treasurer, and
Secretary of State, and compare the returns so certi ed to him; and it shall be the duty of
the Executive to declare, by his proclamation, such Constitution, as may have been rati ed
by a majority of all the votes cast at such special election, to be the Constitution of the
State of California.
2.Colorado (1876) — Art. XIX.Amendments.
Sec. 1.Constitutional convention; how called.The general assembly may at any time by a
vote of two-thirds of the members elected to each house, recommend to the electors of
the state, to vote at the next general election for or against a convention to revise, alter and
amend this constitution; and if a majority of those voting on the question shall declare in
favor of such convention, the general assembly shall, at the next session, provide for the
calling thereof. The number of members of the convention shall be twice that of the senate
and they shall be elected in the same manner, at the same places, and in the same
districts. The general assembly shall, in the act calling the convention, designate the day,
hour and place of its meeting; x the pay of its members and of cers, 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 quali cations of members shall be the same as of members of the
senate; and vacancies occurring shall be lled in the manner provided for lling 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 rati cation or
rejection at an election appointed by the convention for that purpose, not less than two nor
more than six months after adjournment thereof; and unless so submitted and approved
by a majority of the electors voting at the election, no such revision, alteration or
amendment shall take effect.
Sec. 2.Amendments to constitution; how adopted.Any amendment or amendments to this
constitution may be proposed in either house of the general assembly, and if the same
shall be voted for by two-thirds of all the members elected to each house, such proposed
amendment or amendments, together with the ayes and noes of each house hereon, shall
be entered in full on their respective journals; the proposed amendment or amendments
shall be published with the laws of that session of the general assembly, and the secretary
of state shall also cause the said amendment or amendments to be published in full in not
more than one newspaper of general circulation in each county, for four successive weeks
previous to the next general election for members of the general assembly; and at said
election the said amendment or amendments shall be submitted to the quali ed electors
of the state for their approval or rejection, and such as are approved by a majority of those
voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of
said amendments shall be voted upon separately and votes thereon cast shall be
separately counted the same as though but one amendment was submitted. But the
general assembly shall have no power to propose amendments to more than six articles of
this constitution at the same session.
4.Delaware (1897) — Art. XVI.Amendments and Conventions.
Sec. 1.Proposal of constitutional amendments in general assembly; procedure.Any
amendment or amendments to this Constitution may be proposed in the Senate or House
of Representatives; and if the same shall be agreed to by two-thirds of all the members
elected to each House, such proposed amendment or amendments shall be entered on
their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause
such proposed amendment or amendments to be published three months before the next
general election in at least three newspapers in each County in which such newspapers
shall be published; and if in the General Assembly next after the said election such
proposed amendment or amendments shall upon yea and nay vote be agreed to by two-
thirds of all the members elected to each House, the same shall thereupon become part of
the Constitution.
Sec. 2.Constitutional conventions; procedure; compensation of delegates; quorum;
powers and duties; vacancies.The General Assembly by a two thirds vote of all the
members elected to each House may from time to time provide for the submission to the
quali ed electors of the State at the general election next thereafter the question, "Shall
there be a Convention to revise the Constitution and amend the same?; and upon such
submission, if a majority of those voting on said question shall decide in favor of a
Convention for such purpose, the General Assembly at its next session shall provide for
the election of delegates to such convention at the next general election. Such Convention
shall be composed of forty-one delegates, one of whom shall be chosen from each
Representative District by the quali ed electors thereof, and two of whom shall be chosen
from New Castle County, two from Kent County and two from Sussex County by the
quali ed electors thereof respectively. The delegates so chosen shall convene at the
Capital of the State on the rst Tuesday in September next after their election. Every
delegate shall receive for his services such compensation as shall be provided by law. A
majority of the Convention shall constitute a quorum for the transaction of business. The
Convention shall have power to appoint such of cers, employees and assistants 'as it may
deem necessary, and x 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 quali cations of its members.
Whenever there shall be a vacancy in the of ce of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to
ll such vacancy shall be issued by the Governor, and such vacancy shall be lled 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 three- fths 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 this Constitution. If a majority of the
electors voting upon the amendment adopt such amendment the same shall become a
part of this Constitution.
Sec. 2.Method of revising constitution.If at any time the Legislature, by a vote of two-thirds
of all the members of both Houses, shall determine that a revision of this Constitution is
necessary, such determination shall be entered upon their respective Journals, with yea's
and nay's thereon. Notice of said action shall be published weekly in one newspaper in
every county in which a newspaper is published, for three months preceding the next
general election of Representatives, and in those counties where no newspaper is
published, notice shall be given by posting at the several polling precincts in such counties
for six weeks next preceding said election. The electors at said election may vote for or
against the revision in question. If a majority of the electors so voting be in favor of
revision, the Legislature chosen at such election shall provide by law for a Convention to
revise the Constitution, said Convention to be held within six months after the passage of
such law. The Convention shall consist of a number equal to the membership of the House
of Representatives, and shall be apportioned among the several counties in the same
manner as members of said House.
6.Idaho (1890) — Art. XX.Amendments.
Sec. 1:How amendments may be proposed.Any amendment or amendments to this
Constitution may be proposed in either branch of the legislature, and if the same shall be
agreed to by two-thirds of all the members of each of the two houses, voting separately,
such proposed amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to submit such
amendment or amendments to the electors of the state at the next general election, and
cause the same to be published without delay for at least six consecutive weeks, prior to
said election, in not less that one newspaper of general circulation published in each
county; and if a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
Sec. 3.Revision or amendment by convention.Whenever two-thirds of the members elected
to each branch of the legislature shall deem it necessary to call a convention to revise or
amend this Constitution, they shall recommend to the electors to vote at the next general
election, for or against a convention, and if a majority of all the electors voting at said
election shall have voted for a convention, the legislature shall at the next session provide
by law for calling the same; and such convention shall consist of a number of members,
not less than double the number of the most numerous branch of the legislature.
7.Iowa (1857) — Art. X.Amendments to the Constitution.
Sec 3.Convention.At the general election to be held in the year one thousand eight hundred
and seventy, and in each tenth year thereafter, and also at such times as the General
Assembly may, by law, provide, the question, "Shall there be a Convention to revise the
Constitution, and amend the same?" shall be decided by the electors quali ed to vote for
members of the General Assembly; and in case a majority of the electors so quali ed,
voting at such election, for and against such proposition, shall decide in favor of a
Convention for such purpose, the General Assembly, at its next session, shall provide by
law for the election of delegates to such Convention.
8.Michigan (1909) — Art. XVII.Amendment and Revision.
Sec. 1.Amendment to constitution; proposal by legislature; submission to electors.Any
amendment or amendments to this constitution may be proposed in the senate or house
of representatives. If the same shall be agreed to by 2/3 of the members elected to each
house, 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 quali ed to vote for members of the legislature voting thereon shall ratify
and approve such amendment or amendments, the same shall become part of the
constitution.
Sec. 4.General revision: convention; procedure.At the Biennial Spring Election to be held in
the year 1961, in each sixteenth year thereafter and at such times as may be provided by
laws, the question of a General Revision of the Constitution shall be submitted to the
Electors qualified to vote for members of the Legislature. In case a majority of the Electors
voting on the question shall decide in favor of a Convention for such purpose, at an
Election to be held not later than four months after the Proposal shall have been certi ed
as approved, the Electors of each House of Representatives District as then organized
shall Elect One Delegate for each State Representative to which the District is entitled and
the Electors of each Senatorial District as then organized shall Elect One Delegate for each
State Senator to which the District is entitled. The Delegates so elected shall convene at
the Capital City on the First Tuesday in October next succeeding such election, and shall
continue their sessions until the business of the convention shall be completed. A majority
of the delegates elected shall constitute a quorum for the transaction of business . . . No
proposed constitution or amendment adopted by such convention shall be submitted to
the electors for approval as hereinafter provided unless by the assent of a majority of all
the delegates elected to the convention, the yeas and nays being entered on the journal.
Any proposed constitution or amendments adopted by such convention shall be
submitted to the qualified electors in the manner provided by such convention on the rst
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 nal adjournment and the date of such
election, then it shall be submitted at the next general election. Upon the approval of such
constitution or amendments by a majority of the quali ed electors voting thereon such
constitution or amendments shall take effect on the rst day of January following the
approval thereof.
9.Minnesota (1867) — Art. XIV.Amendments to the Constitution.
Sec. 1.Amendments to constitution; majority vote of electors voting makes amendment
valid.Whenever a majority of both houses of the legislature shall deem it necessary to alter
or amend this Constitution, they may propose such alterations or amendments, which
proposed amendments shall be published with the laws which have been passed at the
same session, and said amendments shall be submitted to the people for their approval or
rejection at any general election, and if it shall appear, in a manner to be provided by law,
that a majority of all the electors voting at said election shall have voted for and rati ed
such alterations or amendments, the same shall be valid to all intents and purposes as a
part of this Constitution. If two or more alterations or amendments shall be submitted at
the same time, it shall be so regulated that the voters shall vote for or against each
separately.
Sec. 2.Revision of constitution.Whenever two-thirds of the members elected to each
branch of the legislature shall think it necessary to call a convention to revise this
Constitution, they shall recommend to the electors to vote at the next general election for
members of the legislature, for or against a convention; and if a majority of all the electors
voting at said election shall have voted for a convention, the legislature shall, at their next
session, provide by law for calling the same. The convention shall consist of as many
members as the House of Representatives, who shall be chosen in the same manner, and
shall meet within three months after their election for the purpose aforesaid.
Sec. 3.Submission to people of revised constitution drafted at convention.Any convention
called to revise this constitution shall submit any revision thereof by said convention to the
people of the State of Minnesota for their approval or rejection at the next general election
held not less than 90 days after the adoption of such revision, and, if it shall appear in the
manner provided by law that three- fths of all the electors voting on the question shall
have voted for and rati ed such revision, the same shall constitute a new constitution of
the State of Minnesota. Without such submission and rati cation, 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 quali ed
to vote for members of the Legislature voting thereon, such amendment or amendments
shall become a part of the Constitution.
Sec. 2.Convention for revision of constitution; procedure.If at any time the Legislature by a
vote of two-thirds of the Members elected to each house, shall determine that it is
necessary to cause a revision of this entire Constitution they shall recommend to the
electors at the next election for Members of the Legislature, to vote for or against a
convention, and if it shall appear that a majority of the electors voting at such election,
shall have voted in favor of calling a Convention, the Legislature shall, at its next session
provide by law for calling a Convention to be holden within six months after the passage of
such law, and such Convention shall consist of a number of Members not less than that of
both branches of the Legislature. In determining what is a majority of the electors voting at
such election, reference shall be had to the highest number of votes cast at such election
for the candidates for any office or on any question.
11.New Hampshire (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 rst 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 quali ed 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 quali ed voters present as to the necessity of a
revision; and a return of the number of votes for and against such necessity, shall be made
by the clerk sealed up, and directed to the general court at their then next session; and if, it
shall appear to the general court by such return, that the sense of the people of the state
has been taken, and that, in the opinion of the majority of the quali ed 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 quali ed voters present and
voting on the subject.
12.Oklahoma (1907) — Art. XXIV.Constitutional Amendments.
Sec. 1.Amendments proposed by legislature; submission to vote.A n y amendment or
amendments to this Constitution may he proposed in either branch of the Legislature, and
if the same shall be agreed to by a majority of all the members elected to each of the two
houses, such proposed amendment or amendments shall, with the yeas and nays thereon,
he entered in their journals and referred by the Secretary of State to the people for their
approval or rejection, at the next regular general election, except when the Legislature, by a
two-thirds vote of each house, shall order a special election for that purpose. If a majority
of all the electors voting at such election shall vote in favor of any amendment thereto, it
shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such manner that
electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted to the
voters shall embrace more than one general subject and the voters shall vote separately
for or against each proposal submitted; provided, however, that in the submission of
proposals for the amendment of this Constitution by articles, which embrace one general
subject, each proposed article shall be deemed a single proposals or proposition.
Sec. 2.Constitutional convention to propose amendments or new constitution.No
convention shall be called by the Legislature to propose alterations, revisions, or
amendments to this Constitution, or to propose a new Constitution, unless the law
providing for such convention shall rst be approved by the people on a referendum vote
at a regular or special election, and any amendments, alterations, revisions, or new
Constitution, proposed by such convention, shall be submitted to the electors of the State
at a general or special election and be approved by a majority of the electors voting
thereon, before the same shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at least once in every twenty years.
13.Oregon (1859) — Art. XVII.Amendments and Revisions.
Sec. 1.Method of amending constitution.Any amendment or amendments to this
Constitution may be proposed in either branch of the legislative assembly, and if the same
shall be agreed to by a majority of all the members elected to each of the two houses,
such proposed amendment or amendments shall, with the yeas and nays thereon, be
entered in their journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular general election, except when the legislative
assembly shall order a special election for that purpose. If a majority of the electors voting
on any such amendment shall vote in favor thereof, it shall thereby become a part of this
Constitution. The votes for and against such amendment, or amendments, severally,
whether proposed by the legislative assembly or by initiative petition, shall be canvassed
by the secretary of state in the presence of the governor, and if it shall appear to the
governor that the majority of the votes cast at said election on said amendment, or
amendments, severally, are cast in favor thereof, it shall be his duty forthwith after such
canvass, by his proclamation, to declare the said amendment, or amendments, severally,
having received said majority of votes to have been adopted by the people of Oregon as
part of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more amendments shall be
submitted in the manner aforesaid to the voters of this state at the same election, they
shall be so submitted that each amendment shall be voted on separately. No convention
shall be called to amend or propose amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention shall rst be approved by the
people on a referendum vote at a regular general election. This article shall not be
construed to impair the right of the people to amend this Constitution by vote upon an
initiative petition therefor.
Sec. 2.Method of revising constitution.(1) In addition to the power to amend this
Constitution granted by section 1, Article IV, and section 1 of this Article, a revision of all or
part of this Constitution may be proposed in either house of the Legislative Assembly and,
if the proposed revision is agreed to by at least two- thirds of all the members of each
house, the proposed revision shall, with the yeas and nays thereon, be entered in their
journals and referred by the Secretary of State to the people for their approval or rejection,
notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide
primary election, except when the Legislative Assembly orders a special election for that
purpose. A proposed revision may deal with more than one subject and shall be voted
upon as one question. The votes for and against the proposed revision shall be canvassed
by the Secretary of State in the presence of the Governor and, if it appears to the Governor
that the majority of the votes cast in the election on the proposed revision are in favor of
the proposed revision, he shall, promptly following the canvass, declare, by his
proclamation, that the proposed revision has received a majority of votes and has been
adopted by the people as the Constitution of the State of Oregon or as a part of the
Constitution of the State of Oregon, as the case may be. The revision shall be in effect as
the Constitution or as a part of this Constitution from the date of such proclamation.
14.Utah (1896) — Art. 23.Amendments.
Sec. 1.Amendments; method of proposal and approval.Any amendment or amendments to
this Constitution may be proposed in either house of the Legislature, and if two-thirds of all
the members elected to each of the two houses, shall vote in favor thereof, such proposed
amendment or amendments shall be entered on their respective journals with the yeas and
nays taken thereon; and the Legislature shall cause the same to be published in at least
one newspaper in every county of the State, where a newspaper is published, for two
months immediately preceding the next general election, at which time the said
amendment or amendments shall be submitted to the electors of the State, for their
approval or rejection, and if a majority of the electors voting thereon shall approve the
same, such amendment or amendments shall become part of this Constitution. If two or
more amendments are proposed, they shall be so submitted as to enable the electors to
vote on each of them separately.
Sec. 2.Revision of the constitution by convention.Whenever two- thirds of the members,

elected to each branch of the Legislature, shall deem it necessary to call a convention to
revise or amend this Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and, if a majority of all the electors, voting at
such election, shall vote for a convention, The Legislature, at its next session, shall provide
by law for calling the same. The convention shall consist of not less than the number of
members in both branches of the Legislature.
15.Wyoming (1890) — Art. XX.Amendments.
Sec. 1.Procedure for amendments.Any amendment or amendments to this constitution
may be proposed in either branch of the legislature, and, if the same shall be agreed to by
two-thirds of all the members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be entered on their
journals, and it shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, and cause the same
to be published without delay for at least twelve (12) consecutive weeks, prior to said
election, in at least one newspaper of general circulation, published in each county, and if a
majority of the electors shall ratify the same, such amendment or amendments shall
become a part of this constitution.
Sec. 2.How voted for.If two or more amendments are proposed, they shall be submitted in
such manner that the electors shall vote for or against each of them separately.
Sec. 3.Constitutional convention; provision for. Whenever two- thirds of the members
elected to each branch of the legislature shall deem it necessary to call a convention to
revise or amend this constitution, they shall recommend to the electors to vote at the next
general election for or against a convention, and if a majority of all the electors voting at
such election shall have voted for a convention, the legislature shall at the next session
provide by law for calling the same; and such convention shall consist of a number of
members, not less than double that of the most numerous branch of the legislature.
Sec. 4.New constitution.Any constitution adopted by such convention shall have no validity
until it has been submitted to and adopted by the people.
Footnotes
1.Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.

2.Chief Justice Concepcion and Justices Fernando and Teehankee.
3.Justice Zaldivar.
4.Case G.R. No. L-36164.
5.Case G.R. No. L-36236.

6.Case G.R. No. L-36283.
7.Who withdrew as petitioner on January 25, 1973.
8.Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now, after the withdrawal
of the latter, the first two (2) only.
9.Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.

10.Napoleon V. Dilag, et al. v. Executive Secretary, et al.
11.Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on Elections,
L-28196 & L-28224, Nov. 9, 1967. Italics ours.
12.Art. VI, sec. 20(1), Constitution.
13.Art. VII, sec. 10(7), Constitution.

14.Italics ours.
15.See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
16In 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. Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L-35573, Oct.
11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission
on Elections, L-28224, Nov. 29, 1967; Bara Lidasa v. COMELEC, L-28089, Oct. 25, 1967;
Mun. of San Juan v. NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-
19870, Mar. 18, 1967; Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine
Constitution Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v.
NAWASA, L-20232, Sept. 30, 1964; Guevarra v. Inocentes, L-25577, Mar. 15, 1966; Gillera
v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29,
1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19,
1962; La Mallorca, etc. v. Ramos, et al., l-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-
15254, Sept. 16, 1961; Macias v. Commission on Elections, L-18684, Sept. 14, 1961;
Philippine Tobacco Flue-During & Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31,
1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, 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., L-14759, July 31, 1961;
Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura v. Regional
Of ce No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L-15693,
July 31, 1961; Pascual v. Sec. of Public Works and Communications, L-10405, Dec. 29,
1960; Corminas, Jr. v. Labor Standards Commission, L-14837, June 30, 1961; City of
Bagiuo v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, 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. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and L-35979, decided on January 22, 1973.
19.L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965, Rogelio
V. Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo David v. Gen.
Eduardo Garcia, et al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L-
34004, Domingo E. de Lara v. Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo
Rimando v. Brig. Gen. Eduardo M. Garcia; L-34039, Carlos C. Rabago v. Brig. Gen.
Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr. v. Gen. Eduardo Garcia, et al.; and L-
34339, Gary B. Olivar, et al. v. Gen. Eduardo Garcia, et al.
20.5 Phil. 87.
21.91 Phil. 882.
22.G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
23.78 Phil. 1.
24.Supra.
25.In re McConaughy, 119 N.W. 408, 417.
26.103 Phil. 1051, 1067.
27.119 N.W. 408, 411, 417.
28.92 Ky. 589, 18 S.W. 522, 523.
29.Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tu y, 19
Nev. 391, 12 Pac. Rep. 835.
30.Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
31.12 L. ed. 581 (1849).
32.Luther v. Borden, supra, p. 598. Italics ours.
33.In re McConaughy, supra p. 416. Italics ours.
34.369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691 (March 26, 1962).
35.895 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
36.In re McConaughy, 119 N.W. 408, 415. Italics ours. The observation as to the uniformity of
authorities on the matter has been reiterated in Winget v. Holm, 244 N.W. 329, 332.
37.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 686, 82 S. Ct. 691.
38.See p. 5 of the Petition.
39.Italics ours.
40.The Framing of the Philippine Constitution, by Aruego, Vol. I, p. 215.
41.The Framing of the Philippine Constitution, by Aruego, Vol. I, pp. 215, 221, 227-228.
42.Ibid., pp. 222-224.
43.Id., pp. 224-227.
44."SEC. 431.Quali cations prescribed for voters. — Every male person who is not a citizen or
subject of a foreign power, twenty-one years of age or over, who shall have been a
resident of the Philippines for one year and of the municipality in which he shall offer to
vote for six months next preceding the day of voting is entitled to vote in all elections if
comprised within either of the following three classes:
"(a)Those who, under the laws in force in the Philippine Islands upon the twenty-eighth day of
August, nineteen hundred and sixteen, were legal voters and had exercised the right of
suffrage.
"(b)Those who own real property to the value of ve hundred pesos, declared in their name for
taxation purposes for a period of not less than one year prior to the date of the election,
or who annually pay thirty pesos or more of the established taxes.
"(c)Those who are able to read and write either Spanish, English, or a native language.
"SEC. 432.Disqualifications. — The following persons shall be disqualified from voting:
"(a)Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight, has
been sentenced by nal 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 him to the United States.
"(c)Insane or feeble-minded persons.
"(d)Deaf-mutes who cannot read and write.
"(e)Electors registered under subsection (c) of the next preceding section who, after failing to
make a sworn statement to the satisfaction of the board of inspectors at any of its two
meeting for registration and revision, that they are incapacitated for preparing their
ballots due to permanent physical disability, present themselves at the hour of voting as
incapacitated, irrespective of whether such incapacity be real or feigned."
45.L-34150, October 16 and November 4, 1971.
46."For taking action on any of the above enumerated measures, majority vote of all the barrio
assembly members registered in the list of the barrio secretary is necessary."
47."All duly registered barrio assembly members quali ed to vote may vote in the plebiscite.
Voting procedures may be made either in writing as in regular elections, and/or
declaration by the voters to the board of election tellers. The board of election tellers
shall be the same board envisioned by section 8, paragraph 2 of this Act, in case of
vacancies in this body, the barrio council may fill the same."
48.Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071;
Ellingham v. Dye (1912), 178 Ind. 236, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W.
419.
49.In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that when a state
constitution enumerates and xes the quali cations of those who may exercise the right
of suffrage, the legislature cannot take from nor add to said quali cations 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
of ce or trust, but, also, in deciding a controverted question, it follows, considering the
said ruling in Alcantara, that the constitutional quali cations 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 of cers
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.Quali cations prescribed for a voter. — Every citizen of the Philippines, not otherwise
disquali ed by law, twenty-one years of age or over, able to read and write, who shall
have resided in the Philippines for one year and in the city, municipality or municipal
district wherein he proposes to vote for at least six months immediately preceding the
election, may vote at any election.
"xxx xxx xxx"
51."SEC. 102.Disqualifications. — The following persons shall not be qualified to vote:

"(a)Any person who has been sentenced by nal 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 quali ed 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 nal judgment to suffer an
imprisonment of not less than one year.
"(b)Any person who has been adjudged by nal judgment by competent court of having
violated his allegiance to the Republic of the Philippines.
"(c)Insane or feeble-minded persons.
"(d)Persons who cannot prepare their ballots themselves."
52."SEC. 10.. . .
"The following persons shall not be qualified to vote:

"a.Any person who has been sentenced by nal judgment to suffer one year or more of
imprisonment, within two years after service of his sentence;
"b.Any person who has violated his allegiance to the Republic of the Philippines; and
"c.Insane or feeble-minded persons."

53.20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena v.
Crescini, 39 Phil. 258.
54.Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau, 64
S.w. 2d. 168, Italics ours.
55.L-33325 and L-34043, December 29, 1971.
56.Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours.
57.Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours.
58.Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.
59.Art. X, section 1 of the 1935 Constitution.

60.Ten (10) years.
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 of cer and such other subordinate of cers and
employees as may be necessary for the ef cient 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 of cer of the Commission, under the direction of the Chairman, shall have
charge of the administrative business of the Commission, shall have the power to
administer oaths in connection with all matters involving the business of the
Commission, and shall perform such other duties as may be required of him by the
Commission.
"SEC. 6.Power of the Commission to Investigate and to Hear Controversy and Issue Subpoena.
— The Commission or any of the members thereof shall, in compliance with the
requirement of due process, have the power to summon the parties to a controversy
pending before it, issue subpoenae and subpoenae duces tecum and otherwise take
testimony in any investigation or hearing pending before it, and delegate such power to
any of cer of the Commission who shall be a member of the Philippine Bar. In case of
failure of a witness to attend, the Commission, upon proof of service of the subpoenae
to said witness, may issue a warrant to arrest the witness and bring him before the
Commission or of cer before whom his attendance is required. The Commission shall
have the power to punish contempts provided for in the Rules of Court under the same
controversy submitted to the Commission shall after compliance with the requirements
of due process be heard and decided by it within thirty days after submission of the
case.
"The Commission may, when it so requires, deputize any member of any national or local law
enforcement agency and/or instrumentality of the government to execute under its direct
and immediate supervision any of its final decisions, orders, instructions or rulings.
"Any decision, order or ruling of the Commission on election controversies may be reviewed by
the Supreme Court by writ of certiorari in accordance with the Rules of Court or such
applicable laws as may be enacted.
"Any violation of any final executory decision, order or ruling of the Commission shall constitute
contempt thereof."
65.64 S.W.2d. 168.
66.L-35538, Roces, et al. v. Secretary of National Defense, et al.; L-35539, Diokno v. Hon. Enrile,
et al.; L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L-35546, Aquino, Jr.,
et al. v. Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567, Doronilla, et al.
v. Secretary of National Defense, et al.; L-35573, Rondon v. Hon. Enrile, et al.
67."PRESIDENTIAL DECREE NO. 86-A
"STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)

"WHEREAS, on the basis of preliminary and initial reports from the eld as gathered from
barangays (citizens assemblies) that have so far been established, the people would like
to decide for themselves questions or issues, both local and national, affecting their day
to day lives and their future;
"WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for
expressing the views of the people on important national issues;
"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and
due recognition as constituting the genuine, legitimate and valid expression of the
popular will; and
"WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum
on certain speci ed questions such as the rati cation of the new Constitution,
continuance of martial law, the convening of Congress on January 22, 1973, and the
elections in November 1973 pursuant to the 1935 Constitution.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution as Commander-in-Chief of all Armed Forces of
the Philippines, do hereby declare as part of the law of the land the following:
"1.The present barangays (citizens assemblies) are created under Presidential Decree No. 86
dated December 31, 1973, shall constitute the base for citizen participation in
governmental affairs and their collective views shall be considered in the formulation of
national policies or programs and, wherever practicable, shall be translated into concrete
and specific decision;
"2.Such barangays (citizens assemblies) shall consider vital national issues now confronting
the country, like the holding of the plebiscite on the new Constitution, the continuation of
martial rule, the convening of Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future, which shall serve as guide or basis
for action or decision by the national government;
"3.The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those speci ed in paragraph 2
hereof, and submit the results thereof to the Department of Local Governments and
Community Development immediately thereafter, pursuant to the express will of the
people as re ected in the reports gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
"4.This Decree shall take effect immediately.
"Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred
and seventy-three." (Italics ours.)
68.McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, 304. Italics ours.
69.Art. VII, section 2, 1935 Constitution.
70.Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. Sathre v. Bryne,
258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 P 2d.
1022; McKim v. Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v.
Pigg, 46 N.E. 2d. 232.
71.See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588; State
ex rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election
Board, 431 P. 2d. 352; Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State
ex rel. Mitchell v. Walcott, 83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board
of Elections of Stark County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v.
Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W.
1013; Hagan v. Henry, 76 S.W. 2d. 994.
72.106 Minn 392, 119 N.W. 408, 409.

73.63 N.J. Law, 289, cited in In re McConaughy, supra.
74.78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.
75.See cases listed on pages 105-106, footnotes 56, 57 and 58.
76.On December 19, 1972.
77.24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223, 228; Harris v.
Shanahan, 387 P. 2d. 771, 784, 785.
78.369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S. 543, 547, 548,
68 L. ed. 841, 843, 44 S. Ct. 405.
79.Art. VII, section 10, paragraph (1).

80.101 Va. 529, 44 S.E. 754.
81.Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62 C.J.S. 749-750;
Guevara v. Inocentes, L-25577, March 15, 1966.
82.Which, in some respects, is regarded as an organ of the Administration, and the news items
published therein are indisputably censored by the Department of Public Information.
83.Daily Express, November 29, 1972, p. 4. Italics ours.
84.231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
85.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.
86.Justice Barredo's opinion in the plebiscite cases.

87.Joint Opinion of Justices Makalintal and Castro, p. 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.
*The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, led 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 9135 Constitution, reducing the voting age from
21 to 18, but the submission of which to a plebiscite was declared invalid by this Court
in Tolentino vs. COMELEC, became a reality of an even more far-reaching import — since
fifteen-year 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).
1.Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad vs. Comelec,
L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-35940,
January 22, 1973; Eddie B. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973;
Sedfrey A. Ordoñez, et al., vs. The National Treasurer of the Philippines, et al., L-35942,
January 22, 1973; Vidal Tan, et al. vs. Comelec, et al., L-35948, January 22, 1973; Jose
W. Diokno, et al. vs. Comelec, L-35953, January 22, 1973; Jacinto Jimenez vs. Comelec,
et al., L-35961, January 22, 1973; Raul M. Gonzales vs. Comelec, et al., L-35965, January
22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L-35979, January 22, 1973.
2.Executive Agreements are not included in the corresponding provision of the 1935
Constitution.
3.It must be recalled that in the Tolentino case, the Constitutional Convention intended to
submit one amendment which was to form part of the Constitution still being prepared
by it separately from the rest of the other parts of such constitution still un nished, and
We held that a piece-meal submission was improper. We had no occasion to express any
view as to how a whole new Constitution may be ratified.
*In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New
York in 1824, died in 1898. Judge Cooley was also professor and later dean of the Law
Department of the University of Michigan and Justice of the State Supreme Court of
Michigan from 1864 to 1885, when he failed to win re-election to the court.
1.Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v. Commission
on Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L-
35940; Eddie B. Monteclaro v. The Commission on Elections, et al., L-35941; Sedfrey A.
Ordoñez, et al. v. The National Treasurer of the Philippines, et al., L-35942; Vidal Tan, et
al. v. Commission on Elections, et al., L-35948; Jose W. Diokno, et al. v. The Commission
on Elections, L-35953; Jacinto Jimenez v. Commission on Elections, et al., L-35961; Raul
M. Gonzales v. The Honorable Commission on Elections, et al., L-35965; Ernesto Hidalgo
v. Commission on Elections, et al., L-35979.
2.See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1951; Baker v. Carr, 369 U.S. 186 (1962).
3.See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
4.Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5.L-38196, November 9, 1967, 21 SCRA 774.
6.83 Phil. 1957.

7.McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p. 516. See
also the plebiscite cases, mentioned in footnote 1, ante.
8.Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9.39 Phil. 258, 268.
10.69 Phil. 199, 204.

11.70 Phil. 28, 31.
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-entirely-inaccurate observation: "No governmental institution that consists of a group
of legal technicians appointed for life can ever hope to cope with, much less solve, the
exigent problems of our polity." Ibid, 231. He was referring of course to the Supreme
Court of the United States.
4.Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).
5.Black, The People and the Court (1960).
6.Murphy, Elements of Judicial Strategy (1964).
7.Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103 Phil. 1051
(1957): Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.
8.Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
9.Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971. 41 SCRA 702.
10.Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
11.256 US 368 (1921).
12.Ibid, 374-375.
13.L-33964, Dec. 11, 1971, 42 SCRA 448.
14.Ibid, 504-505.
15.Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on
Constitutional Law 355, 387 (1938).
16.Ibid, 395.
17.Weston, Political Questions, I Selected Essays on 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 (1934-1935),
Appendix L, 800.
21.65 Phil. 56 (1937).
22.Ibid, 96.
23.63 Phil. 139 (1936).
24.L-35925, January 22, 1973.
25.Rostow, The Democratic Character of Judicial Review in Selected Essays on Constitutional
Law 1938 1962, 1, 2 (1963).
26.Ibid.
27.Ibid, 3.
28.Ibid, 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of
California, 342 US 165 (1952).
29.Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice
Frankfurter found in his opinion in Stein v. New York, 346 US 156 (1953).
30.Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
31.Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450 (1938).
32.1 Cranch 137 (1803).
33.Curtis, Lions Under the Throne, 12 (1947).
34.Addresses and Papers of Charles Evans Hughes, 139-140 (1908).
35.Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949).
36.Haines, Charles Grove, The Role of the Supreme Court in American Government and Politics,
1789-1835, 3 (1960).
37.369 US 186.
38.395 US 486.
39.328 US 549 (1946).
40.Ibid, 556.
41.Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. 526 (1964); Wright v. Rockefeller,
376 US 52, 11 L ed 2d 512, 84 S Ct 603 (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. 1418
(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, 12 L ed 2d 632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 US
433, 13 L ed 2d 401, 85 S Ct. 498 ( 1965); Burns v. Richardson, 384 US 73,16 L ed 2d
376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105, 18 L ed 2d
650, 87 S Ct. 1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554 (
1967).
42.77 Phil. 192 (1946).
43.Ibid, 56.
44.New York Times Company v. United States, 29 L ed. 822 (1971).
45.Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law Review 77 (1959).
It is the first essay in his Principles, Politics and Fundamental Law.
46.The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute Neutrality,
11 J. Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense of Profession,
34 Rocky Mt. L. Rev. 123, 136-46 (1962); Henkin, Some Re ections 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 Hart and Judge Arnold, 74 Harv. L. Rev. 81
(1960); Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75;
Miller and Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. Chi. L.
Rev. 661 (1960); Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev.
571 (1960); Hart, Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959);
Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108
U. Pa L. Rev. 1 (1959).
47.Cahn, Supreme Court and Supreme Law, 40 (1954).

48.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, 20 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 (1928); 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, 112 So. 718 (1927);
Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517,
283 P. 5 (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); Palmerv. Dunn, 216
SC 558, 59 SE 158 (1950).
50.Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); In re 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. Wilmett, 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. 285, 130 A. 407
(1925); Board of Liquidation of State Debt of Louisiana v. Whitney-Central Trust and
Savings Bank, 168 La. 560, 122 So. 850 (1929); State v. Cline, 118 Neb. 150, 224 NW 6
(1929); California Teacher's Ass'n. v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934); Collier v.
Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. Commission v. Smith,
335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186 SE 420 (1936);
Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937); Swanson v.
State, 132 Neb. 82, 271 NW 264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939);
Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No. 224, 197
Okl. 432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW 2d 569
(1947); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948).
51.Commonwealth Act No. 492 (1939).
52.Ibid, Section 3.
53.Commonwealth Act No. 517 (1940).
54.Article VI of the 1935 Constitution.
55.Article VII of the 1935 Constitution.
56.It is to be noted that under Commonwealth Act No. 607 (1940), subsequently amended by
Commonwealth Act No. 657 (1940), there was a statutory creation of an independent
Commission on Elections.
57.Section 3, Commonwealth Act No. 517.
58.Republic Act No. 73 (1946).
59.Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act
Numbered Three Hundred and fty-seven, otherwise known as the Election Code, and
Commonwealth Act Numbered Six Hundred and fty-seven, entitled 'An Act to
Reorganize the Commission on Elections,' is so far as they are not inconsistent herewith,
are hereby made applicable to the election provided for in this Act."
60.Republic Act 4913 (1967).
61.Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One
hundred eighty, as amended, insofar as they are not inconsistent herewith, are made
applicable to the election provided for in this Act." It is to be remembered that in the
plebiscite held, the two proposals last. Cf. on this point, Gonzales v. Commission on
Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
62.The 1935 Constitution provides. "The Philippines is a republican state. Sovereignity 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.McIver, 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; italics supplied.
2.Article XVII, section 16, proposed Constitution of Nov. 30, 1972; italics supplied.
3.All quotations from respondents' memo of arguments dated March 2, 1973, pp. 2-5; italics
supplied.
4.Respondents' memo dated March 2, 1973, p. 8; italics 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 vs. Comelec, L-34150; dated Nov. 4,
1971, at page 3, per Barredo, J. with seven Justices concurring; italics supplied.
8.Idem, at page 4, italics supplied.
9.Joint opinion of JJ. Makalintal and Castro, p. 153.
10.Article X, sec. 1 of the Constitution entrusts "exclusive charge" of the conduct of elections to
the Comelec. See also the Election Code of 1971.
11.Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez vs. Treasurer (L-
3054); Guerrero vs. Commissioner of Customs; and Barredo vs. Comelec (L-3056), jointly
decided and reported in 84 Phil. 368.
12.Idem, at pp. 384-385; italics supplied.
13.Idem, at p. 437.
14.Idem, at pp. 435-437.
15.Idem, at p. 383. Justice Tuason further duly noted that "These observations, though beyond
the issue as formulated in this decision, may, we trust, also serve to answer the
vehement plea that for the good of the Nation, the President should retain his
extraordinary powers as long as turmoil and other ills directly or indirectly traceable to
the late war harass the Philippines."
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. I, p. 221.
29.Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
30.Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per Barredo, J. at p. 8.
31.a Con-Con Res. No. 1 proposing the urgent lowering of the voting age to enfranchise the 18-
year olds retained the "permissive" language of section 1, Art. V. Thus, the proposed
amendment read: "Section 1. Suffrage may be exercised by (male) citizens of the
Philippines not otherwise disquali ed by law, who are (twenty one) EIGHTEEN years of
age or over and are able to read and write . . ."
31.Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.

32.Decision of Oct. 16, 1971, at p. 21.
33.21 SCRA 774 (Nov. 9, 1967).
34.Decision of Oct. 16, 1971, at p. 24.
35.Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.
36.Idem at pp. 1-2.
37.Idem at p. 3.
38.Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J., pp. 3-4.
39.Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
40.All quotations are from the Chief Justice's concurring opinion in Tolentino, pp. 4-7.
41.Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9, 10.
42.This Court thus declared in Tolentino the Con-Con voting age reduction resolution as null
and void and prohibited its submittal at the 1971 elections for lack of proper submission
since it did not "provide the voter . . . ample basis for an intelligent appraisal of the
amendment." Dec. of October 16, 1971, per Barredo, J.
43.In re Opinion of Justices, 115 N.E. Rep. 922-923.
44.Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
45."Barrios are units of municipalities or municipal districts in which they are situated . . ." Rep.
Act 3590, sec. 2.
46.Rep. Act 3590, sec. 6, par. 1.
47.Idem, par. 2.
48.Idem, par. 3 and 4, italics 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 disquali es persons convicted by
nal judgment to suffer one year or more of imprisonment "within two years after
service" or who have violated their allegiance to the Republic and insane or feeble-
minded persons.
51.Supra p. 2.
52.Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners' manifestation and
supplemental rejoinder dated March 21, 1973 in L-36165.
53.Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated March 29, 1973.
54.Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen million nine
hundred seventy six thousand ve hundred sixty one (14,976,561) members of all the
Barangays voted for the adoption of the proposed Constitution, as against seven
hundred forty- three thousand eight hundred sixty nine (743,869) who voted for its
rejection; but a majority of those who approved the new Constitution conditioned their
votes on the demand that the interim National Assembly provided in its Transitory
Provisions should not be convened."
55.Respondents' memo dated March 2, 1973, supra, p. 2.
56.As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did not
look on the same with favor, since the "constitutional point (that the Comelec has
exclusive charge of the conduct of elections and plebiscites) seems to have been
overlooked in the Assemblies."
57.Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate Sedfrey A.
Ordoñez et al. in the plebiscite case L-35942, par. 12 of petition and admitted in par. 4 of
answer of therein respondents dated Dec. 15, 1972.
*First decision promulgated by First Division of the Supreme Court.
1."When a house is completely demolished and another is erected on the same location, do you
have a changed, repaired and altered house, or do you have a new house? Some of the
material contained in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have altogether another or
a new house. We conclude that the instrument as contained in Ga. L. 1945, pp. 8 to 89,
inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a
completely revised or new constitution." (Wheeler v. Board of Trustees, 37 S.E. 2d 322,
327).
"Every proposal which affects a change in a Constitution or adds or takes away from it is an
"amendment", while a "revision" implies a re-examination and statement of the
Constitution, or some part of it, in a corrected or improved form:" (Const. Secs. 196, 197,
Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va. 613).
"Amendment" and "revision" of constitution are separate procedures each having a substantial
eld of application, not mere alternative procedures in the same eld." (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 signi cant,
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 of judicial
power as such to determine the fact of its occurrence. If the revolutionary constitution
sets up a court differently constituted from the pre-revolutionary court, neither tribunal is
confronted with a substantial problem, for neither can deny the act by which it was
created without denying the fact of its creation. Thus the Supreme Court in Luther v.
Borden (supra) uses language substantially parallel with what has been indicated above
as the logical explanation of the Duke of York's case. For the court to give serious
judicial consideration to such a question would present 'the singular spectacle of a court
sitting a a court to declare that we are not a court.' (Brittle v. People, 2 Neb. 198, 214
[1873].) And even if the alleged new constitution purports to leave intact the former court
and to permit its work to go on without hiatus, the decision which the judges must make
is still an individual choice to be made by them as a matter of practical politics. Two
commissions are being held out to them, and if they will act as a court they must assert
under which commission they are acting. To put the matter in another way, it must be
true that in the rst case above — of two constitutions purporting to establish two
different courts, — the men who were judges under the old regime and the men who are
called to be judges under the new have each to decide as individuals what they are to do;
and it may be that they choose at grave peril with the factional outcome still uncertain.
And, although it is not equally obvious, the situation is logically identical where the same
men are nominated to constitute the court under both the old and the new constitution,
at a time when the alleged change is occurring — if it is — peaceably and against a
placid popular background. Men under such circumstances may write most
praiseworthily upon principles of statesmanship, upon sovereignty and its nature and
modes of action, and upon the bases of government, to justify their choice between the
two commissions. They can assert their choice in the course of purported judicial action.
But they cannot decide as a court, for the decision, once made, by a retroactive
hypothesis excludes any assumption of controversiality in the premises."
"Where the alleged change occurs not through revolutionary measures but through what has
been called revision, these logical dif culties disappear in one aspect, but become far
more embarrassing in another. Where the alteration purports to be made along the lines
of a procedural method laid down in the old constitution, there is a standard which the
court can apply and, by so doing, it can perceive judicially whether or not the change has
followed the prescribed lines. If it has, there is no dif culty in pronouncing as a matter of
law its accomplishment. Only one exception is possible, namely, the case where the
alteration purports at once to abolish the court or to depose its personnel. Then,
although there would be a question of law to be decided, it may be wondered who there
is to decide it. Suppose, however, the mode of change has failed in some way to
conform to a directory provision of the amending clause of the constitution; is the court
to declare the attempt at alteration unsuccessful? It would seem as a matter of law that
it must do so; and yet what is the situation if the proponents of the change say, 'It is true
that this measure failed under the amending clause, but as a revolutionary measure it
was a success and we insist upon its recognition.' Clearly the members of the court are
now more badly than ever entangled in the logical dif culties which attend a purported
judicial pronouncement upon the achievement or non-achievement of revolutionary
change. For the temptation will be great to treat the matter as a legal question. The times
are peaceful. The changes probably do no affect the tenure of many of ces 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 eld 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 dif culty 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. In such a context,
such a question becomes wholly moot except for this consideration, that, when the
judges as individuals or as a body of individuals come to decide which king or which
constitution they will support and assert to represent, it may often be good judgment for
them to follow the lead of the men who as a practical matter are likely to be looked to by
the people as more representative of themselves and conversely are likely to be more
directly in touch with popular sentiment. If, however, the judges hold too strong views of
their own to be able to take this course, they may follow their own leads at their own
hazards. No question of law is involved." (Political Questions, 38 Harvard Law Review
[1924-25], pp. 305-309.)
6.Ibid. pp. 301, 305.
7.Ibid. pp. 301, 305.
@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.

Javellana v. Executive Secretary

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Javellana v. Executive Secretary

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EN BANC

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

JOSUE JAVELLANA , petitioner, vs . THE EXECUTIVE SECRETARY, THE

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

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL

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

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,

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

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

[G.R. No. L-36283. March 31, 1973.]

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO

Ramon A. Gonzales for petitioner Josue Javellana.

Background of the Plebiscite Cases

"[1]The New Society;

"[3]The holding of a plebiscite on proposed new Constitution and

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

"[3]Do you think that Congress should meet again in regular

"[4]Do you like the plebiscite to be held later?

"[3]Do you want a plebiscite to be called to ratify the new

"[4]Do you want the elections to be held in November, 1973 in

In order to broaden the base of citizen participation in government.

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

The vote of the Citizens Assemblies should already be considered the

If the Citizens Assemblies approve of the Constitution, then the new

The vote of the Citizens Assemblies should be considered the

in relation to the question following it: —

"In support of this prayer, it was alleged —

'Provincial governors and city and municipal

[a]The herein petitioners have prayed in their petition for

"(a)Direct and immediate supervision and control over

[a]After the result of the supposed voting on the

'WHEREAS, responding to the clamor of the people and pursuant to

(Sgd.) FERDINAND E. MARCOS

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CD Technologies Asia, Inc. © 2016 cdasiaonline.com

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

"xxx xxx xxx

"xxx xxx xxx" 3 9

a.Who may vote in a plebiscite under Art. V of the Constitution?

". . . In simple words, we would de ne a 'vote cast' as the exercise on a ballot of

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

"[2]Do you like the reforms under martial law?

"xxx xxx xxx

". . . As to our people, in general, their enthusiastic participation showed their

MAKALINTAL and CASTRO , JJ.:

(2)Article XVII, Section 16, of the draft itself states:

"(2)Do you approve of the new Constitution?

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

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In the report of an interview granted by the President to the Newsweek Magazine

"xxx xxx xxx"

As far as I am concerned, I regard the present petitions as no more than mere

2.Such barangays (citizens assemblies) shall consider vital national

but on January 11, 1973, six questions were added as follows:

If the Citizens Assemblies approve of the new Constitution, then the

The development culminated in the issuance by the President of Proclamation 1102 on

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CD Technologies Asia, Inc. © 2016 cdasiaonline.com

CD Technologies Asia, Inc. © 2016 cdasiaonline.com

CD Technologies Asia, Inc. © 2016 cdasiaonline.com