JOSUE JAVELLANA vs. THE EXECUTIVE SECRETARY (G.R. NO. 36142.

March 31,
1973)
FACTS:

The Plebiscite Case

 On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which
was amended by Resolution No. 4, calling a Convention to propose amendments
to the Constitution of the Philippines 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 1971 Constitutional Convention approved its

Proposed Constitution of the Republic of the Philippines. The next day, President
Marcos issued Presidential Decree No. 73, “submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines
proposed by the 1971 Constitutional Convention, and appropriating funds
therefor,” as well as setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
 On December 7, 1972, Charito Planas filed a case against the Commission on
Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said
“respondents or their agents from implementing Presidential Decree No. 73, in
any manner, until further orders of the Court,” upon the grounds, inter alia, that
said Presidential Decree “has no force and effect as law because the calling of
such plebiscite, the setting of guidelines for the conduct of the same, the
prescription of the ballots to be used and the question to be answered by the
voters, and the appropriation of public funds for the purpose, are, by the
Constitution, lodged exclusively in Congress“ and “there is no proper
submission to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being no
sufficient time to inform the people of the contents thereof.”
 On December 23, the President announced the postponement of the plebiscite for
the ratification or rejection of the Proposed Constitution.
  The Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially.
 In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948
filed an “urgent motion,” praying that said case be decided “as soon as possible,
preferably not later than January 15, 1973.
 While the case was being heard, the President issued Proclamation No. 1102
entitled, “ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF
THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION”.

The Ratification Case

 On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the
Executive Secretary and the Secretaries of National Defense, Justice and Finance,
to restrain said respondents “and their subordinates or agents from
implementing any of the provisions of the propose Constitution not found in the
present Constitution” referring to that of 1935. Javellana alleged that the
President ordered “the immediate implementation of the New Constitution, thru
his Cabinet, and that the latter are acting without or in excess of jurisdiction in
implementing the said proposed Constitution. He construed that the President is
without authority to create the Citizens Assemblies; to approve the proposed
Constitution; proclaim the ratification; and that the election held to ratify the
proposed Constitution was not a free election, hence null and void.

ISSUE/S:

1. Whether the proposed Constitution by the 1971 Constitutional Convention been

ratified validly (with substantial, if not strict, compliance) conformably to the applicable
constitutional and statutory provisions?

2. Whether the aforementioned proposed Constitution has acquiesced in (with or

without valid ratification) by the people?

3. Whether the aforementioned proposed Constitution is in force?

RULING:
1. No, the new Constitution was not validly ratified as held by six (6) members of
the court. The six (6) members of the Court held that the Constitution proposed
by the 1971 Constitutional Convention was not validly ratified in accordance
with Article XV, section 1 of the 1935 Constitution, which provides only one way
for ratification, i.e., “in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters. The Court held that:

- The votes of persons less than 21 years of age render the proceedings in the
Citizen’s assemblies void. Proceedings held in such Citizen’s Assemblies
were fundamentally irregular.
- Viva voce voting for the ratification of the constitution is void. Article XV of
the 1935 Constitution envisages with the term “votes cast” choices made on
ballots – not orally or by raising hands – by the persons taking part in
plebiscites.
- The plebiscite on the constitution not having been conducted under the
supervision of COMELEC is void.

2. No majority vote has been reached by the Court.

- Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that “the people have already accepted the 1973 Constitution.”
- Two (2) members of the Court hold that there can be no free expression, and
there has even been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution
under Martial Law.
- Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question.

3. There are not enough votes to declare that the new Constitution is not 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;
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.