Digests (Mary Michelle T.

Ong)

JAVELLANA vs. THE EXECUTIVE SECRETARY etal.

GR L-36142, March 31, 1973
EN BANC, CONCEPCION (CJ): 6 concur, 4 dissenting

Facts:
A Ratification Case:
On January 20, 1973, three (3) days after the issuance of Proclamation No. 1102, Josue Javellana
filed a case against the Executive Secretary and the Secretaries of National Defense, Justice and
Finance, to restrain said respondents "and their subordinates or agents from implementing any of
the provisions of the propose Constitution not found in the present Constitution" — referring to
that of 1935.

The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and
registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly
situated," was amended on or about January 24, 1973. Javellana alleged that the President
(Marcos) had announced "the immediate implementation of the New Constitution, thru his
Cabinet, respondents including," and that the latter "are acting without, or in excess of
jurisdiction in implementing the said proposed Constitution" upon the ground: "that the
President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority
to create the Citizens Assemblies"; that the same "are without power to approve the proposed
Constitution ..."; "that the President is without power to proclaim the ratification by the Filipino
people of the proposed Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."

Issue:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable or political and
therefore non- justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified
validly (with substantial, if not strict, compliance) conformably to the applicable
constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid

ratification) by the people?

4. Are petitioners entitled to relief?

5. Is the aforementioned proposed Constitution in force?

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

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified
validly (with substantial, if not strict, compliance) conformably to the applicable
constitutional and statutory provisions?
On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified in accordance with
Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e.,
"in an election or plebiscite held in accordance with law and participated in only by qualified and
duly registered voters.
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has
been validly ratified pursuant to Article XV, I still maintain that in the light of traditional
concepts regarding the meaning and intent of said Article, the referendum in the Citizens'
Assemblies, especially in the manner the votes therein were cast, reported and canvassed, falls
short of the requirements thereof. In view, however, of the fact that I have no means of refusing
to recognize as a judge that factually there was voting and that the majority of the votes were for
considering as approved the 1973 Constitution without the necessity of the usual form of
plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not
in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the
belief that in doing so they did the part required of them by Article XV, hence, it may be said that
in its political aspect, which is what counts most, after all, said Article has been substantially
complied with, and, in effect, the 1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their
view there has been in effect substantial compliance with the constitutional requirements for
valid ratification.

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid

ratification) by the people?
On the third question of acquiescence by the Filipino people in the aforementioned proposed
Constitution, no majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that
"the people have already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free
expression, and there has even been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American
decisions to the effect that independently of the validity of the ratification, a new Constitution
once accepted acquiesced in by the people must be accorded recognition by the Court, I am not
at this stage prepared to state that such doctrine calls for application in view of the shortness of
time that has elapsed and the difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant feature of martial law."
Three (3) members of the Court express their lack of knowledge and/or competence to rule on
the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement
that "Under a regime of martial law, with the free expression of opinions through the usual media
vehicle restricted, (they) have no means of knowing, to the point of judicial certainty, whether
the people have accepted the Constitution."

4. Are petitioners entitled to relief?

On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice
Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of the said
Constitution, in the final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, and therefore beyond the competence of this
Court, are relevant and unavoidable."
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. Is the aforementioned proposed Constitution in force?

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.