Javellana vs. The Executive Secretary, 50 SCRA 30, March 31, 1973

2/5/2021 CentralBooks:Reader
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.
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.
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.
No. L-36236. March 31, 1973.
EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of
the Philippines], petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION,
THE AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATION-
31
al Treasurer, respondents.
No. L-36283. March 31, 1973.
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M.
GONZALEZ, petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF
NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, and THE HONORABLE AUDITOR GENERAL,
respondents.
Constitutional law; Doctrine of Separation of powers; Six Justices agree that the issue of the validity of
Proclamation 1102 (announcing the ratification of the proposed Constitution) is a justiciable question; four
Justices differ.—On the first issue involving the political-question doctrine, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and Chief Justice Concepcion, or six (6) members of the Court, hold that the
issue of the validity of Proclamation 1102 presents a justiciable and non-justiciable question. Justices
Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of
the second question. Justice Barredo qualified his vote, stating that “inasmuch as it is claimed that there
has been approval by the people, the Court may inquire into the question of whether or not there has
actually been such an approval, and, in the affirmative, the Court should keep its hands-off out of respect to
the people’s will, but, in the negative, the Court may determine from both factual and legal angles whether
or not Article XV of the 1935 Constitution has been complied with.” Justices Makasiar, Antonio and
Esguerra, or three (3) members of the Court hold that the issue is political and “beyond the ambit of judicial
inquiry.”
Same; Amendments; Six Justices agree that the Constitution proposed by the 1971 Constitutional
Convention has not been ratified validly conformably to the applicable constitutional and statutory
provisions; one Justice qualifies his vote while the three others dissent.—On the second question of validity of
the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and Chief Justice Concepcion,
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.”
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32 SUPREME COURT REPORTS

ANNOTATED
Javellana vs. The Executive Secretary
www.central.com.ph/sfsreader/session/00000177722cfb7b22db510d003600fb002c009e/t/?o=False 1/182
Justice Barredo qualified his vote while 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.
Same; Same; Four Justices hold that the proposed Constitution has been acquiesced in by the people; two
Justices hold that the people have not expressed themselves; one Justice thinks the doctrine of “Constitution
by acquiescence” inapplicable; while the three other justices agree that they lack the knowledge or competence
to make a determination.—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 Chief Justice Concepcion 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 thinks that the doctrine of “Constitution by
acquiescence” cannot be applied at this time 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.”
Remedial law; Certiorari; Six Justices voted to dismiss the petitions while the four others voted to give
them due course.—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 “the effectivity of the said Constitution, in
the final analysis, is the basic and ultimate question posed by these cases to resolve which considerations
other than judicial, and therefore beyond the competence of this Court, are relevant and unavoidable.” Four
(4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and Chief Justice Concepcion
voted to deny respondents’ motion to dismiss and to give due course to the petitions.
Constitutional law; Amendments; Four Justices hold that the new Constitution of 1973 is in force; four
Justices did not vote on the question; while the remaining two Justices voted that the proposed
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Constitution is not in force.—On the fifth question of whether the new Constitution of 1973 is in force:
Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the people’s
acceptance thereof; 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 Justice Zaldivar and Chief Justice
Concepcion 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.
Concepcion, C.J., dissenting:
Constitutional law; Courts; Only a majority of all the members of the Supreme Court is required to annul
an executive proclamation.—There is nothing either in the Constitution or in the Judiciary Act requiring the
vote of eight Justices to nullify a rule or regulation or an executive order issued by the President. It is very
significant that in the previous drafts of section 10, Article VIII of the Constitution, “executive order” and
“regulation” were included among those that required for their nullification the vote of two thirds of all the
members of the Court. But “executive order” and “regulation” were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. 1, pp. 495, 496), and thus a mere majority of six members of
this Court is enough to nullify them. x x x An executive proclamation has no more than “the force of an
executive order,” so that, for the Supreme Court to declare such proclamation unconstitutional, under the
1935 Constitution, the same number of votes needed to invalidate an executive order, rule or regulation —
namely, six (6) votes — would suffice.
Same; Same; The question of the effectivity of the new Constitution should be determined by applying the
provisions of the former Constitution.—As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in the determination of the question whether
or not it is now in force, it is obvious that such question depends upon whether or not the said new
Constitution has been ratified in accordance with the requirements of the 1935 Constitution, upon the
authority of which said Constitutional Convention was called and approved the proposed Constitution. It is
well settled that the matter of ratification of an amendment to the Constitution should be settled applying
the provisions of the Constitution in force at the time of the alleged ratification of the old
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ANNOTATED
Constitution.
Same; Doctrine of Separation of Powers; The validity of Proclamation 1102 does not partake of the
nature of a political, and, hence, nonjusticiable question.—Referring to the issue on whether the new
Constitution proposed by the 1971 Constitutional Convention has been ratified in accordance with the
provisions of Article XV of the 1935 Constitution is a political question or not, I do not hesitate to state that
the answer must be in the negative. Indeed, such is the position taken by this Court, 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.
Same; Same; The issue of whether the exercise of a Constitutional power has met its conditions is
justiciable.—When the grant of power is qualified, conditional or subject to limitations, the issue on whether
or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or
non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualifications, conditions or limitations — particularly those prescribed or imposed by the
Constitution — would be set at naught. What is more, the judicial inquiry into such issue and the settlement
thereof are the main functions of courts of justice under the Presidential form of government adopted in our
1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence we
have neither the authority nor the discretion to decline passing upon said issue, but are under
the ineluctable obligation — made particularly more exacting and peremptory by our oath, as members of
the highest Court of the land, to support and defend the Constitution — to settle it.
Same; Amendments; Elections; The right to vote is conferred by the Constitution and the same may not be
increased or diminished.— Article V of the Constitution was meant to be and is a grant or conferment of a
right to persons possessing the qualifications and none of the disqualifications therein mentioned, which in
turn, constitute a limitation of or restriction to said right,
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and cannot accordingly, be dispensed with, except by constitutional amendment. Obviously, every such
constitutional grant or conferment of right is necessarily a negation of the authority of Congress or of any
other branch of the government to deny said right to the subject of the grant — and, in this sense, only, may
the same partake of the nature of a guarantee. But, this does not imply, not even remotely, that the
Fundamental Law allows Congress or anybody else to vest in those lacking the qualifications and having the
disqualifications mentioned in the Constitution the right of suffrage.
Same; Same; Same; The votes of persons less than 21 years of age renders the proceedings in the Citizens
assemblies void.—It is thus clear that the proceedings held in such Citizens’ Assemblies were fundamentally
irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of the Constitution were
allowed to vote in said assemblies. And, since there is no means by which the invalid votes of those less than
21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the
Citizens’ Assemblies must be considered null and void.
Same; Same; Same; Viva voce voting for the ratification of the Constitution is void.—Article XV
envisages — with the term “votes cast” — choices made on ballots — not orally or by raising hands — by the
persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American
Regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform
official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of
keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns. And
the 1935 Constitution has been so consistently interpreted in allplebiscites for the ratification or rejection of
proposed amendments thereto, from 1935 to 1967. Hence the viva voce voting in the Citizens’ Assemblies
was and is null and void ab initio.
Same; Same; Commission on Elections; The plebiscite on the Constitution, not having been conducted
under the supervision of the Comelec is void.—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. The procedure therein
mostly followed is such that there is no reasonable means of checking the accuracy of the returns filed by the
officers who conducted said plebiscites. This is another patent violation of
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ANNOTATED
Art. X of the Constitution which can be hardly sanctioned. And, since the provisions of this article form
part of the fundamental scheme set forth in the 1935 Constitution, as amended, to ensure the “free, orderly,
and honest” expression of the people’s will, the aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens’ Assemblies, insofar as the same are claimed to
have ratified the revised Constitution proposed by the 1971 Constitutional Convention.
Same; Same; The Presidential proclamation of the ratification of the proposed Constitution, when
assailed, may be inquired into.—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, indirect proceedings therefor — such as the cases at bar — and
the issue raised therein may and should be decided in accordance with the evidence presented.
Same; Same; Proclamation 1102 is not an evidence of ratification.—Inasmuch as Art. X of the 1935
Constitution places under “exclusive” charge of the Commission on Elections, “the enforcement and
administration of all laws relative to the conduct of election,” independently of the Executive, and there is
not even a certification by the Commission in support of the alleged results of the citizens’ assemblies relied
upon in Proclamation No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president
of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to
the President the alleged result of the citizens’ assemblies all over the Philippines — it follows necessarily
that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of
the alleged ratification of the proposed Constitution.
Same; Same; The citizens assemblies did not adopt 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.
Same; Same; The acts of the executive department under martial law cannot be construed as an
acquiescence to the proposed Constitution.—I am not prepared to concede that the acts of the officers and
offices of the Executive Department, in line with Proclamation No. 1102, connote a recognition thereof or an
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VOL. 50, MARCH 31, 1973 37
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.
Same; Same; A department of the Government cannot “recognize” its own acts.—Then again, a given
department of the Government cannot generally be said to have “recognized” its ownacts. Recognition
normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate
officer or office of the Government complies with the commands of a superior officer or office, under whose
supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal
and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or
office, if he or it acted otherwise, would just be guilty of insubordination.
Same; Same; Individual acts of recognition by members of Congress do not constitute congressional
recognition.—Individual acts of recognition by members of our legislature, as well as of other collegiate
bodies under the government, are invalid as acts of said legislature or bodies, unless its members have
performed said acts in session duly assembled, or unless the law provides otherwise, and there is no such
law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public
Officers, and no plausible reason has been adduced to warrant departure therefrom.
Same; Same; The compliance by the people with the orders of the martial law government does not
constitute acquiescence to the proposed Constitution.—Neither am I prepared to declare that the people’s
inaction as regards Proclamation No. 1102, and their compliance with a number of Presidential orders,
decrees and/or instructions — some or many of which have admittedly had salutary effects — issued
subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said
Proclamation No. 1102. The intimidation is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or acquiescence.
Same; Same; The “enrolled bill” rule does not apply to the acts of the President in reference to powers he
does not possess.—As
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ANNOTATED
regards the applicability to these cases of the “enrolled bill” rule, it is well to remember that the same
refers to a document certified to the President — for his action under the Constitution — by the Senate
President and the Speaker of the House of Representatives, and attested to by the Secretary of the senate
and the Secretary of the House of Representatives, concerning legislative measures approved by the two
House of Congress. Whereas, Proclamation 1102 is an act of the President declaring the results of a
plebiscite on the proposed Constitution, an act which Article X of the 1935 Constitution denies the executive
department of the Government.
Remedial law; Certiorari; Due course should be granted to the petitions there being more than prima
facie showing of noncompliance with the Constitution.—In all other respects and with regard to the other
respondents in said case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that the
petitions therein should be given due course, there being more than prima facie showing that the proposed
Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly or
substantially, or has been acquiesced in by the people or a majority thereof; that said proposed Constitution
is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at a plebiscite for its ratification or
rejection m 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.
Makalintal and Castro, JJ.:
Constitutional law; Inquiry as to whether or not the act of the Citizens Assemblies as certified and
proclaimed by the President was an act of ratification lies within the power of judicial review.—Such a
finding [a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by
the President m Proclamation No. 1102, was not in accordance with the constitutional and statutory
procedure laid down for the purpose] 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 otiicial acts. No
question of wisdom or of policy is involved.
Same; Procedure of ratification followed not in accordance with the 1935 Constitution and the related
statutes; Reasons.—There should be no serious dispute as to the fact that the manner in which
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VOL. 50, MARCH 31, 1973 39
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, lection 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.
Same; Same; Same.—The Citizens Assemblies were not limited to qualified, let alone registered, voters,
but included all citizens from the age of fifteen, and regardless of whether or not they were illiterates, feeble-
minded, or ex-convicts — these being the classes of persons expressly disqualified from voting by Section 102
of the Election Code. In short, the constitutional and statutory qualifications were not considered in the
determination of who should participate. No official ballots were used in the voting; it was done mostly by
acclamation or pen show of hands. Secrecy, which is one of the essential features of the election process, was
not therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures
was prescribed or followed. The Commission on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of elections, took no part at all, either by
way of supervision or in the assessment of the results.
Same; Matter of whether or not the Constitution has become effective because of popular acquiescence
beyond the domain of judicial review.—Under a regime of martial law, with the free expression of opinions
through the usual media vehicles restricted, we have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution. In any event, we do not find the issue decisive insofar as
our vote in these cases is concerned. To interpret the Constitution — that is judicial. That the Constitution
should be deemed in effect because of popular acquiescence — that is political, and therefore beyond the
domain of judicial review.
Barredo, J.:
Constitutional law; Validity of a law presumed until otherwise declared unconstitutional.—With full
consciousness of my limitations but compelled by my sense of duty and propriety to straighten out this grave
issue (on whether the Court is acting as an 11-man Court under the 1935 Constitution or as a 15-man Court
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ANNOTATED
under the 1973 Constitution) touching on the capacity in which the Court is acting in these cases, I hold
that we have no alternative but to adopt in the present situation the orthodox rule that when the validity of
an act or law is challenged as being repugnant to a constitutional mandate, the same is allowed to have
effect until the Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on
the assumption that the new Constitution is in force and that We are acting in these present cases as the
15-man Supreme Court provided for therein. Contrary to counsel’s contention, there is here no prejudgment
for or against any of the two constitutions. The truth of the matter is simply that in the normal and logical
conduct of governmental activities, it is neither practical nor wise to defer the course of any action until
after the courts have ascertained their legality, not only because if that were to be the rule, the functioning
of government would correspondingly be undesirably hesitative and cumbersome, but more importantly,
because the courts must at the first instance accord due respect to the acts of the other departments, as
otherwise, the smooth running of the government would have to depend entirely on the unanimity of
opinions among all its departments, which is hardly possible, unless it is assumed that only the judges have
the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which is
contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the
world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable
we might believe the idea to be. ... 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 put from Malacafiang under the authority of said Constitution. ...
Moreover, what makes the premise of presumptive validity preferable and] imperative, is that We are
dealing here with a whole Constitution that radically modifies or alters not only the form of our government
from presidential to parliamentary but also other constitutionally based institutions vitally affecting all
levels of society.
Same; When Article XV of the 1935 Constitution not complied with.—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,
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VOL. 50, MARCH 31, 1973 41
albeit I held that nonetheless, the Constitution of 1973 is already in force.

Same; Result of referendum is as the President stated.—In my opinion in those cases, the most
important point I took into account was that in the face* of the Presidential certification through
Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and
having in mind facts of general knowledge which I have taken judicial notice of, I am in no position to deny
that the result of the referendum was as the President had stated. I can believe that the figures referred to
in the proclamation may not be accurate, but I cannot say in conscience that all of them are manufactured or
prefabricated, simply because I saw with my own eyes that people did actually gather and listen to
discussions, if brief and inadequate for those who are not abreast of current events and general occurrences,
and that they did vote.. . . I am not prepared to discredit entirely the declaration that there was voting and
that the majority of the votes were in favor of the New Constitution. If in fact there were substantially less
than 14 million votes of approval, the real figure, in my estimate, could still be significant enough and
legally sufficient to serve as basis for a valid ratification.
Same; Referendum through Citizens Assemblies not mere consultative.—It is contended, however, that
the understanding was that the referendum among the Citizens Assemblies was to be in the nature of a
loose consultation and not an outright submission for purposes of ratification. I can see that at the, outset,
when the first set of questions was released, such may have been the idea. It must not be lost sight of,
however, that if the newspaper reports are to be believed, and I say this only because petitioners would
consider the newspapers as the official gazettes of the administration, the last set of six questions were
included precisely because the reaction to the idea of mere consultation was that the people wanted greater
direct participation, thru the Citizens Assemblies, in decision-making regarding matters of vital national
interest. Thus, looking at things more understandingly and realistically, the two questions emphasized by
counsel, namely, (1) Do you approve of the New Constitution? and (2) Do you want a plebiscite to be called to
ratify the new Constitution? should be considered no longer as loose consultations but as direct inquiries
about the desire of the voters regarding the matters mentioned.
Same; Results of referendum valid.—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
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ANNOTATED
decisions and more resolute action. After all voting on a whole new constitution is different from voting
on one, two or three specific proposed amendments, the former calls for nothing more than a collective view
of all the provisions of the whole charter, for necessarily, one has to take the good together with the bad in
it. It is rare for anyone to reject a constitution only because of a few specific objectional 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.
Same; Referendum not in strict compliance with 1935 Constitution.— At this juncture, I think it is fit to
make it clear that I am not trying to show that the result of the referendum may be considered as sufficient
basis for declaring that the New Constitution has been ratified in accordance with the amending clause of
the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The
foregoing discussion is only to counter, if I may, certain impressions regarding the general conditions
obtaining during and in relation to the referendum which could have in one way or another affected the
exercise of the freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the
end that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by
the people of the New Constitution they may also be considered.
Same; 1973 Constitution already adopted by the people.—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.
Same; Ruling in Tolentino vs. Comelec (U SCRA 702) distinguished from case at bar.—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
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requirements of Article XV thereof. What is more, that decision asserted judicial competence to inquire
into the matter of compliance or noncompliance as a justiciable matter. I still believe in the correctness of
those views and I would even add that I sincerely feel that it reflects the spirit of the said constitutional
provision. Without trying to strain any point, however, I submit the following considerations in the context
of the peculiar circumstances of the cases now at bar, whicn are entirely different from those in the backdrop
of the Tolentino rulings I have referred to:
1. Consider that in the present case what is involved is not just an amendment of a particular provision
of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is
being proposed. This important circumstance makes a great deal of difference.
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.
3. 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 1935 Constitution on
January 22, 1973 for the regular session.
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 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 significant 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
44

ANNOTATED
political right to choose the fundamental charter by which their lives, their liberties and their fortunes
shall be safeguarded
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, oftweferred to above, in the Plebiscite
Cases — that is, as an extraconstitutional 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.
Makasiar, J.:
Constitutional law; Issue as to the validity of Proclamation No. 1102 political and not justiciable;
Reasons.—Assuming, without conceding, that the procedure for ratification prescribed in Article XV of the
1935 Constitution was not complied with, the validity of Presidential Proclamation No. 1102 is a political,
not a justiciable, issue; for it is inseparably or inextricably linked with and strikes at, because it is decisive
of, the validity of the ratification and adoption of, as well as acquiescence of the people in, the 1973
Constitution and the legitimacy of the government organized and operating thereunder. And being political,
it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in
Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051).
Same; Acceptance by the people of the 1973 Constitution cures any infirmity in its submission; Reason.—
The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence
by the people cures any infirmity in its submission or any other irregularities therein which are deemed
mandatory before submission as they are considered merely directory after such ratification or adoption or
acquiescence by the people.
Esguerra, J.:
Constitutional law; Issue as to whether or not Constitution of November 30, 1972 ratified in accordance
with the amending process prescribed by the 1935 Constitution and other related statutes highly
45
VOL. 50, MARCH 31, 1973 45
political and not justiciable.—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 Colgrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to adopt the proper attitude towards political
upheavals and realize that the question before Us is political and not fit for judicial determination.
Same; Political question explained.—For a political question is one entrusted to the people for judgment
in their sovereign capacity (Tanada 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.”
Zaldivar, J., dissenting and concurring:
Constitutional law; Meaning of political question.—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.
Same; The courts have the power to determine whether the acts of the Executive are authorized by the
Constitution and the laws.—It is a settled doctrine that every officer under a constitutional government
must act according to law and subject to its restrictions, and every departure therefrom, or disregard
thereof, must subject him to the restraining and controlling power of the people, acting through the agency
of the judiciary. It must be remembered that the people act through the courts, as well as through the
executive or the legislature. One department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations which the law places upon
all official actions.
Same; Courts have power to determine validity of means adopted to change the Constitution.—It is in the
power of this Court, as the ultimate interpreter of the Constitution, to determine the
46

ANNOTATED
validity of the proposal, the submission, and the ratification of any change in the Constitution.
Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend
the constitution, and I believe that the Court can inquire into, and decide on, the question whether or not an
amendment to the Constitution, as in the present cases, has been ratified in accordance with the
requirements prescribed in the Constitution that was amended.
Same; “Election” contemplated in Article XV of the Constitution is an election conducted under the
election law.—The election contemplated in said constitutional provision is an election held in accordance
with the provisions of the election law, where only the qualified and registered voters of the country would
cast their votes, where official ballots prepared for the purpose are used, where the voters would prepare
their ballots in secret inside the voting booths in the polling places established in the different election
precincts throughout the country, where the election is conducted by election inspectors duly appointed in
accordance with the election law, where the votes are canvassed and reported in a manner provided for in
the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935
was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women’s Suffrage
was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11,
1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the
amendments to the Constitution to increase the number of Members of the House of Representatives and to
allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
Same; Votes cast in the barangays not the votes contemplated in Section 1 of Article XVof the 1935
Constitution.—It is my view that the President of the Philippines cannot by decree order the ratification of
the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed Constitution. It is very clear, to me, that Proclamation 1102 was
issued in complete disregard or in violation, of the provisions of Section 1 of Article XV of the 1935
Constitution.
Same; Same; Manner of voting by the barangays subject to judicial notice.—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
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VOL. 50, MARCH 31, 1973 47
consider the votes in the barangays as expressive of the popular will and use them as the basis in
declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which
would mean the rule of the crowd, which is only one degree higher than the rule by the mob.
Same; The fact that a majority voted for the amendment of the Constitution, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.—In the cases now before
this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes
cast in those assemblies cannot be made the basis for declaring the ratification of the proposed 1972
Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies
voted for the rejection, because the votes thus obtained were not in accordance with the provisions of Section
1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must be upheld.
Same; Voting in the barangays was not freely exercised because of the existence of martial law.—One of
the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential
Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice, because
of the existence of martial law in our country. The same ground holds true as regards the voting of the
barangays on January 10 to 15, 1973. More so, because by General Order No. 20, issued on January 7, 1973,
the President of the Philippines ordered ‘that the provisions of Section 3 of Presidential Decree No. 73 in so
far as they allow free public discussion of the proposed constitution, as well as my order of December 17,
1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on
the proposed constitution, be suspended in the meantime.'
Same; Meaning of “people” in the Constitution.—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.”
Same; The term “election” in Article XV of the Constitution should be taken in its historical perspective.—
It can safely be said 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
48

ANNOTATED
held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution,
and also the “election” mentioned in the Independence Act. It is but logical to expect that the framers of the
1935 Constitution would provide a mode of ratifying an. amendment to that Constitution itself.
Same; It cannot be said that the people have accepted the 1978 Constitution.—What appears to me,
however, is that practically it is only the officials and employees under the executive department of the
Government who have been performing their duties apparently in observance of the provisions of the new
Constitution.... True it is, that 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, only 22 took their oath of office.
This is an indication that only a small portion of the members of Congress had manifested their acceptance
of the new Constitution.
Same; Acceptance of Constitution is manifested by oath of office.—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 L-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 definitely effective and the interim National Assembly is convened they
can participate in legislative work in their capacity as duly elected representatives of the people, which
otherwise they could not do if they did not manifest their option to serve, and that option had to be made
within 30 days from January 17, 1973, the date when Proclamation No. 1102 was issued.
Same; Presidential declaration that government is not a revolutionary government subject to judicial
notice.—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
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VOL. 50, MARCH 31, 1973 49
has reason to be happy because, according to the President, we still have a constitutional government.
Same; Congress may still call a plebiscite.—It being my view that the 1935 Constitution is still in force,
I believe Congress may still convene and pass a law calling for an election at which the Constitution
proposed by the 1971 Constitutional Convention will be submitted to the people for their ratification or
rejection.
Fernando, J., dissenting:
Constitutional law; When power of judicial review should be exercised.—In the United States as well 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 cannot nullify the policy of others, they are incapable of
fashioning their own solutions for social problems.” Nonetheless, as was stressed by Professors Black, and
Murphy, a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the
coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus, in affirming
constitutional supremacy, the political departments could seek the aid of the judiciary.
Same; Same; Whether there has been deference to the provisions of the Constitution is a judicial question.
—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, Tolentino and Planas cases speak
uneauivocally to that effect. Nor is it a valid objection to this conclusion that what was involved in those
cases was the legality of the submission and not ratification, for from the very language of the controlling
article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss (256 US 368)
“cannot be treated as unrelated acts, but as succeeding steps in a single endeavor.” Once an aspect thereof is
viewed as judicial, there would be no justitification for considering the rest as devoid of that character.
Same; The Philippines has a tradition of judicial activism.—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
50

ANNOTATED
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.
Same; Nature of judicial function.—It suffices to state that what elicits approval on the part of our
people of a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that
to do so is merely to do what is expected of it and that thereby there is no invasion of spheres appropriately
belonging to the political branches. For it needs to be kept in mind 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 that it is satisfied with an empiricism
untroubled by the search for jural consistency and rational coherence. A balance has to be struck. So
juridical realism requires. Once allowance is made that for all its care and circumspection this Court is
manned by human beings fettered by fallibility, but nonetheless earnestly and sincerely striving to do right,
the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy
to understand. It has not in the past shirked its responsibility to ascertain whether there has been
compliance with and fidelity to the constitutional requirements. It should not start now. It should continue
to exercise its jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the
matter before it is political.
Same; Requirements of the Constitution for its amendment was not complied with.—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, 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 no inacc urate, then it cannot be confidently asserted that
there was such compliance. It would be to rely on conjectural assumptions that did founder on the rock of
the undisputed facts. Any other conclurion would, for me, require an interpretation that borders on the s
rained. 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 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 to assert that
the requirements of the 1935 Constitution have been met.
51
VOL. 50, MARCH 31, 1973 51

Same; Same.—Even if the assumption be indulged in that Article XV is not phrased in terms too clear to
be misread, so that this Court is called upon to give meaning and perspective to what could be considered
words of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined
when the light of the previous legislation is thrown on it. In the first Commonwealth Act, 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.” Then came the statute,
calling for the plebiscite on the three 1940 amendments providing for a bicameral Congress or a Senate and
a House of Representatives to take the place of a unicameral National Assembly, reducing the term of the
President to four years but allowing this re-election with the limitation that he cannot serve for more than
eight consecutive years, and creating an independent Commission on Elections. Again it was expressly
provided that the election “shall be conducted in conformity with the provisions of the Election Code insofar
as the same may be applicable.” The approval of the present parity amendment was by virtue of a Republic
Act which specifically made applicable the then Election Code. There is a similar provision in the legislation
which in contemplation of the 1971 Constitutional Convention provided for increase of the membership of
the House of Representatives, to a maximum of one hundred eighty, and the eligibility of senators and
representatives to become members of such constitutional convention without forfeiting their seats. Thus,
the consistent course of interpretation followed by the legislative branch is most persuasive, if not
controlling. The restraint thus imposed would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives,
he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how
they register their will, Article XV had been given a definitive construction.
Same; Petitions in the case at bar should not be dismissed.—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 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
52

ANNOTATED
that votes are cast by individuals with their personal concerns uppermost in mind, worried about their
immediate needs and captive to their existing moods. That is inherent in any human institution, much more
so in a democratic polity. Nor is it open to any valid objection because in the final analysis the state exists
for the individuals who in their collectivity compose it. Whatever be their views, it is entitled to respect. It is
difficult for me, however, at this stage to feel secure in the conviction that they did utilize the occasion
afforded to give expression to what was really in their hearts. This is not to imply that such doubt could not
be dispelled by evidence to the contrary. If the petitions be dismissed, however, then such opportunity is
forever lost.
Same; A decision in favor of the petitioners need not be immediately executory.—It might be asked
though, suppose the petitioners should prevail? What then? Even so, the decision of this Court need not be
executory right away. Such a disposition of a case before this Court is not novel. That was how it was done
in the Emergency Powers Act controversy. 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.
Same; How the case at bar should be viewed.—For some, to so view the question before us is to be
caught in a web of unreality, to cherish illusions that cannot stand the test of actuality. What is more, it
may give the impression of reliance on what may, for the practical man of affairs, be no more than gossamer
distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to
transcend what for me are the implications of traditional constitutionalism. This is not to assert that an
occupant of the bench is bound to apply with undeviating rigidity doctrines which may have served their
day. He could at times even look upon them as mere scribblings in the sands to be washed away by the
advancing tides of the present. The introduction of novel concepts may be Cirried 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 spasr iodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough
in all conscience is the field of discretion that remains.”
53
VOL. 50, MARCH 31, 1973 53
Teehankee, J., dissenting:
Constitutional law; Issue as to the validity of Presidential Proclamation No. 1102 presents a justiciable
question and constitutes a proper subject of judicial review; Reasons.—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, “(T)he
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they should be in any living
Constitution.”
Same; Same; Same.—Justice Laurel pointed out that in contrast to the United States Constitution, the
Philippine Constitution as “a definition of the powers of government” placed upon the judiciary the great
burden of “determining the nature, scope and extent of such powers” and stressed that “when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments
... but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to them.”
Same; No valid ratification of Constitution where ratification not in accordance with mandatory
requirements of Article XV of the 1935 Constitution.—Since it appears on the face of Proclamation 1102 that
the mandatory requirements of the constitutional articles have not been complied with and that no election
or plebiscite for ratification as therein provided as well as in section 16 of Article XVII of the proposed
Constitution itself has been called or held, there cannot be said to have been a valid ratification.
Same; Same; Necessity of strict adherence to constitutional requirements; Reasons for.— 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
54

ANNOTATED
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.
ORIGINAL PETITIONS in the Supreme Court. Mandamus and prohibition.

The facts are stated in the resolution of the Court.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada & Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordonez, 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, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929, L-35940, L-
35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided on January 22, 1973,
to which We will hereafter refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from which We quote:
55
VOL. 50, MARCH 31, 1973 55


“On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the
Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No.
6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said
Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its
functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued
Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the
Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November
30, 1972, the President of the Philippines issued Presidential Decree No. 73, “submitting to the Filipino
people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds therefor,” as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15, 1973.
“Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-35925,
against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin
said ‘respondents or their agents from implementing Presidential Decree No. 73, in any manner, until
further orders of the Court,’ upon the grounds, inter alia, that said Presidential Decree ‘has no force and
effect as law because the calling x x x 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 x x x,’
and ‘there is no proper submission to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being no sufficient time to inform the
people of the contents thereof.’
“Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the
Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxas, et al., against
the Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General
(Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the
56
56 SUPREME COURT REPORTS ANNOTATED

Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against the National Treasurer and the
Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the
Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing
(Case G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections
(Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections,
the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R.
No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the
National Treasurer and the Auditor General (Case G.R. No. L-35965); and on December 16, 1972, by
Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National
Treasurer and the Auditor General (Case G.R. No. L-35979).
“In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers
‘not later than 12:00 (o’clock) noon of Saturday, December 16, 1972.’ Said cases were, also, set for hearing
and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19,
1972. By agreement of the parties, the aforementioned last case — G.R. No. L-35979 — was, also, heard,
jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in
all of the aforementioned cases were given a short period of time within which ‘to submit their notes on the
points they desire to stress.’ Said notes were filed on different dates, between December 21, 1972, and
January 4, 1973.
“Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the plebiscite for the ratification or rejection of
the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General
Order No. 20 was issued, directing ‘that the plebiscite scheduled to be held on January 15, 1978, be
postponed until further notice.’ Said General Order No. 20, moreover, ‘suspended in the meantime’ the ‘order
of December 17, 1972, temporarily suspending the effects of Proclamation
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No. 1081 for purposes of free and open debate on the proposed Constitution.’
“In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed
it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the
conditions under which said plebiscite would be held were known or announced officially. Then, again,
Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973,
and since the main objection to Presidential Decree No. 73 was that the President does not have the
legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably
could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly
after consultation with, among others, the leaders of Congress and the Commission on Elections — the
Court deemed it more imperative to defer its final action on these cases.
“In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an ‘urgent motion,’
praying that said case be decided ‘as soon as possible, preferably not later than January 15, 1973.’ It was
alleged in said motion, inter alia:
‘6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the
so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973];
‘7. That thereafter it was later announced that “the Assemblies will be asked if they favor or oppose —
“[1] The New Society;
“[2] Reforms instituted under Martial Law;
“[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new dates
given following the postponement of the plebiscite from the original date of January 15 are February
19 and March 5);
“[4] The opening of the regular session slated on January 22 in accordance with the existing
Constitution despite Martial Law.” [Bulletin Today, January 3, 1973.]
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‘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 on more question would be added to the four (4)
question previously announced, and that the forms of the question would be as follows: —
“[1] Do you like the New Society?
“[2] Do you like the reforms under martial law?
“[3] Do you like Congress again to hold sessions?
“[4] Do you like the plebiscite to be held later?
“[5] Do you like the way President Marcos running the affairs of the government? [Bulletin Today,
January 10, 1973; emphasis an additional question.]
‘11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so-
called Citizens Assemblies: —
“[1] Do you approve of the citizens assemblies as the base of popular government to decide issues of
national interests?
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VOL. 50, MARCH 31, 1973 59


“[2] Do you approve of the new Constitution?
“[3] Do you want a plebiscite to be called to ratify the new Constitution?
“[4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution?
“[5] If the elections would not be held, when do you want the next elections to be called?
“[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied]
‘12. That according to reports, the returns with respect to the six (6) additional questions quoted above
will be on a form similar or identical to Annex “A” hereof;
‘13. That attached to page 1 of Annex “A” is another page, which we marked as Annex “A-1,” and which
reads: —
“COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens’ participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should
not be done so until after at least seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the plebiscite on the New
Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be
deemed ratified.
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QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so
much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be
established in the country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his powers with
more authority. We want him to be strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we want President Marcos to declare
a revolutionary government along the lines of the new Constitution without the ad interim Assembly.”
‘Attention is respectfully invited to the comments on “Question No. 3,” which reads: —
“QUESTION No. 3
The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution.
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];
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‘15. That petitioners have reason to fear, and therefore state, that the question added in the last list of
questions to be asked to the Citizens Assemblies, namely: —
“Do you approve of the New Constitution?” —
in relation to the question following it: —
“Do you still want a plebiscite to be called to ratify the new Constitution?” —
would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the
validity of the plebiscite on the proposed Constitution is now pending;
‘16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two
questions just referred to will be reported then this Honorable Court and the entire nation will be confronted
with a fait accompli which has been attained in a highly unconstitutional and undemocratic manner;
‘17. That the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution;
‘18. That, if such event would happen, then the case before this Honorable Court could, to all intents and
purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of such
supposed expression of the will of the people through the Citizens Assemblies, it would be announced that
the proposed Constitution, with all its defects, both congenital and otherwise, has been ratified;
‘19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood of
confusion if not chaos, because then, the people and their officials will not know which Constitution is in
force.
‘20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide
and announce its decision on the present petition;
‘21. That with the withdrawal by the President of the limited freedom of discussion on the proposed
Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the opposition
of respondents to petitioners’
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prayer at the plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held.’
“At about the same time, a similar prayer was made in a ‘manifestation’ filed by the petitioners in L-
35949, ‘Gerardo Roxas, et al. v. Commission on Elections, et al.,’ and L-35942, ‘Sedfrey A. Ordoñez, et al. v.
The National Treasurer, et al.’
“The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said ‘urgent motion’ and ‘manifestation,’ ‘not later than
Tuesday noon, January 16, 1973.’ Prior thereto, or on January 15, 1973, shortly before noon, the petitioners
in said Case G.R. No. L-35948 riled a ‘supplemental motion for issuance of restraining order and inclusion of
additional respondents,’ praying —
‘x x x that a restraining order be issued enjoining and restraining respondent Commission on
Elections, as well as the Department of Local Governments and its head, Secretary Jose Roño; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the President or other officials concerned, the so-called
Citizens’ Assemblies referendum results allegedly obtained when they were supposed to have met
during the period comprised between January 10 and January 15, 1973, on the two questions quoted
in paragraph 1 of this Supplemental Urgent Motion.’
“In support of this prayer, it was alleged —
‘3. That petitioners are now before this Honorable Court in order to ask further that this Honorable
Court issue a restraining order enjoining herein respondents, particularly respondent Commission on
Elections as well as the Department of Local Governments and its head, Secretary Jose Roño; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates
and/or substitutes, from collecting, certifying, announcing and reporting to the President the supposed
Citizens’ Assemblies referendum results allegedly obtained when they were supposed to have met
during the period between January 10 and January 15, 1973, particularly
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on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion;

‘4. That the proceedings of the so-called Citizens’ Assemblies are illegal, null and void particularly insofar
as such proceedings are being made the basis of a supposed consensus for the ratification of the proposed
Constitution because: —
[a] The elections contemplated in the Constitution, Article XV, at which the proposed constitutional
amendments are to be submitted for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so called Citizens’ Assemblies were participated
in by persons 15 years of age and older, regardless of qualifications or lack thereof, as prescribed in
the Election Code;
[b] Elections or plebiscites for the ratification of constitutional amendments contemplated in Article
XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens’ Assemblies were open and were cast by
raising hands;
[c] The Election Code makes ample provisions for free, orderly and honest elections, and such
provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and regulate proceedings of the so called
Citizens’ Assemblies;
[d] It is seriously to be doubted that, for lack of material time, more than a handful of the so called
Citizens’ Assemblies have been actually formed, because the mechanics of their organization were still
being discussed a day or so before the day they were supposed to begin functioning: —
‘Provincial governors and city and municipal mayors had been meeting with barrio captains
and community leaders since last Monday [January 8, 1973) to thresh out the mechanics in the
formation of the Citizens Assemblies and the topics for discussion.’ [Bulletin Today, January 10,
1973]
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‘It should be recalled that the Citizens’ Assemblies were ordered formed only at the beginning of the year
[Daily Express, January 1, 1973], and considering the lack of experience of the local organizers of said
assemblies, as well as the absence of sufficient guidelines for organization, it is too much to believe that such
assemblies could be organized at such a short notice.
‘5. That for lack of material time, the appropriate amended petition to include the additional officials and
government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed
because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens’ Assemblies was not made known to the public until January 11, 1973. But be that as it may,
the said additional officials and agencies may be properly included in the petition at bar because: —
[a] The herein petitioners have prayed in their petition for the annulment not only of Presidential
Decree No. 73, but also of “any similar decree, proclamation, order or instruction.”
so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a
plebiscite by the so-called Citizens’ Assemblies, is properly in issue in this case, and those who enforce,
implement, or carry out the said Presidential Decree No. 86, and the instructions incidental thereto clearly
fall within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining
not only the respondents named in the petition but also their “agents” from implementing not only
Presidential Decree No. 73, but also “any other similar decree, order, instruction, or proclamation in
relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino
people for their ratification or rejection the 1972 Draft or proposed Constitution approved by the
Constitutional Convention on November 30, 1972”; and finally,
[c] Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition].
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“Therefore, viewing the case from all angles, the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this Honorable
Court by reason of this petition, considering, furthermore, that the Commission on Elections has under our
laws the power, among others, of: —
“(a) Direct and immediate supervision and control over national, provincial, city, municipal and
municipal district officials required by law to perform duties relative to the conduct of elections on
matters pertaining to the enforcement of the provisions of this Code *****” [Election Code of 1971, Sec.
3].
‘6. That unless the petition at bar is decided immediately and the Commission on Elections, together with
the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are
restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens’ Assemblies, irreparable damage will be caused to the Republic of the
Philippines, the Filipino people, the cause of freedom an democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall
have been announced, a conflict will arise between those who maintain that the 1935 Constitution is
still in force, on the one hand, and those who will maintain that it has been superseded by the
proposed Constitution, on the other, thereby creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious attack because the advocates of the
theory that the proposed Constitution has been ratified by reason of the announcement of the results
of the proceedings of the so-called Citizens’ Assemblies will argue that, General Order No. 3, which
shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has
placed Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court.’
66


“On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents in
said case G.R. No. L-35948 to file “file an answer to the said motion not later than 4 P.M., Tuesday, January
16, 1973,” and setting the motion for hearing “on January 17, 1973, at 9:30 a.m.” While the case was being
heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion
and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the
writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer
returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 — inasmuch as
the hearing in connection therewith was still going on — and the public there present that the President
had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102,
earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
‘BY THE PRESIDENT OF THE PHILIPPINES
‘PROCLAMATION NO. 1102
‘ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION
PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
‘WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention
is subject to ratification by the Filipino people;
‘WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in
chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons
who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens
of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district
or ward secretary;
‘WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizenry to express their
views on important national issues;
‘WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated
January 5, 1973, the following questions were posed before the Citizens
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Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
“WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection;
while on the question as to whether or not the people would still like a plebiscite to be called to ratify the
new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814)
answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies)
should be considered as a vote in a plebiscite;
“WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members
of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should already be deemed ratified by the
Filipino people;
‘NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
‘IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
‘Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.
(Sgd.) FERDINAND E. MARCOS
‘President of the Philippines
‘By the President:
‘ALEJANDRO MELCHOR
‘Executive Secretary’
68

“Such is the background of the cases submitted 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 affirmative defenses: 1) that the ‘questions raised’ in said petition ‘are political
in character’; 2) that ‘the Constitutional Convention acted freely and had plenary authority to propose not
only amendments but a Constitution which would supersede the present Constitution’; 3) that ‘the
President’s call for a plebiscite and the appropriation of funds for this purpose are valid’; 4) that ‘there is not
an improper submission” and ‘there can be a plebiscite under Martial Law’; and 5) that the ‘argument that
the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes
a referendum on the proclamation of Martial Law and purports to exercise judicial power’ is ‘not relevant
and x x x 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
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Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention.
“4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority
to continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices
Barredo, Makasiar and Antonio hold the same view.
“5. On the question whether the proclamation of Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice
Fernando is of the opinion that there is a repugnancy between the election contemplated under Art. XV of
the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they
not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that issue involves
questions of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude
the factual possibility of adequate freedom, for the purposes contemplated.
“6. On Presidential Proclamation No. 1102, the following views were expressed:
“a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the
opinion that the question of validity of said Proclamation has not been properly raised before the
Court, which, accordingly, should not pass upon such question.
“b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been
submitted to and should be determined by the Court, and that the ‘purported ratification of the
Proposed Constitution x x x 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, x x x
the new Constitution is legally recognizable and should be recognized as legitimately in force.’
“c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in
accordance with
70

Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever.
“d. Justice Antonio feels ‘that the Court is not competent to act’ on the issue whether the Proposed
Constitution has been ratified by the people or not, ‘in the absence of any judicially discoverable and
manageable standards,’ since the issue ‘poses a question of fact.’
“7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective
opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards Case No. L-35948
as to which they voted to grant to the petitioners therein a reasonable period of time within which to file
appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice
Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits
everyone of the cases under consideration.”
Accordingly, the Court — acting in conformity with the position taken by six (6) of its
members,1 with three (3) members dissenting,2 with respect to G.R. No. L-35948, only and
another member 3 dissenting, as regards all of the cases dismissed the same, without special
pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the
Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain
said respondents “and their subordinates or agents from implementing any of the provisions of
the 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
_______________
1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.
2 Chief Justice Concepcion and Justices Fernando and Teehankee.
3 Justice Zaldivar.
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voter” and as “a class suit, for himself, and in behalf of all citizens and voters similarly situated,”
was amended on or about January 24, 1973. After reciting in substance the facts set forth in the
decision in the plebiscite cases, Javellana alleged that the President had announced “the
immediate implementation of the New Constitution, thru his Cabinet, respondents including,”
and that the latter “are acting without, or in excess of jurisdiction in implementing the said
proposed Constitution” upon the ground: “that the President, as Commander-in-Chief of the
Armed Forces of the Philippines, is without authority to create the Citizens Assemblies”; that the
same “are without power to approve the proposed Constitution ...”; “that the President is without
power to proclaim the ratification by the Filipino people of the proposed Constitution”; and “that
the election held to ratify the proposed Constitution was not a free election, hence null and void.”
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro
Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada, against
the Executive Secretary, the Secretaries of Finance, Justice, Land Reform, and National Defense,
the Auditor General, the Budget Commissioner, the Chairman of the Presidential Commission on
Reorganization, the Treasurer of the Philippines, the Commission on Elections and the
Commissioner of Civil 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, the Budget Commissioner and the National
Treasurer;5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales,6 against the Executive Secretary, the Secretary of National
Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador
H. Laurel,7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as “duly elected
_______________
4 Case G.R. No. L-36164.
5 Case G.R. No. L-36236.
6 Case G.R. No. L-36293.
7 Who withdrew as petitioner on January 25, 1973.
72

Senator and Minority Floor Leader of the Senate,” and others as “duly elected members” thereof,
filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary National Defense,
the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the
President and the President Pro Tempore of the Senate. In their petition — as amended on
January 26, 1973 — petitioners Gerardo Roxas, et al. allege, inter alia, that the term of office of
three of the aforementioned petitioners8 would expire on December 31, 1975, and that of the
others9 on December 31, 1977; that pursuant to our 1935 Constitution, “which is still in force
Congress of the Philippines “must convene for its 8th Session on Monday, January 22, 1973, at
10:00 A.M., which is regular customary hour of its opening session”; that “on said day, from 10:00
A.M. up to the afternoon,” said petitioner “along with their other colleagues, were unlawfully
prevented from using the Senate Session Hall, the same having been closed by the authorities in
physical possession and control the Legislative Building”; that “(a)t about 5:00 to 6:00 P.M. the
said day, the premises of the entire Legislative Building were ordered cleared by the same
authorities, and no one was allowed to enter and have access to said premises”; that
“(r)espondent Senate President Gil J. Puyat and, in his absence, respondent President Pro
Tempore Jose Roy we asked by petitioning Senators to perform their duties under the law and
the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so”; that the
petitioners ready and willing to perform their duties as duly elected members of the Senate of the
Philippines,” but respondent Secretary of National Defense, Executive Secretary and Chief of
Staff, “through their agents and representatives, are preventing petitioners from performing
their duties as duly elected Senators of the Philippines”; that “the Senate premise in the
Congress of the Philippines Building x x x are occupied by and are under the physical control of
the elements military organizations under the direction of said
_______________
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.
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respondents”; that, as per “official reports, the Department of General Services x x x is now the
civilian agency in custody of the premises of the Legislative Building”; that respondents “have
unlawfully excluded and prevented, and continue to so exclude and prevent” the petitioners “from
the performance of their sworn duties, invoking the alleged approval of the 1972 (1973)
Constitution of the Philippines by action of the so-called Citizens’ Assemblies on January 10,
1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and issued
by the President of the Philippines”; that “the alleged creation of the Citizens’ Assemblies as
instrumentalities for the ratification of the Constitution of the Republic of the Philippines” is
inherently illegal and palpably unconstitutional; that respondents Senate President and Senate
President Pro Tempore “have unlawfully refrained and continue to refrain from and/or
unlawfully neglected and continue to neglect the performance of their duties and functions as
such officers under the law and the Rules of the Senate” quoted in the petition; that because of
events supervening the institution of the plebiscite cases, to which reference has been made in
the preceding pages, the Supreme Court dismissed said cases on January 22, 1973, by a majority
vote, upon the ground that the petitions therein had become moot and academic; that the alleged
ratification of the 1972 (1973) Constitution “is illegal, unconstitutional and void and x x x can not
have superseded and revoked the 1935 Constitution,” for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their “agents, representatives and
subordinates x x x have excluded the petitioners from an office to which” they “are lawfully
entitled”; that “respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening
the Senate for its 8th session, assuming general jurisdiction over the Session Hall and the
premises of the Senate and x x x continue such inaction up to this time and x x x a writ
of mandamus is warranted in order to compel them to comply with the duties and functions
specifically enjoined by law”; and that “against the above mentioned unlawful acts of the
respondents, the petitioners have no appeal nor other speedy and adequate remedy in the
ordinary course of law except by invoking the equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary mandatory injunction.”
74


Premised upon the foregoing allegations, said petitioners prayed that, “pending hearing on the
merits, a writ of preliminary mandatory injunction be issued ordering respondents Executive
Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines, and the x x x Secretary of General Service, as well as all their agents,
representatives and subordinates to vacate the premises of the Senate of the Philippines and to
deliver physical possession of the same to the President of the Senate or his authorized
representative”; and that hearing, judgment be rendered declaring null and Proclamation No.
1102 x x x and any order, decree, proclamation having the same import and objective, issuing
writs of prohibition and mandamus, as prayed for against above-mentioned respondents, and
making the writ injunction permanent; and that a writ of mandamus be issued against the
respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions
as President and President Pro Tempore, respectively, of the Senate of Philippines, as provided
by law and the Rules of the Senate.”
Required to comment on the above-mentioned petitions and/or amended petitions, respondents
filed, with the leave Court first had and obtained, a consolidated comment on said petitions
and/or amended petitions, alleging that the same ought to have been dismissed outright;
controverting petitioners’ allegations concerning the alleged lack impairment of the freedom of
the 1971 Constitution Convention to approve the proposed Constitution, its alleged lack of
authority to incorporate certain contested provisions thereof, the alleged lack of authority of the
President to create and establish Citizens’ Assemblies “for the purpose submitting to them the
matter of ratification of the new Constitution,” the alleged “improper or inadequate submission of
the proposed constitution,” the “procedure for ratification adopted x x x through the Citizens
Assemblies”; a maintaining that: 1) “(t)he Court is without jurisdiction to act on these petitions”;
2) the questions raised therein are “political in character and therefore nonjusticiable”; 3) “there
substantial compliance with Article XV of the 1935 Constitution”; 4) “(t)he Constitution was
properly submitted the people in a free, orderly and honest election; 5)
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VOL. 50, MARCH 31, 1973 75

“Proclamation No. 1102, certifying the results of the election, is conclusive upon the courts”; and
6) “(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of
other modes of amendment.”
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment
therein, alleging that “(t)he subject matter” of said case “is a highly political question which,
under the circumstances, this x x x Court would not be in a position to act upon judicially,” and
that, in view of the opinions expressed by three members of this Court in its decision in the
plebiscite cases, in effect upholding the validity of Proclamation No. 1102, “further proceedings in
this case may only be an academic exercise in futility.”
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to
comment on the petition therein not later than Saturday, February 10, 1973, and setting the case
for hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court
resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-
36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same
date and time as L-36236. On that date, the parties in G.R. No. L-3628310 agreed that the same
be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-
36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12, 1973, shortly
after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16,
morning and afternoon, after which the parties were granted up to February 24, 1973, noon,
within which to submit their notes of oral arguments and additional arguments, as well as the
documents required of them or whose presentation was reserved by them. The same resolution
granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents.
Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on
February 24, 1973, on which date the Solicitor General sought an extension of time up to March
3, 1973, within which to file his notes, which was granted, with
_______________
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
76

the understanding that said notes shall include his reply to the notes already filed by the
petitioners in G.R. Nos. L-36164 and L-36165. Counsel for the petitioners, likewise, moved and
were granted an extension of time, to expire on March 10, 1973, within which to file, as they did,
their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21,
1973, petitioners in L-36165 filed a “Manifestation a Supplemental Rejoinder,” whereas the Office
of the Solicitor General submitted in all these cases a “Rejoinder Petitioners’ Replies.”
After deliberating on these cases, the members of the Court agreed that each would write his
own opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the
Court discussed said opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court.
After the exposition his aforesaid opinion, the writer will make, concurrently with his colleagues
in the Court, a resume of summary of the votes cast by them in these cases.
Writer’s Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No.
L-36165, and, also, by the Solicitor General, is predicated upon the fact that, in Our decision in
the plebiscite cases, Mr. Justice Barredo had expressed the view that the 1935 Constitution had
“pro tanto passed into history” and “been legitimately supplanted by the Constitution now in
force by virtue of Proclamation No. 1102 x x x”; that Mr. Justice Antonio did not feel “that this
Court competent to act” in said cases “in the absence of any judicially discoverable and
manageable standards” and because “the access to relevant information is insufficient to assure
the correct determination of the issue,” apart from the
77
VOL. 50, MARCH 31, 1973 77

circumstance that “the new constitution has been promulgated and great interests have already
arisen under it” and that the political organ of the Government has recognized its provisions;
whereas, Mr. Justice Esguerra had postulated that “(w)ithout any competent evidence x x x about
the circumstances attending the holding” of the “referendum or plebiscite” thru the Citizens’
Assemblies, he “cannot say that it was not lawfully held” and that, accordingly, he assumed ”that
what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory
evidence” he could not “subscribe to the claim that such plebiscite was not held accordingly”; and
that he accepted “as a fait accompli that the Constitution adopted (by the 1971 Constitutional
Convention) on November 30, 1972, has been duly ratified.”
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these
circumstances, “it seems remote or improbable that the necessary eight (8) votes under the 1935
Constitution, and much less the ten (10) votes required by the 1972 (1973) Constitution, can be
obtained for the relief sought in the Amended Petition” in G.R. No. L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open
court, during the hearing of these cases, that he was and is willing to be convinced that his
aforementioned opinion in the plebiscite cases should be reconsidered and changed. In effect, he
thus declared that he had an open mind in connection with the cases at bar, and that in deciding
the same he would not necessarily adhere to said opinion if the petitioners herein succeeded in
convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935
Constitution, eight (8) votes are necessary to declare invalid the contested Proclamation No.
1102. I do not believe that this assumption is borne out by any provision of said Constitution.
Section 10 of Article VIII thereof reads:
“All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme
Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two thirds
of all the members of the Court.”
78


Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme
Court is required only to declare “treaty or law” unconstitutional. Construing said provision, in a
resolution dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of
the Members of this Court, postulated:
“x x x There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight
Justices to nullify a rule or regulation or an executive order issued by the President. It is very significant
that in the previous drafts of section 10, Article VIII of the Constitution, ‘executive order’ and
‘regulation’ were included among those that required for their nullification the vote of two-thirds of all the
members of the Court. But ‘executive order’ and ‘regulation’ were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of
this Court is enough to nullify them.”11
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government — the Executive and the
Legislative — is present, which circumstance is absent in the case of rules, regulations and
executive orders. Indeed, a law (statute) passed by Congress is subject to the approval or veto of
the President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all
members of each House of Congress.12 A treaty is entered into by the President with the
concurrence of the Senate,13 which is not required in the case of rules, regulations or executive
orders which are exclusive acts of the President. Hence, to nullify the same, a lesser number of
votes is necessary in the Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and
_______________
11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on Elections, L-28196 & L-28224,
Nov. 9, 1967. Emphasis ours.
12 Art. VI, sec. 20(1), Constitution.
13 Art. VII, sec. 10(7), Constitution.
79
VOL. 50, MARCH 31, 1973 79

executive orders issued by the President, the dictum applies with equal force to executive
proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same is
governed by section 63 of the Revised Administrative Code, which provides:
“Administrative acts and commands of the (Governor-General) President of the Philippines touching the
organization or mode of operation of the Government or rearranging or readjusting any of the districts,
divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands governing the
general performance of duties by public employees or disposing of issues of general concern shall be made
effective in executive orders.
“Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to (have)
effect and any information concerning matters of public moment determined by law, resolution, or executive
orders, may be promulgated in an executive proclamation, with all the force of an executive order.”14
In fact, while executive order embody administrative acts or commands of the President,
executive proclamations are mainly informative and declaratory in character, and so does counsel
for respondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-36165.15 As consequence, an
executive proclamation has no more than “the force of an executive order,” so that, for the
Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the
same number of votes needed to invalidate an executive order, rule or regulation — namely, six
(6) votes — would suffice.As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in the determination of the
question whether or not it is now in force, it is obvious that such question depends upon whether
or not the said new Constitution has been ratified in accordance with the requirements of the
1935 Constitution, upon the authority of which said Constitutional Convention was called and
approved the proposed Constitution.
_______________
14 Italics ours.
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
80

It is well settled that the matter of ratification of an amendment to the Constitution should be
settled by applying the provisions of the Constitution in force at the time of the alleged ratification,
or the old Constitution.16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and,
hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his main
defense. In support thereof, he alleges that “petitioners would have this Court declare as invalid
the New Constitution of the Republic” from which — he claims — “this Court now derives its
authority”; that “nearly 15 million of our body politic from the age of 15 years have mandated this
Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it
caution against interposition of the power of judicial review”; that “in the case of the New
Constitution, the government has been recognized in accordance with the New Constitution”;
that “the country’s foreign relations are now being conducted in accordance with the new
charter”; that “foreign governments have taken note of it”; that the “plebiscite cases” are “not
precedents for holding questions regarding proposal and ratification justiciable”; and that “to
abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty.”
At the outset, it is obvious to me that We are not being asked to “declare” the new Constitution
invalid. What petitioners dispute is the theory that it has been validly ratified by the people,
especially that they have done so in accordance with Article XV of the 1935 Constitution. The
petitioners maintain
_______________
16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist, 59 So. Rep. 963; McAdams v. Henley,
273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907; State ex rel. Landis, Atty. Gen. v.
Thompson, 163 So. Rep. 270; St. Louis Brewing Association v. Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18;
Johnson v. Craft, 87 So. Rep. 375.
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VOL. 50, MARCH 31, 1973 81

that the conclusion reached by the Chief Executive in the dispositive portion of Proclamation No.
1102 is not borne out by the whereases preceding the same, as the predicates from which said
conclusion was drawn; that the plebiscite or “election” required in said Article XV has not been
held; that the Chief Executive has no authority, under the 1935 Constitution, to dispense with
said election or plebiscite; that the proceedings before the Citizens’ Assemblies did not constitute
and may not be considered as such plebiscite; that the facts of record abundantly show that the
aforementioned Assemblies could not have been held throughout the Philippines from January 10
to January 15, 1973; and that, in any event, the proceedings in said Assemblies are null and void
as an alleged ratification of the new Constitution proposed by the 1971 Constitutional
Convention, not only because of the circumstances under which said Assemblies had been created
and held, but, also, because persons disqualified to vote under Article V of the Constitution were
allowed to participate therein, because the provisions of our Election Code were not observed in
said Assemblies, because the same were not held under the supervision of the Commission on
Elections, in violation of section 2 of Article X of the 1935 Constitution, and because the existence
of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to
discuss the merits and demerits of said proposed Constitution, impaired the people’s freedom in
voting thereon, particularly a viva voce, as it was done in many instances, as well as their ability
to have a reasonable knowledge of the contents of the document on which they were allegedly
called upon to express their views.
Referring now more specifically to the issue on whether the new Constitution proposed by the
1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV
of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer
must be in the negative. Indeed, such is the position taken by this Court,17 in
_______________
17 Mun. of 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 Lidasan
v. COMELEC,
82

an endless line of decisions, too long to leave any room for possible doubt that said issue is
inherently and essentially justiciable. Such, also, has been the consistent position of the courts of
the United States of America, whose decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned after that of the United States.
Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said
position, consistently with the form of government established under said Constitution.
Thus, in the aforementioned plebiscite cases,18 We rejected the theory of the respondents
therein that the question
_______________
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; Guevara 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; Mun. of
Naguilian v. NAWASA, L-18540, 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-Curing & 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 Office 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; Corominas, Jr. v. Labor Standards Commission, L-
14837, June 30, 1961; City of Baguio 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.
83
VOL. 50, MARCH 31, 1973 83

whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the
ratification or rejection of the proposed new Constitution, was valid or not, was not a proper
subject of judicial inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With identical unanimity, We
overruled the respondents’ contention in the 1971 habeas corpus cases,19 questioning Our
authority to determine the constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite
the opposite view taken by this Court in Barcelona v. Baker20 and Montenegro v.
Castañeda,21 insofar as it adhered to the former case, which view We, accordingly, abandoned
and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales
v. Commission on Elections,22 the political-question theory adopted in Mabanag v. Lopez
Vito.23 Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to
revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito.24
The reasons adduced in support thereof are, however, substantially the same as those given in
support of the 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
_______________
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.
84

aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are
justiciable, not political, is plain and simple. One of the principal bases of the non-justiciability of
so-called political questions is the principle of separation of powers — characteristic of the
Presidential system of government — the functions of which are classified or divided, by reason of
their nature, into three (3) categories, namely: 1) those involving the making of laws, which are
allocated to the legislative department; 2) those concerned mainly with the enforcement of such
laws and of judicial decisions applying and/or interpreting the same, which belong to the
executive department; and 3) those dealing with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives that are legally demandable and enforceable,
which are apportioned to courts of justice. Within its own sphere — but only within such sphere
— each department is supreme and independent of the others, and each is devoid of authority,
not only to encroach upon the powers or field of action assigned to any of the other departments,
but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures
taken or decisions made by the other departments — provided that such acts, measures or
decisions are within the area allocated thereto by the Constitution.25
This principle of separation of powers under the presidential system goes hand in hand with
the system of checks and balances, under which each department is vested by the Fundamental
Law with some powers to forestall, restrain or arrest a possible or actual misuse or abuse of
powers by the other departments. Hence, the appointing power of the Executive, his pardoning
power, his veto power, his authority to call the Legislature or Congress to special sessions and
even to prescribe or limit the object or objects of legislation that may be taken up in such
sessions, etc. Conversely, Congress or an agency or arm thereof — such as the Commission on
_______________
25 In re McConaughy, 119 N.W. 408, 417.
85
VOL. 50, MARCH 31, 1973 85

Appointments — may approve or disapprove some appointments made by the President. It, also,
has the power of appropriation, to “define, prescribe, and apportion the jurisdiction of the various
courts,” as well as that of impeachment. Upon the other hand, under the judicial power vested by
the Constitution, the “Supreme Court and x x x such inferior courts as may be established by
law,” may settle or decide with finality, not only justiciable controversies between private
individuals or entities, but, also, disputes or conflicts between a private individual or entity, on
the one hand, and an officer or branch of the government, on the other, or between two (2) officers
or branches of service, when the latter officer or branch is charged with acting without
jurisdiction or in excess thereof or in violation of law. And so, when a power vested in said officer
or branch of the government is absolute or unqualified, the acts in the exercise of such power are
said to be political in nature, and, consequently, non-justiciable or beyond judicial review.
Otherwise, courts of justice would be arrogating upon themselves a power conferred by the
Constitution upon another branch of the service to the exclusion of the others. Hence, in Tañada
v. Cuenco,26 this Court quoted with approval from In re McConaughy,27 the following:

“ ‘At the threshold of the case we are met with the assertion that the questions involved are political, and
not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board
would then be final, regardless of the actual vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General
that it would seem to be finally settled.
* * * *
“ ‘* * * What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government, with discretionary
power to
_______________
26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417.
86

act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470,
948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41,
37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine
whether it will pass law or submit a proposed constitutional amendment to the people. The courts have no
judicial control over such matters, not merely because they involve political questions, but because they are
matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise
the powers delegated him, free from judicial control, so long as he observes the laws act within the limits of
the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a
politics nature, but because the Constitution and laws have placed the particular matter under his
control. But every officer under constitutional government must act accordingly to law and subject its
restrictions, and every departure therefrom or disregard thereof must subject him to that restraining and
controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the
people act through courts, as well as through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. The recognition of this principle,
unknown except in Great Britain and America, is necessary, to “the end that the government may be one of
laws and not of men” — words which Webster said were the greatest contained in any written constitutional
document.” (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 “x x x 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.”
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Accordingly, when the grant of power is qualified, conditional or subject to limitations, the
issue on whether or not the prescribed qualifications or conditions have been met, or the
limitations respected, is justiciable or non-political, the crux of the problem being one of legality
or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations — particularly those prescribed or imposed by the Constitution — would be set at
naught. What is more, the judicial inquiry into such issue and the settlement thereof are
the main functions of courts of justice under the Presidential form of government adopted in our
1935 Constitution, and the system of checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the discretion to decline passing upon said issue,
but are under the ineluctable obligation — made particularly more exacting and peremptory by
our oath, as members of the highest Court of the land, to support and defend the Constitution —
to settle it. This explains why, in Miller v. Johnson,28 it was held that courts have a “duty, rather
than a power,” to determine whether another branch of the government has “kept within
constitutional limits.” Not satisfied with this postulate, the court went farther and stressed that,
if the Constitution provides how it may be amended — as it is in our 1935 Constitution —
“then, unless the manner is followed, the judiciary as the interpreter of that constitution, will
declare the amendment invalid.”29 In fact, this very Court — speaking through Justice Laurel, an
outstanding authority on Philippine Constitutional Law, as well as one of the highly respected
and foremost leaders of the Convention that drafted the 1935 Constitution — declared, as early
as July 15, 1936, that “(i)n times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In
cases of conflict, the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments” of the
government.30
_______________
28 92 Ky. 589, 18 S.W. 522, 523.
29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tufly, 19 Nev. 391, 12 Pac.
Rep. 835.
30 Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
88


The Solicitor General has invoked Luther v. Borden31 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 filed by Luther with the Circuit Court of the
United States against Borden and others for having forcibly entered into Luther’s house, in
Rhode Island, sometime in 1842. The defendants who were in the military service of said former
colony of England, alleged in their defense that they had acted in obedience to the commands of a
superior officer, because Luther and others were engaged in a conspiracy to overthrow the
government by force and the state had been placed by competent authority under Martial Law.
Such authority was the charter government of Rhode Island at the time of the Declaration of
Independence, for — unlike other states which adopted a new Constitution upon secession from
England — Rhode Island retained its form of government under a British Charter, making only
such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent
condition as an independent state. It was under this form of government when Rhode Island
joined other American states in the Declaration of Independence and, by subsequently ratifying
the Constitution of the United States, became a member of the Union. In 1843, it adopted a new
Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government.
Memorials addressed by them to the Legislature having failed to bring about the desired effect,
meetings were held and associations formed — by those who belonged to this segment of the
population — which eventually resulted in a convention called for the drafting of a new
Constitution to be submitted to the people for their adoption or rejection. The convention
was not authorized by any law of the existing government. The delegates to such convention
framed a new Constitution which
_______________
31 12 L. ed. 581 (1849).
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VOL. 50, MARCH 31, 1973 89

was submitted to the people. Upon the return of the votes cast by them, the convention declared
that said Constitution had been adopted and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the state,
contested, however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr,
who had been elected governor under the new Constitution of the rebels, prepared to assert
authority by force of arms, and many citizens assembled to support him. Thereupon, the charter
government passed an Act declaring the state under Martial Law and adopted measures to repel
the threatened attack and subdue the rebels. This was the state of affairs when the defendants,
who were in the military service of the charter government and were to arrest Luther, for
engaging in the support of the rebel government — which was never able to
exercise any authority in the state — broke into his house.
Meanwhile, the charter government had taken measures to call its own convention to revise
the existing form of government. Eventually, a new constitution was drafted by a convention held
under the authority of the charter government, and thereafter was adopted and ratified by the
people. “(T)he times and places at which the votes were to be given, the persons who were to
receive and return them, and the qualifications of the voters having all been previously
authorized and provided for by law passed by the charter government,” the latter formally
surrendered all of its powers to the new government, established under its authority, in May
1843, which had been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an
unsuccessful attempt to take possession of the state arsenal in Providence, but he was repulsed,
and, after an “assemblage of some hundreds of armed men under his command at Chepatchet in
the June following, which dispersed upon approach of the troops of the old
government, no further effort was made to establish” his government. “x x x until the
Constitution of 1843” — adopted under the auspices of the charter government — “went into
90

operation, the charter government continued to assert its authority and exercise its powers and
to enforce obedience throughout the state x x x.”
Having offered to introduce evidence to prove that the constitution of the rebels had been
ratified by the majority of the people, which the Circuit Court rejected, apart from rendering
judgment for the defendants, the plaintiff took the case for review to the Federal Supreme Court
which affirmed the action of the Circuit Court, stating:

“It is worthy of remark, however, when we are referring to the authority of State decisions, that the trial
of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who decided
that case held their authority under that constitution and it is admitted on all hands that it was adopted by
the people of the State, and is the lawful and established government. It is the decision, therefore, of a State
court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by
either party to this controversy, although the government under which it acted was framed and adopted
under the sanction and laws of the charter government.
“The point, then, raised here has been already decided by the courts of Rhode Island. The question relates,
altogether, to the constitution and laws of that State, and the well settled rule in this court is, that the courts
of the United States adopt and follow the decisions of the State courts in questions which concern merely the
constitution and laws of the State.
“Upon what ground could the Circuit Court of the United States which tried this case have departed from
this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts
of the United States have certain powers under the Constitution and laws of the United States which do not
belong to the State courts. But the power of determining that a State government has been lawfully
established, which the courts of the State disown and repudiate, is not one of them. Upon such a question the
courts of the United States are bound to follow the decisions of the State tribunals, and must therefore regard
the charter government as the lawful and established government during the time of this contest.32
_______________
32 Luther v. Borden, supra, p. 598. Italics ours.
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It is thus apparent that the context within which the case of Luther v. Borden was decided is
basically and fundamentally different from that of the cases at bar. To begin with, the case did
not involve a federal question, but one purely municipal in nature. Hence, the Federal Supreme
Court was “bound to follow the decisions of the State tribunals” of Rhode Island upholding the
constitution adopted under the authority of the charter government. Whatever else was said in
that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that rendered
by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union
have a measure of internal sovereignty upon which the Federal Government may not encroach,
whereas ours is a unitary form of government, under which our local governments derive their
authority from the national government. Again, unlike our 1935 Constitution, the charter or
organic law of Rhode Island contained no provision on the manner, procedure or conditions for its
amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition
of government, than on recognition of constitution, and there is a fundamental difference between
these two (2) types of recognition, the first being generally conceded to be a political question,
whereas the nature of the latter depends upon a number of factors, one of them being whether
the new Constitution has been adopted in the manner prescribed in the Constitution in force at
the time of the purported ratification of the former, which is essentially a justiciable question.
There was, in Luther v. Borden, a conflict between two (2) rival governments, antagonistic to each
other, which is absent in the present cases. Here, the Government established under the 1935
Constitution is the very same government whose Executive Department has urged the adoption
of the new or revised Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in
1849, on matters other than those referring to its power to review decisions of a state court
concerning the constitution and government of that state, not the Federal Constitution or
Government, are manifestly neither
92

controlling, nor even persuasive in the present cases, having as the Federal Supreme Court
admitted — no authority whatsoever to pass upon such matters or to review decisions of said
state court thereon. In fact, referring to that case, the Supreme Court of Minnessota had the
following to say:
“Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have no
power to determine questions of a political character. It is interesting historically, but it has not the
slightestapplication to the case at bar. When carefully analyzed, it appears that it merely determines that
the federal courts will accept as final and controlling a decision of the highest court of a state upon a question
of the construction of the Constitution of the state. x x x.33
Baker v. Carr,34 cited by respondents, involved an action to annul a Tennessee statute

apportioning the seats in the General Assembly among the counties of the State, upon the theory
that the legislation violated the equal protection clause. A district court dismissed the case upon
the ground, among others, that the issue was a political one, but, after a painstaking review of
the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and
held that said issue was justiciable and non-political, inasmuch as: “x x x (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 x x x.”
Similarly, in Powell v. McCormack,35 the same Court, speaking through then Chief Justice
Warren, reversed a decision of the Court of Appeals of New York affirming that of a Federal
District Court, dismissing Powell’s action for a declaratory judgment declaring thereunder that
he — whose qualifications were uncontested — had been unlawfully excluded from the 90th
Congress of the U.S. Said dismissal
_______________
33 In re McConaughy, supra, p. 416. Italics ours.
34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
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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. x x x.”36
In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes
the method or procedure for its amendment, it is clear to my mind that the question whether or
not the revised Constitution drafted by the 1971 Constitutional Convention has been ratified in
accordance with said Art. XV is a justiciable one and non-political in nature, and that it is not
only subject to judicial inquiry, but, also, that it is the Court’s bounden duty to decide such
question.
The Supreme Court of the United States has meaningfully postulated that “the
courts cannot reject as ‘no law suit’ ” — because it allegedly involves a political question — “a
bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional
authority.”37
_______________
36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as to the uniformity of authorities on the
matter has been reiterated in Winget v. Holm, 244 N.W. 329, 332.
37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691.
94

III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the
1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President “is
without authority to create the Citizens’ Assemblies” through which, respondents maintain, the
proposed new Constitution has been ratified; 2) that said Assemblies “are without power to
approve the proposed Constitution”; 3) that the President “is without power to proclaim the
ratification by the Filipino people of the proposed Constitution”; and 4) that “the election held (in
the Citizens’ Assemblies) to ratify the proposed Constitution was not a free election, hence null
and void.”
Apart from substantially reiterating these grounds support of said negative view, the
petitioners in L-36164 contend: 1) that the President “has no power to call a plebiscite for the
ratification or rejection” of the proposed new Constitution or “to appropriate funds for the holding
of the said plebiscite”; 2) that the proposed new or revised Constitution “is vague and incomplete,”
as well as “contains provisions which are beyond the powers of the 1971 Convention to enact,”
thereby rendering it “unfit for x x x submission the people”; 3) that “(t)he period of time between
November 1972 when the 1972 draft was approved and January 11-15, 1973,” when the Citizens’
Assemblies supposedly ratified said draft, “was too short, worse still, there was practically no
time for the Citizens’ Assemblies to discuss the merits of the Constitution which the majority of
them have not read a which they never knew would be submitted to them ratification until they
were asked the question — “do you approve of the New Constitution?” during the said days of the
voting”; and that “(t)here was altogether no freedom discussion and no opportunity to concentrate
on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens’
Assemblies for ratification.”
Petitioner in 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
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Constitution to the people”; and 2) Proclamation No. 1102 is null and void “(i)nasmuch as the
ratification process” prescribed “in the 1935 Constitution was not followed.”
Besides adopting substantially some of the grounds relied upon by the petitioners in the above-
mentioned cases, the petitioners in L-36283 argue that “(t)he creation of the Citizens’ Assemblies
as the vehicle for the ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to either February 19
or March 5, 1973.”38
The reasons adduced by the petitioners in L-36165 in favor of the negative view have already
been set forth earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is,
with respect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat
and Jose Roy — although more will be said later about them — and by the Solicitor General, on
behalf of the other respondents in that case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1. That the amendments to the Constitution be proposed either by Congress or by a convention
called for that purpose, “by a vote of three-fourths of all the Members of the Senate and the
House of Representatives voting separately,” but “in joint session assembled”;
2. That such amendments be “submitted to the people for their ratification” at an “election”;
and
3. That such amendments be “approved by a majority of the votes cast” in said election.
Compliance with the first requirement is virtually conceded,
_______________
38 See p. 5 of the Petition.
96

although the petitioners in L-36164 question the authority of the 1971 Constitutional Convention
to incorporate certain provisions into the draft of the new or revised Constitution. The main issue
in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have
been complied with.
2. Has the contested draft of the new or revised Constitution been submitted to the people for
their ratification conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning “elections” must, also,
be taken into account, namely, section I of Art. V and Art. X of said Constitution. The former
reads:
“Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by
law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in
the Philippines for one year and in the municipality wherein they propose to vote for at least six months
preceding the election. The National Assembly shall extend the right of suffrage to women, if in a plebiscite
which shall be held for that purpose within two years after the adoption of this Constitution, not less than
three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the
question.”
Sections 1 and 2 of Art. X of the Constitution ordain in part:

“Section 1. There shall be an independent Commission on Elections composed of a Chairman and two
other Members to be appointed by the President with the consent of the Commission on Appointments, who
shall hold office for a term of nine years and may not be reappointed. ...
“xxx xxx xxx
“Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and administration
of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred
upon it by law. It shall decide, save those involving the right to vote, all administrative questions, affecting
elections, including the determination of the number and location of polling places, and the appointment of
election inspectors and of other election officials. All law enforcement agencies and
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instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the
purpose of insuring fee, orderly, and honest elections. The decisions, orders, and rulings of the Commission
shall be subject to review by the Supreme Court.
“xxx xxx xxx”39

a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the
exercise of the right of suffrage. They claim that no other persons than “citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and are able to read
and write, and who shall have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the election,” may exercise the
right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said
provision merely guarantees the right of suffrage to persons possessing the aforementioned
qualifications and none of the disqualifications, prescribed by law, and that said right may be
vested by competent authorities in persons lacking some or all of the aforementioned
qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he
invokes the permissive nature of the language — “(s)uffrage may be exercised” — used in section
1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No.
3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines “eighteen
years of age or over,” who are registered in the list of barrio assembly members, shall be members
thereof and may participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General’s theory. Art. V of the Constitution declares who may
exercise the right of suffrage, so that those lacking the qualifications therein prescribed
may not exercise such right. This view is borne out by the records of
_______________
39 Italics ours.
98

the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of
the 1935 Constitution was largely based on the report of the committee on suffrage of the
Convention that drafted said Constitution which report was, in turn, “strongly influenced by the
election laws then in force in the Philippines x x x.”40 Said committee had recommended: 1) “That
the right of suffrage should exercised only by male citizens of the Philippines.” 2) “That should
be limited to those who could read and write.” 3) “That the duty to vote should be
made obligatory.” It appears that the first recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of
Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly
established by the original Constitution — instead of the bicameral Congress subsequently
created by amendment said Constitution — the duty to “extend the right of suffrage women, if in
a plebiscite to, be held for that purpose within two years after the adoption of this Constitution,
not less than three hundred thousand women possessing the necessary qualifications shall vote
affirmatively on the question.”41
The third recommendation on “compulsory” voting was, also debated upon rather extensively,
after which it was rejected by the Convention.42 This accounts, in my opinion, for the permissive
language used in the first sentence of said Art. V. Despite some debates on the age qualification
— amendment having been proposed to reduce the same to 18 or 20, which were rejected, and the
residence qualification, as well as the disqualifications to the exercise of the right of suffrage —
the second recommendation limiting the right of suffrage to those who could “read and write” was
— in the language of Dr. Jose M. Aruego, one of the Delegates to said Convention — “readily
approved in the Convention without any dissenting vote,” although there was some debate on
whether the Fundamental Law should specify the language or dialect that the voter could
_______________
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.
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read and write, which was decided in the negative.43
What is relevant to the issue before Us is the fact that the constitutional provision under
consideration was meant to be and is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned, which in turn, constitute
a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant — and, in this sense only, may the same partake of the
nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law
allows Congress or anybody else to vest in those lacking the qualifications and having the
disqualifications mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption
of section 1 of Art. V of the Constitution was “strongly influenced by the election laws then in
force in the Philippines.” Our first Election Law was Act 1582, passed on January 9, 1907, which
was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative
Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1917
— Act 2711 — as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on
December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below.44 In all of these legislative
acts, the provisions concerning the qualifications of voters partook of the nature of a grant or
recognition of the right of suffrage, and, hence, of a
_______________
43 Id., pp. 224-227.
44 SEC. 431. Qualifications prescribed for voters. — Every male person who is not a citizen or subject of a foreign
power, twenty-one years of age or over, who shall have been a resident of the Philippines for one year and of the
municipality in which he shall offer to vote for six months next preceding the day of voting is entitled to vote in all
elections if comprised within either of the
100

denial thereof to those who lacked the requisite qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt
than the same conferred — not guaranteed — the authority to persons having the qualifications
prescribed therein and none of disqualifications to be specified in ordinary laws and, necessary
implication, denied such right to those lacking any said qualifications, or having any of the
aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the
submission to a plebiscite of a “partial amendment” to said section 1 of Art. V of the 1935
Constitution, by reducing the voting age from
_______________
following three classes:
“(a) Those who, under the laws in force in the Philippine Islands upon the twenty-eighth day of August, nineteen
hundred and sixteen, were legal voters and had exercised the right of suffrage.
“(b) Those who own real property to the value of five hundred pesos, declared in their name for taxation purposes for a
period not less than one year prior to the date of the election, or who annually pay thirty pesos or more of the established
taxes.
“(c) Those who are able to read and write either Spanish, English, or a native language.
“SEC. 432. Disqualifications. — The following persons shall be disqualified from voting:
“(a) Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight, has been sentenced by
final judgment to suffer not less than eighteen months of imprisonment, such disability not having been removed by
plenary pardon.
“(b) Any person who has violated an oath of allegiance taken by him to the United States.
“(c) Insane or feeble-minded persons.
“(d) Deaf-mutes who cannot read and write.
“(e) Electors registered under subsection (c) of the next preceding section who, after failing to make a sworn statement
to the satisfaction of the board of inspectors at any of its two meetings for registration and revision, that they are
incapacitated preparing their ballots due to permanent physical disability, present themselves at the hour of voting as
incapacitated, irrespective whether such incapacity be real or feigned.”
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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,45 granting the writs, of
prohibition and injunction therein applied for, upon the ground that, under the Constitution, all
of the amendments adopted by the Convention should be submitted in “an election” or a single
election, not separately or in several or distinct elections, and that the proposed amendment
sought to be submitted to a plebiscite was not even a complete amendment, but a “partial
amendment” of said section 1, which could be amended further, after its ratification, had the same
taken place, so that the aforementioned partial amendment was, for legal purposes, no more than
a provisional or temporary amendment. Said partial amendment was predicated upon the
generally accepted contemporary construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of suffrage, without a previous
amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies may
vote in barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be
a conflict between the last paragraph of said section 6 of Rep. Act No. 3590,46 pursuant to which
the “majority vote of all the barrio assembly members” (which include all barrio residents 18
years of age or over, duly registered in the list of barrio assembly members) is necessary for the
approval, in an assembly plebiscite, of “any budgetary, supplemental appropriations or special
tax ordinances,” whereas, according to the paragraph preceding the penultimate one of said
section,47 ”(a)ll duly registered barrio assembly
_______________
45 L-34150, October 16 and November 4, 1971.
46 “For taking action on any of the above enumerated measures, majority vote of all the barrio
assembly members registered in the list of the barrio secretary is necessary.”
47 “All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be
made either in writing as in regular elections, and/or declaration by the voters to the board of election tellers. The board of
election tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body,
the barrio council may fill the same.”
102

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 the barrio
“during the six months immediately preceding election, duly registered in the list of voters” and “
otherwise disqualified x x x” — just like the provisions of present and past election codes of the
Philippines and Art. V of the 1935 Constitution — “may vote in the plebiscite.”
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old
members of the assembly, not only because this interpretation is in accord with Art. V the
Constitution, but, also, because provisions of a Constitution — particularly of a written and rigid
one, like ours generally accorded a mandatory status — unless the intention to the contrary is
manifest, which is not so as regards said Art. V — for otherwise they would not have been
considered sufficiently important to be included in the Fundamental Law of the land.48 Besides, it
would be illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands — in addition to favorable action of the barrio
council — the approval of barrio assembly through aplebiscite, lesser qualifications than those
prescribed in dealing with ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of
Art. V thereof to apply only to elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and
permit the legislature to require lesser qualifications for such ratification, notwithstanding the
fact that the object thereof much more important — if not fundamental, such as the basic changes
introduced in the draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force permanently, or, at least, for many
_______________
48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071; Ellingham v. Dye (1912), 178
Ind. 336, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W. 419.
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VOL. 50, MARCH 31, 1973 103
decades, and to affect the way of life of the nation — and, accordingly, demands greater
experience and maturity on the part of the electorate than that required for the election of public
officers,49 whose average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether
or not they possessed the other qualifications laid down in both the Constitution and the present
Election Code,50 and of whether or not they are disqualified under the provisions of said
Constitution and Code,51 or those of Republic Act No. 3590,52 have participated
_______________
49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that “when a state constitution enumerates
and fixes the qualifications of those who may exercise the right of suffrage, the legislature cannot take from nor add to said
qualifications unless the power to do so is conferred upon it by the constitution itself.”
Since suffrage, according to Webster, is a voice given not only in the choice of a man for an office or trust, but, also, in
deciding a controverted question, it follows, considering the said ruling in Alcantara, that the constitutional qualifications
for voters apply equally to voters in elections to public office and to voters in a plebiscite.
Similarly, the Revised Election Code provides in its section 2 that all elections of public officers by the people and all
votings in connection with plebiscites shall be conducted in conformity with the provisions of said Code.
50 Republic Act No. 6388, section 101 of which, in part, provides:
“SEC. 101. Qualifications prescribed for a voter.—Every citizen of the Philippines, not otherwise disqualified by law,
twenty-one years of age or over, able to read and write, who shall have resided in the Philippines for one year and in the
city, municipality or municipal district wherein he proposes to vote for at least six months immediately preceding the
election, may vote at any election.
“xxx xxx xxx.”
51 “SEC. 102. Disqualifications.—The following persons shall not be qualified to vote:
“(a) Any person who has been sentenced by final judgment to suffer an imprisonment of not less than one year, such
disability not having been removed by plenary pardon: Provided, however, That any person disqualified to vote under this
paragraph shall
104

and voted in the Citizens’ Assemblies that have allegedly ratified the new or revised Constitution
drafted by the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of registered voters 21 years of
age or over in the entire Philippines, available in January 1973, was less than 12 million. Yet,
Proclamation No. 1102 states that 14,976,56 “members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as against x x x 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, “x x x 14,298,814 answered that there was
no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite.” In other words, it is conceded that the number of people who
allegedly voted at the Citizens’ Assemblies for exceeded the number of registered voters under the
Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens’ Assemblies — and We have more to
say on this point in subsequent pages — were fundamentally irregular, in that persons lacking
the qualifications prescribed in section 1 of
_______________
automatically reacquire the right to vote upon expiration of ten years after service of sentence unless during such period,
he shall have been sentenced by final judgment to suffer an imprisonment of not less than one year.
“(b) Any person who has been adjudged by final judgment by competent court of having violated his allegiance to the
Republic of the Philippines.
“(c) Insane or feeble-minded persons.
“(d) Persons who cannot prepare their ballots themselves.”
52 “SEC. 10. x x x
“The following persons shall not be qualified to vote:
“a. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment, within two years
after service of his sentence;
“b. Any person who has violated his allegiance to the Republic of the Philippines; and
“c. Insane or feeble-minded persons.”

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VOL. 50, MARCH 31, 1973 105

Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means
by which the invalid votes of those less than 21 years of age can be separated or segregated from
those of the qualified voters, the proceedings in the Citizens’ Assemblies must be considered null
and void.53
It has been held that “(t)he power to reject an entire poll x x x should be exercised x x x 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 x x x.”54
In Usman v. Commission on Elections, et al.,55 We held:
“Several circumstances, defying exact description and dependent mainly on the factual milieu of the
particular controversy, have the effect of destroying the integrity and authenticity of disputed election
returns and of avoiding their prima facie value and character. If satisfactorily proven, although in a
summary proceeding, such circumstances as alleged by the affected or interested parties, stamp the election
returns with the indelible mark of falsity and irregularity, and, consequently, of unreliability, and justify
their exclusion from the canvass.”
Then, too, the 1935 Constitution requires “a majority of the votes cast” for a proposed
amendment to the Fundamental Law to be “valid” as part thereof, and the term “votes cast” has a
well-settled meaning.

“The term ‘votes cast’ x x x was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn.
16, to have been used as an equivalent of ‘ballots cast.’ ”56“The word ‘cast’ is defined as ‘to deposit formally or
officially.’ ”57
_______________
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.

106


“It seems to us that a vote is cast when a ballot is deposited indicating a ‘choice.’ x x x The word “cast”
means “deposit (a ballot) formally or officially x x x.’
“x x x In simple words, we would define a ‘vote cast’ as the exercise on a ballot of the choice of the voter on
the measure proposed.”58
In short, said Art. XV envisages — with the term “votes cast” — choices made on ballots — not
orally or by raising — by the persons taking part in plebiscites. This is but natural and logical,
for, since the early years of the American regime, we had adopted the Australian Ballot System,
with its major characteristics, namely, uniform official ballots prepared and furnished by the
Government and secrecy in the voting, with the advantage of keeping records that permit judicial
inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens’ Assemblies
was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential
requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof,
particularly its sections 1 and 2. Indeed, section 1 provides that “(t)here shall be
an independent Commission on Elections x x x.” The point to be stressed here is the term
“independent.” Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission,
would it have been depends upon either Congress or the Judiciary? The answer must be the
negative, because the functions of the Commission — “enforcement and administration” of
election laws — are neither legislative nor judicial in nature, and, hence, beyond
_______________
58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.
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VOL. 50, MARCH 31, 1973 107

the field allocated to either Congress or courts of justice. Said functions are by their nature
essentially executive, for which reason, the Commission would be under the “control” of the
President, pursuant to section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof
did not explicitly declare that it (the Commission) is an “independent” body. In other words, in
amending the original 1935 Constitution, by inserting therein said Art. X, on the Commission on
Elections, the purpose was to make said Commission independent principally of the Chief
Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections
as a constitutional organ, election laws in the Philippines were enforced by the then Department
of the Interior, through its Executive Bureau, one of the offices under the supervision and control
of said Department. The same — like other departments of the Executive Branch of the
Government — was, in turn, under the control of the Chief Executive, before the adoption of the
1935 Constitution, and had been — until the abolition of said Department, sometime ago —
under the control of the President of the Philippines, since the effectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of control over the
Department of the Interior and its Executive Bureau as to place the minority party at such a
great, if not decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat the
political party in power, and, hence, to enable the same to perpetuate itself therein. To forestall
this possibility, the original 1935 Constitution was amended by the establishment of the
Commission on Elections as a constitutional body independent primarily of the President of the
Philippines.
The independence of the Commission was sought to be strengthened by the long term of office
of its members — nine (9) years, except those first appointed59 — the longest under the
Constitution, second only to that of the Auditor General60; by
_______________
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
108

providing that they may not be removed from office except by impeachment, placing them, in this
respect, on the same plane as the President, the Vice-President, the Justices of the Supreme
Court and the Auditor General; that they may not be reappointed; that their salaries, “shall be
neither increased nor diminished during their term of office”; that the decisions the Commission
“shall be subject to review by the Supreme Court” only61; that “(n)o pardon, parole, or suspension
sentence for the violation of any election law may be granted without the favorable
recommendation of the Commission”62; and, that its chairman and members “shall not, during
the continuance in office, engage in the practice of any profession or intervene, directly or
indirectly, in the management or control of any private enterprise which in anyway may affected
by the functions of their office; nor shall they, directly or indirectly, be financially interested in
any contract with the Government or any subdivision or instrumentality thereof.”63 Thus, the
framers of the amendment to the original Constitution of 1935 endeavored to do everything
possible protect and insure the independence of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that “(t)he
Commission on Elections shall have exclusive charge of the enforcement and administration all
laws relative to the conduct of elections,” apart from such other “functions which may be
conferred upon it by law.” It further provides that the Commission “shall decide, save those
involving the right to vote, all administrative question affecting elections, including the
determination of the number and location of polling places, and the appointment of election
inspectors and of other election officials.” And, to forests possible conflicts or frictions between the
Commission, on one hand, and the other offices or agencies of the executive department, on the
other, said section 2 postulates that “(a)ll law enforcement agencies and instrumentalities of the
Government, when so required by the Commission, shall act as
_______________
62 Ibid.
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VOL. 50, MARCH 31, 1973 109

its deputies for the purpose of insuring free, orderly, and honest elections.” Not satisfied with this,
it declares, in effect, that “(t)he decisions, orders, and ruling of the Commission” shall not be
subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388,
otherwise known as the Election Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below.64 Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other
_______________
64 “SEC. 5. Organization of the Commission on Elections.—The Commission shall adopt its own rules of procedure.
Two members of the Commission shall constitute a quorum. The concurrence of two members shall be necessary for the
pronouncement or issuance of a decision, order or ruling.
“The Commission shall have an executive and such other subordinate officers and employees as may be necessary for
the efficient performance of its functions and duties, all of whom shall be appointed by the Commission in accordance with
the Civil Service Law and rules.
“The executive officer of the Commission, under the direction of the Chairman, shall, have charge of the administrative
business of the Commission, shall have the power to administer oaths in connection with all matters involving the
business of the Commission, and shall perform such, other duties as may he required of him by the Commission.
“SEC. 6. Power of the Commission to Investigate and to Hear Controversy and Issue Subpoena.—The Commission or
any of the members thereof shall, in compliance with the requirement of due process, have the power to summon the
parties to a controversy pending before it, issue subpoenae and subpoenae duces tecum and otherwise take testimony in
any investigation or hearing pending before it, and delegate such power to any officer of the Commission who shall be a
member of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon proof of service of
the subpoenae to said witness, may issue a warrant to arrest the witness land bring him before the Commission or officer
before whom his attendance is required. The Commission shall have the power to punish contempts provided for in the
Rules of Court under the same
110

(corrupt) practices; the establishment of election precincts; the designation and arrangement of
polling places, including voting booths, to protect the secrecy of the ballot; formation of lists of
voters, the identification and registration of voters, the proceedings therefor, as well as for the
inclusion in, or exclusion or cancellation from said list and the publication thereof; the
establishment of municipal, provincial and files of registered voters; the composition and
appointment of board of election inspectors; the particulars of the official ballots to be used and
the precautions to be taken to insure authenticity thereof; the procedure for the casting of votes;
the counting of votes by boards of inspectors; the rules for the appreciation of ballots and the
preparation and disposition of election returns; the constitution and operation of municipal,
provincials and national boards of canvassers; the presentation of the political parties and/or
their candidates in each election precinct; the proclamation of the results, including, in the case of
election of public officers, election contests; and the jurisdiction of courts of justice in cases of
violation of the provisions of said Election Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at
“insuring free, orderly, and honest election,” as envisaged in section 2 of Art. X of the
Constitution. Yet, none of the foregoing constitutional and statutory provisions was followed by
the so-called Barangays or Citizens’ Assemblies. And no reasons have been given, or
_______________
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, deputized any member of any national or local law enforcement agency
and/or instrumentality of the government to execute under its direct and immediate supervision any of its final decisions,
orders, instructions or rulings.
“Any decision, order or ruling of the Commission on election controversies may be reviewed by the Supreme Court by
writ of a certiorari in accordance with the Rules of Court or such applicable laws as may enacted.
“Any violation of any final executory decision, order or ruling of the Commission shall constitute contempt thereof.”
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VOL. 50, MARCH 31, 1973 111

even sought to be given therefor. In many, if not most, instances, the election were held a viva
voce, thus depriving the electorate of the right to vote secretly — one of the most, fundamental
and critical features of our election laws from time immemorial — particularly at a time when the
same was of utmost importance, owing to the existence of Martial Law.
In Glen v. Gnau,65 involving the casting of many votes, openly, without complying with the
requirements of the law pertinent thereto, it was held that the “election officers” involved “cannot
be too strongly condemned” therefor and that if they “could legally dispense with such
requirement ... they could with equal propriety dispense with all of them, including the one that
the vote shall be by secret ballot, or even by ballot at all x x x.”
Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted
by the 1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on
the validity of which — which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases66 — We need not, in the case of bar, express any opinion) was issued, calling a
plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be
submitted to the people for ratification or rejection; directing the publication of said proposed
Constitution; and declaring, inter alia, that “(t)he provision of the Election Code of 1971, insofar
as they are not inconsistent” with said decree — excepting those “regarding right and obligations
of political parties and candidates” — “shall apply to the conduct of the plebiscite.” Indeed,
section 2 of said Election Code of 1971 provides that “(a)ll elections of public officers except barrio
officials and plebiscites shall be
_______________
65 64 S.W. 2d. 168.
66 L-35538, Roses, 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 Doronila, et al. v. Secretary of National Defense, et al.; L-35573, Randon v. Hon. Enrile, et
al.
112

conducted in the manner provided by this Code.” General Order No. 20, dated January 7, 1973,
postponing until further notice, “the plebiscite scheduled to be held on January 15, 1973,” said
nothing about the procedure to be followed in plebiscite to take place at such notice, and no other
order or decree has been brought to Our attention, expressly or impliedly repealing the provisions
of Presidential Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended “the provisions of
Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion of proposed
Constitution x x x temporarily suspending effects of Proclamation No. 1081 for the purposes of
free open debate on the proposed Constitution x x x.” This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No. 20 necessarily implies
that all other portions of said decrees, orders or instructions — and, hence, the provisions of
Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification
or rejection of the proposed Constitution — remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted
below67 — the Executive declared,
_______________
67 “PRESIDENTIAL DECREE NO. 86-A
“STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
“WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays (citizens
assemblies) have so far been established, the people would like to decide themselves questions or issues, both local and
national, affecting their day to day lives and their future.
“WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for 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
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VOL. 50, MARCH 31, 1973 113

inter alia, that the collective views expressed in the Citizens’ Assemblies “shall
be considered in the formulation of national policies or programs and, wherever practicable, shall
be translated into concrete and specific decision”; that such Citizens’ Assemblies “shall consider
vital national issues x x x like the holding of the plebiscite on the new Constitution x x x 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
_______________
conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution,
continuance of martial law, the convening of Congress on January 22, 1973, and the elections in November 1973 pursuant
to the 1935 Constitution.
“NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me
by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines, do hereby declare as part of the law of
the land the following.
“1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated December 31, 1972,
shall constitute the base for citizen participation in governmental affairs and their collective views shall be considered in
the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific
decision;
“2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country, like the
holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January
22, 1973, and the holding of elections in November 1973, and others in the future, which shall serve as guide or basis for
action or decision by the national government;
“3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a referendum on important
national issues, including those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local
Governments and Community Development immediately thereafter, pursuant to the express will of the people as
reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country.
“4. This Decree shall take effect immediately.
“Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and seventy-three.”
(Italics ours.)
114

those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local
Governments and Community Development immediately thereafter, x x x.” 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 Art.
V of the 1935 Constitution. The provision of Decree No. 86-A directing the immediate submission
of the result thereof to the Department of Local Governments Community Development is not
necessarily inconsistent with, and must be subordinate to the constitutional power of the
Commission on Elections to exercise its “exclusive authority over the enforcement and
administration of all laws to the conduct of elections,” if the proceedings in the Assemblies would
partake of the nature of an “election” or plebiscite for the ratification or rejection of the proposed
Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No.
86-B, dated 1973, ordering “that important national issues shall from time to time; be referred to
the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No.
86-A dated January 5, 1973 and that the initial referendum include the matter of ratification of
the Constitution by the 1971 Constitutional Convention” and that “(t)he Secretary of the
Department of Local Governments and Community Development shall insure the
implementation of this order.” As in the case of Presidential Decrees Nos. 86 and 86-A, the
foregoing directives do not necessarily exclude exercise of the powers vested by the 1935
Constitution in the Commission on Elections, even if the Executive had the authority to repeal
Art. X of our Fundamental Law — which he does not possess. Copy of Presidential Decree No. 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
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VOL. 50, MARCH 31, 1973 115

No. 73. What is more, they were held under the supervision of the very officers and agencies of the
Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse
still, said officers and agencies of the 1935 Constitution would be favored thereby, owing to the
practical indefinite extension of their respective terms of office in consequence of section 9 of the
Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections
therefor. And the procedure therein mostly followed is such that there is no reasonable means of
checking the accuracy of the returns files by the officers who conducted said plebiscites. This is
another patent violation of Art. of the Constitution which can hardly be sanctioned. And, since
the provisions of this article form part of the fundamental scheme set forth in the 1935
Constitution, as amended, to insure the “free, orderly, and honest” expression of the people’s will,
the aforementioned violation thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens’ Assemblies, insofar as the same are claimed to have ratified the revised
Constitution proposed by the 1971 Constitutional Convention. “x x x (a)ll the authorities
agree that the legal definition of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or as election by those having a right to participate (in the
selection) of those who shall fill the offices, or of the adoption or rejection of any public measure
affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders
v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v.
Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier’s Law Dictionary.68
_______________
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Italics ours.
116

IV
Has the proposed Constitution aforementioned been approved by a majority of the people
in Citizens’ Assemblies allegedly held throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of
which is precisely being contested by petitioners herein. Respondents claim that said
proclamation is “conclusive” upon this Court, or is, at least, entitled to full faith and credence, as
an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by
the “overwhelming” majority of the people; that Art. XV of the 1935 Constitution has thus been
“substantially” complied with; and that the Court refrain from passing upon the validity of
Proclamation No. 1102, not only because such question is political in nature, but, also, because
should the Court invalidate the proclamation, the former would, in effect, veto the action of the
people in whom sovereignty resides and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a fact, the very premise
on which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme
Court of Minnessota has aptly put it —
“x x x every officer under a constitutional government must act according to law and subject to its
restrictions, and every departure therefrom or disregard thereof must subject him to the restraining and
controlling of the people, acting through the agency of the judiciary; for it must be remembered that the
people act through courts, as well as through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. x x x.”
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of
his authority when he
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certified in Proclamation No. 1102 “that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of
all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines and has thereby come into effect.”
In this connection, it is not claimed that the Chief Executive had personal knowledge of the
data he certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely
inserted to place beyond the Executive the power to supervise or even exercise any authority
whatsoever over “all laws relative to the conduct of elections,” and, hence, whether the elections
are for the choice or selection of public officers or for the ratification or rejection of any proposed
amendment, or revision of the Fundamental Law, since the proceedings for the latter are, also,
referred to in said Art. XV as “elections.”
The Solicitor General stated, in his argument before this Court, that he had been informed
that there was in each municipality a municipal association of presidents of the citizens’
assemblies for each barrio of the municipality; that the president of each such municipal
association formed part of a provincial or city association of presidents of such municipal
associations; that the president of each one of these provincial or city associations in turn formed
part of a National Association or Federation of Presidents of such Provincial or City Associations;
and that one Francisco Cruz from Pasig, Rizal, as President of said National Association or
Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the
total result of the voting in the citizens’ assemblies all over the country from January 10 to
January 15, 1973. The Solicitor General further intimated that the said municipal associations
had reported the results of the citizens’ assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results of the voting in the
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
118

President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of Governments and Community
Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council since
1972, so that he could possibly have been a member on January 17, 1973, of
a municipal association of presidents of barrio or ward citizens’ assemblies, much less of a
Provincial, City or National Association or Federation of Presidents of any such provincial or city
associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the
resolution of this Court of same date, the Solicitor General was asked to submit, together with his
notes on his oral argument, a true copy of aforementioned report of Mr. Cruz to the President and
of “(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or
authorizing creation, establishment or organization” of said municipal, provincial and national
associations, but neither a copy of alleged report to the President, nor a copy of any
“(p)roclamation, decree, instruction, order, regulation or circular,” has been submitted to this
Court. In the absence of said report, “(p)roclamation, decree, instruction,” etc., Proclamation No.
1102 is devoid of any factual and legal foundation. Hence, the conclusion set forth in the
dispositive portion of said Proclamation No. 1102, to the effect that the proposed new or revised
Constitution had been ratified by majority of the votes cast by the people, can not possibly have
any legal effect or value.
The theory that said proclamation is “conclusive upon Court is clearly untenable. If it were,
acts of the Executive and those of Congress could not possibly be annulled or invalidated by
courts of justice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a
given person has been elected President or Vice-President of the Philippines as
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provided in the Constitution,69 is not conclusive upon the courts. It is no more than prima
facie evidence of what is attested to by said resolution.70 If assailed directly in appropriate
proceedings, such as an election protest, if and when authorized by law, as it is in the Philippines,
the Court may receive evidence and declare, in accordance therewith, who was duly elected to the
office involved.71 If prior to the creation of the Presidential Electoral Tribunal, no such protest
could be filed, it was not because the resolution of Congress declaring who had been elected
President or Vice-President was conclusive upon courts of justice, but because there was no
law permitting the filing of such protest and declaring what court or body would hear and decide
the same. So, too, a declaration to the effect that a given amendment to the Constitution or
revised or new Constitution has been ratified by a majority of the votes cast therefor, may be duly
assailed in court and be the object of judicial inquiry, in direct proceedings therefor — such as the
cases at bar — and the issue raised therein may and should be decided in accordance with the
evidence presented.
The case of In re McConaughy72 is squarely in point. “As the Constitution stood from the
organization of the state” — of Minnessota — “all taxes were required to be raised under the
system known as the ‘general property tax.’ Dissatisfaction with the results of this method and
the development of more scientific and satisfactory methods of raising revenue induced
_______________
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.
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the Legislature to submit to the people an amendment to the Constitution which provided merely
that taxes shall be uniform upon the same class of subjects. This proposed amendment was
submitted at the general election held in November, 1906, and in due time it was certified by the
state canvassing board and proclaimed by the Governor as having been legally adopted. Acting
upon the assumption that the amendment had become a part of the Constitution, the Legislature
enacted statutes providing for a State Tax Commission and a mortgage registry tax, and the
latter statute, upon the same theory, was held constitutional” by said Court. “The district court
found that the amendment had no in fact been adopted, and on this appeal” the Supreme Court
was “required to determine the correctness of that conclusion.”
Referring to the effect of the certification of the State Board of Canvassers created by the
Legislature and of the proclamation made by the Governor based thereon, the Court held: “It will
be noted that this board does no more than tabulate the reports received from the various county
board and add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A.
(U.S.) 1221. It is settled law that the decisions of election officers, and canvassing boards are not
conclusive and that the final decision must rest with the courts, unless the law declares that the
decisions of the board shall be final” — and there is no such law in the cases at bar. “x x x The
correctness of the conclusion of the state board rests upon the correctness of the returns made by
the county boards and it is inconceivable that it was intended that this statement of result should
be final and conclusive regardless of the actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board.
Its purpose is to formally notify the people of the state of the result of the voting as found by the
canvassing board. James on Const. Conv. (4th Ed.) sec. 523.”
In Bott v. Wartz,73 the Court reviewed the statement of results of the election made by the
canvassing board, in order that the true results could be judicially determined. And so did
_______________
73 63 N.J. Law, 289, cited in In re McConaughy, supra.
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the court in Rice v. Palmer.74

Inasmuch as Art. X of the 1935 Constitution places under the “exclusive” charge of the
Commission on Elections, “the enforcement and administration of all laws relative to the conduct
of elections,” independently of the Executive, and there is not even a certification by the
Commission in support of the alleged results of the citizens’ assemblies relied upon in
Proclamation No. 1102 — apart from the fact that on January 17, 1973 neither the alleged
president of the Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the citizens’ assemblies all over
the Philippines — it follows necessarily that, from a constitutional and legal viewpoint,
Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the proposed
Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the
discussion of the preceding topic, the new or revised Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with the provisions of the 1935
Constitution. In fact, it has not even been, ratified in accordance with said proposed Constitution,
the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18)
years, apart from the fact that Art. VI of the proposed Constitution requires “secret” voting,
which was not observed in many, if not most, Citizens’ Assemblies. Besides, both the 1935
Constitution and the proposed Constitution require a “majority of the votes cast” in an election or
plebiscite called for the ratification of an amendment or revision of the first Constitution or the
effectivity of the proposed Constitution, and the phrase “votes cast” has been construed to mean
“votes made in writing not orally, as it was in many Citizens’ Assemblies.75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in 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
_______________
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.
122

nature of a defense set up by the other respondents in these cases, the burden of proving such
defense — which, if true, should be within their peculiar knowledge — is clearly on such
respondents. Accordingly, if despite the extensive notes and documents submitted by the parties
herein, the members of the Court do not know or are not prepared to say whether or not the
majority of the people or of those who took part in the Citizens’ Assemblies have assented to the
proposed Constitution, the logical step would be to give due course to these cases, require the
respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise,
we would be placing upon the petitioners the burden of disproving a defense set up by the
respondents, who have not so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that there is ample
reason to believe that many, if not most, of the people did not know that the Citizens’ Assemblies
were, at the time they were held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia:

“Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the plebiscite for the ratification or rejection of
the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General
Order No. 20 was issued, directing ‘that the plebiscite scheduled to be held on January 15, 1973, be
postponed until further notice.’ Said General Order No. 20, moreover, ‘suspended in the meantime’ the ‘order
of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.’
“In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it
fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the
conditions under which said plebiscite would be held were known or announced officially. Then again,
Congress was,
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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 cases76 — the President announced
the postponement of the plebiscite scheduled by Presidential Decree No. 73 to be held on January
15, 1973, after consultation with the Commission on Elections and the leaders of Congress, owing
to doubts on the sufficiency of the time available to translate the proposed Constitution into some
local dialects and to comply with some pre-electoral requirements, as well as to afford the people
a reasonable opportunity to be posted on the contents and implications of said transcendental
document. On January 7, 1973, General Order No. 20 was issued formally, postponing said
plebiscite “until further notice.” How can said postponement be reconciled with the theory that
the proceedings in the Citizens’ Assemblies scheduled to be held from January 10 to January 15,
1973, were “plebiscites,” in effect, accelerated, according to the theory of the Solicitor General, for
the ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites
or elections envisaged in Art. XV of the Constitution, what, then, was the “plebiscite”postponed by
General Order No. 20? Under these circumstances, it was only reasonable for the people who
attended such assemblies to believe that the same were not an “election” or plebiscite for the
ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens’
Assemblies, namely:

“[1] Do you like the New Society?
_______________
76 On December 19, 1972.
124


“[2] Do you like the reforms under martial law?
“[3] Do you like Congress again to hold sessions?
“[4] Do you like the plebiscite to be held later?
“[5] Do you like the way President Marcos is running the affairs of the government? [Bulletin Today,
January 10, 1973; emphasis an additional question.]
“[6] Do you approve of the citizens assemblies as the base of popular government to decide issues of
national interests?
“[7] Do you approve of the new Constitution?
“[8] Do you want a plebiscite to be called to ratify the new Constitution?
“[9] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935
Constitution?
“[10] If the elections would not be held, when do you want the next elections to be called?
“[11] Do you want martial law to continue?” [Bulletin Today, January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the
ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is
the language of question No. 7 — “Do you approve the new Constitution?” One approves “of” the
act of another which does not need such approval for the effectivity of said act, which the first
person, however, finds to be good, wise satisfactory. The approval of the majority of the votes cast
in plebiscite is, however, essential for an amendment to the Constitution to be valid as part
thereof. Thirdly, if the proceedings in the Citizens’ Assemblies constituted a plebiscite question
No. 8 would have been unnecessary and improper, regardless of whether question No. 7 were
answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the
affirmative, the proposed Constitution would have become effective and no other
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VOL. 50, MARCH 31, 1973 125

plebiscite could be held thereafter in connection therewith, even if the majority of the answers to
question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were
in the negative, neither may another plebiscite be held, even if the majority of the answers to
question No. 8 were in the affirmative. In either case, not more than one plebiscite could be held
for the ratification or rejection of the proposed Constitution. In short, the insertion of said two (2)
questions — apart from the other questions adverted to above — indicates strongly that the
proceedings therein did not partake of the nature of a plebiscite or election for the ratification or
rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been
approved or adopted by the people in the citizens’ assemblies all over the Philippines, when it is,
to my mind, a matter of judicial knowledge that there have been no such citizens’ assemblies
in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter
of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the
former reported:

“x x x This report includes a resumee (sic) of the activities we undertook in effecting the referendum on
the eleven questions you wanted our people consulted on and the Summary of Results thereof for each
municipality and for the whole province.
“xxx xxx xxx
“x x x Our initial plans and preparations, however, dealt only on the original five questions.
Consequently, when we received an instruction on January 10 to change the questions, we urgently
suspended all scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of Offices and
other government officials to another conference to discuss with them the new set of guidelines and
materials to be used.
“On January 11, x x x another instruction from the top was received to include the original five questions
among those to be discussed and asked in the Citizens’ Assembly meetings. With this latest order, we again
had to make modifications in our instructions to all those managing and supervising the holding of the
Citizens’ Assembly meetings throughout the province. x x x Aside from the
126

coordinators we had from the Office of the Governor, the splendid cooperation and support extended by
almost all government officials and employees in the province, particularly of the Department of Education,
PC and PACD personnel, provided us with enough hands to trouble shoot and implement sudden changes in
the instructions anytime and anywhere needed. x x x
“x x x As to our people, in general, their enthusiastic participation showed their preference and readiness
to accept this new method of government to people consultation in shaping up government policies.”

Thus, as late as January 10, 1973, the Bataan officials had to suspend ”all scheduled Citizens’
Assembly meetings ...” and call all available officials “x x x to discuss with them the new set of
guidelines and materials to be used x x x.” Then, “on January 11 x x x another instruction from
the top was received to include the original five questions among those be discussed and asked in
the Citizens’ Assembly meetings. With this latest order, we again had to make modifications in
our instructions to all those managing and supervising holding of the Citizens’ Assembly
meetings throughout province. x x x As to our people, in general, their enthusiastic participation
showed their preference and readiness to accept the new method of government to
people consultation in shaping up government policies.”
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials
had still to discuss— not put into operation — means and ways to carry out the changing
instructions from the top on how to organize the citizens’ assemblies, what to do therein and even
what questions or topics to propound or touch in said assemblies; 2) that the assemblies would
involve no more than consultations or dialogues between people and government —
not decisions be made by the people; and 3) that said consultations were aimed only at “shaping
up government policies” and, hence could not, and did not, partake of the nature of a plebiscite for
the ratification or rejection of a proposed amendment of a new or revised Constitution for the
latter does not entail the formulation of a policy of the Government, but the making of decision by
the people on the new way of life, as a nation, they
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wish to have, once the proposed Constitution shall have been ratified.
If this was the situation in Bataan — one of the provinces nearest to Manila — as late as
January 11, 1973, one can easily imagine the predicament of the local officials and people in the
remote barrios in northern and southern Luzon, in the Bicol region, in the Visayan Islands and
Mindanao. In fact, several members of the Court, including those of their immediate families and
their household, although duly registered voters in the area of Greater Manila, were not even
notified that citizens’ assemblies would be held in the places where their respective residences
were located. In the Prohibition and Amendment case,77 attention was called to the “duty cast
upon the court of taking judicial cognizance of anything affecting the existence and validity of
any law or portion of the Constitution x x x.” In line with its own pronouncement in another case,
the Federal Supreme Court of the United States stressed, in Baker v. Carr,78 that “a court
is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon
the truth of what is declared.”
In the light of the foregoing, I cannot see how the question under consideration can be
answered or resolved otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run, since
January 17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that
the political department of the Government has recognized said revised Constitution; that our
foreign relations are being conducted under such new or revised Constitution; that the
Legislative Department has recognized the same; and that the people, in general, have, by their
acts or omissions,
_______________
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.

128

indicated their conformity thereto.

As regards the so-called political organs of the Government, gather that respondents refer
mainly to the offices under the Executive Department. In a sense, the latter performs some
functions which, from a constitutional viewpoint, are politics in nature, such as in recognizing a
new state or government, in accepting diplomatic representatives accredited to our Government,
and even in devising administrative means and ways to better carry into effect. Acts of Congress
which define the goals or objectives thereof, but are either imprecise or silent on the particular
measures to be resorted to in order to achieve the said goals or delegate the power to do so,
expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a
government that purports to be republican is essentially the Congress or Legislative Department.
Whatever may be the functions allocated to the Executive Department — specially under a
written, rigid Constitution with a republican system of Government like ours — the role of that
Department is inherently, basically and fundamentally executive in nature — to “take care that
the laws be faithfully executed,” in the language of our 1935 Constitution.79
Consequently, I am not prepared to concede that the acts the officers and offices of the
Executive Department, in line with Proclamation No. 1102, connote a recognition thereof o an
acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce thereto
or not is something that cannot legally, much less necessarily or even normally, be deduced from
their acts in accordance therewith, because 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
_______________
79 Art. VII, section 10, paragraph (1).
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proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority
of the people — that he could not do under the authority he claimed to have under Martial Law,
since September 21, 1972, except the power of supervision over inferior courts and its personnel,
which said proposed Constitution would place under the Supreme Court, and which the President
has not ostensibly exercised, except as to some minor routine matters, which the Department of
Justice has continued to handle, this Court having preferred to maintain the status quo in
connection therewith pending final determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be said to have
“recognized” its own acts. Recognition normally connotes the acknowledgment by a party of the
acts of another. Accordingly, when a subordinate officer or office of the Government complies with
the commands of a superior officer or office, under whose supervision and control he or it is, the
former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint,
there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it acted
otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth80 — cited by respondents herein in
support of the theory of the people’s acquiescence — involved a constitution ordained in 1902 and
“proclaimed by a convention duly called by a direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work of that Convention has been recognized,
accepted and acted upon as the only valid Constitution of the State” by —
1. The “Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby”;
2. The “Legislature in its formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the Convention x x x”;
_______________
80 101 Va. 529, 44 S.E. 754.
130


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 x x x”;
4. The “judiciary in taking the oath prescribed thereby to support it and by enforcing its
provisions x x x”; and
5. The “people in their primary capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands throughout the State, and by voting,
under its provisions, at a general election for their representatives in the Congress of the United
States.”
Note that the New Constitution of Virginia, drafted by a convention whose members were
elected directly by the people, was not submitted to the people for ratification or rejection thereof.
But, it was recognized, not by the convention itself, but by other sectors of the Government,
namely, the Governor; the Legislature — not merely by individual acts of its members, but
by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the
various ways specified above. What is more, there was no martial law. In the present
cases, none of the foregoing acts of acquiescence was present. Worse still, there is martial law,
the strict enforcement of which was announced shortly before the alleged citizens’ assemblies. To
top it all, in the Taylor case, the effectivity of the contested amendment was not contested
judicially until about one (1) year after the amendment had been put into operation
in all branches of the Government, and complied with by the people who participated in the
elections held pursuant to the provisions of the new Constitution. In the cases under
consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the scheduled
plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973, that the
proposed Constitution had been ratified — despite General Order No. 20, issued on January 7,
1972, formally and officially suspending the plebiscite until further notice — was impugned as
early as January 20, 1973, when L-36142 was filed, or three (3) days after the issuance of
Proclamation No. 1102.
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It is further alleged that a majority of the members of our House of Representatives and
Senate have acquiesced in the new or revised Constitution, by filing written statements opting to
serve in the Ad Interim Assembly established in the Transitory Provisions of said Constitution.
Individual acts of recognition by members of our legislature, as well as of other collegiate bodies
under the government, are invalid as acts of said legislature or bodies, unless its members have
performed said acts in session duly assembled, or unless the law provides otherwise, and there is
no such law in the Philippines. This is a well-established principle of Administrative Law and of
the Law of Public Officers, and no plausible reason has been adduced to warrant departure
therefrom.81
Indeed, if the members of Congress were generally agreeable to the proposed Constitution,
why did it become necessary to padlock its premises to prevent its meeting in session on January
22, 1973, and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the
members of Congress, if bent on discharging their functions under said Constitution, could have
met in any other place, the building in which they perform their duties being immaterial to the
legality of their official acts. The force of this argument is, however, offset or dissipated by the
fact that, on or about December 27, 1972, immediately after a conference between the Executive,
on the one hand, and members of Congress, on the other, some of whom expressed the wish to
meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express
columnist (Primitivo Mijares) attributed to Presidential Assistant Guillermo de Vega a statement
to the effect that “ ‘certain members of the Senate appear to be missing the point in issue’ when
they reportedly insisted on taking up first the question of convening Congress.” The Daily Express
of that date,82 likewise, headlined, on its front page, a “Senatorial Plot Against ‘Martial Law
Government’ Disclosed.”
_______________
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.
132

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 x x x which may result in the exercise by me of authority I
have not exercised.”
No matter how good the intention behind these statement may have been, the idea implied
therein was too clear and ominous for any member of Congress who thought of organizing,
holding or taking part in a session of Congress, not to get the impression that he could hardly do
so without inviting or risking the application of Martial Law to him. Under these conditions, I do
not feel justified in holding that the failure of the members of Congress to meet since January 22,
1973, was due to their recognition, acquiescence in or conformity with the provisions of the
aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire
Philippines under Martial Law, neither am I prepared to declare that the people’s inaction as
regards Proclamation No. 1102, and their compliance with a number of Presidential orders,
decrees and/or instructions — some or many of which have admittedly had salutary effects —
issued subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval
of said Proclamation No. 1102. In the words of the Chief Executive, “martial law connotes power
of the gun, meant coercion by the military, and compulsion and intimidation.”83 The failure to use
the gun against those who comply with the orders of the party wielding the weapon does not
detract from the intimidation that Martial Law necessarily connotes. It may reflect the good,
reasonable and wholesome attitude of the person who has the gun, either pointed at others,
without pulling the trigger, or merely kept in its holster, but not without warning that he may or
would use it if he deemed it necessary. Still, the intimidation is there, and inaction or obedience
of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This
is specially so when we consider that the masses are, by and
_______________
83 Daily Express, November 29, 1972, p. 4. Italics ours.
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VOL. 50, MARCH 31, 1973 133

large, unfamiliar with the parliamentary system, the new form of government introduced in the
proposed Constitution, with the particularity that it is not even identical to that existing in
England and other parts of the world, and that even experienced lawyers and social scientists find
it difficult to grasp the full implications of some provisions incorporated therein.
As regards the applicability to these cases of the “enrolled bill” rule, it is well to remember that
the same refers to a document certified to the President — for his action under the Constitution
— by the Senate President and the Speaker of the House of Representatives, and attested to by
the Secretary of the Senate and the Secretary of the House of Representatives, concerning
legislative measures approved by the two Houses of Congress. The argument of the Solicitor
General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this
extent, it is conclusive upon the President and the judicial branch of the Government, why should
Proclamation No. 1102 merit less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being certified
by the aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the
President of the Association of Sugar Planters and/or Millers of the Philippines, and the measure
in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said
Association, which even prepared the draft of said legislation, as well as lobbied actually for its
approval, for which reason the officers of the Association, particularly, its aforementioned
president — whose honesty and integrity are unquestionable — were present at the deliberations
in Congress when the same approved the proposed legislation, would the enrolled bill rule apply
thereto? Surely, the answer would have to be in the negative. Why? Simply, because said
Association President has absolutely no official authority to perform in connection therewith,
and, hence, his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and
Community Development about the tabulated results of the voting in the
134

Citizens Assemblies allegedly held all over the Philippines — and the records do not show that
any such certification, to the President of the Philippines or to the President Federation or
National Association of presidents of Provincial Associations of presidents of municipal
association presidents of barrio or ward assemblies of citizens — would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because said Department
Secretary is not the officer designated by law to superintend plebiscites or elections held for the
ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which, according to Article X of the
Constitution, should not and must not be all participate in said plebiscite — if plebiscite there
was.
After citing approvingly its ruling in United States v. Sandoval,84 the Highest Court of the
United States that courts “will not stand impotent before an obvious instance of a manifestly
unauthorized exercise of power.”85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their
conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure followed in
these five (5) cases. In this connection, it should be noted that the Court has not decided whether
or not to give due course to the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective petitions — with three (3)
members of the voting to dismiss them outright — and then considers comments thus submitted
by the respondents as motions to dismiss, as well as set the same for hearing. This was due to
_______________
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.
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VOL. 50, MARCH 31, 1973 135

the transcendental nature of the main issue raised, the necessity of deciding the same with
utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political
nature of said issue, placing the same, according to respondents, beyond the ambit of judicial
inquiry and determination. If this defense was sustained, the cases could readily be dismissed;
but, owing to the importance of the questions involved, a reasoned resolution was demanded by
public interest. At the same time, respondents had cautioned against a judicial inquiry into the
merits of the issues posed on account of the magnitude of the evil consequences, it was claimed,
which would result from a decision thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were
dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to
the filing of said cases, although before the rendition of judgment therein. Still one of the
members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should
be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On
the other hand, three (3) members of the Court — Justices Barredo, Antonio and Esguerra —
filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo
holding “that the 1935 Constitution has pro tanto passed into history and has been legitimately
supplanted by the Constitution in force by virtue of Proclamation 1102.”86 When the petitions at
bar were filed, the same three (3) members of the Court, consequently, voted for the dismissal of
said petitions. The majority of the members of the Court did not share, however, either view,
believing that the main question that arose before the rendition of said judgment had not been
sufficiently discussed and argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and
to elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument
for five (5) consecutive days — morning and
_______________
86 Justice Barredo’s opinion in the plebiscite cases.
136

afternoon, or a total of exactly 26 hours and 31 minutes — the respective counsel filed extensive
notes on their or arguments, as well as on such additional arguments as they wished to submit,
and reply notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of
document in support of their respective contentions, or as required by the Court. The arguments,
oral and written, submitted have been so extensive and exhaustive, and the documents filed in
support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if —
disregarding forms — the petitions had been given due course and the cases had been submitted
for decision.
Accordingly, the majority of the members of the Court believe that they should express their
views on the aforementioned issues as if the same were being decided on the merits, and they
have done so in their individual opinion attached hereto. Hence, the resume of the votes cast and
the tenor of the resolution, in the last pages hereof, despite the fact that technically the Court has
not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J.
Puyat and Jose Roy, President and President Pro Tempore respectively of the Senate, it being
settled in our jurisdiction, based upon the theory of separation of powers, that the judiciary will
not issue such writ to the head of a co-equal department, like the aforementioned officers of the
Senate.
In all other respects and with regard to the other respondent in said case, as well as in cases
L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due
course, there being more than prima facie showing that the proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or
has been acquiesced in by the people or majority thereof; that said proposed Constitution is not in
force and effect; and that the 1935 Constitution is still the
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VOL. 50, MARCH 31, 1973 137

Fundamental Law of the Land, without prejudice to the submission of said proposed Constitution
to the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and
XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time
of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they might consider
to be the demands of “judicial statesmanship,” whatever may be the meaning of such phrase. I
am aware of this possibility, if not probability; but “judicial statesmanship,”
though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends or
consistent values, there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would have been very
difficult, if not impossible, to accomplish under the old dispensation. But, in and for the judiciary,
statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the
Rule of Law and faithful adherence thereto are basic, fundamental and essential parts of
statesmanship itself.
Resume of the Votes Cast and the Court’s Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions
and/or concurrences as appended hereto, the writer will now make, with the concurrence of his
colleagues, a resume or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the
deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five
questions for purposes of taking the votes. It was further agreed of course that each member of
the Court would expound in his individual opinion and/or concurrence his own approach to the
stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with
such priority, qualifications and modifications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to the cases at bar.
138


The five questions thus agreed upon as reflecting the basic issues herein involved are the
following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore
non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly
(with substantial, if not strict, compliance) conformably to the applicable constitutional and
statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid
ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the members of the
Court in their respect opinions and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of
the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices
Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their
discussion of the second question. Justice Barredo qualified his vote, stating that “inasmuch as it
is claimed 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. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee
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VOL. 50, MARCH 31, 1973 139

and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the
1935 Constitution, which provides only one way for ratification, i.e., “in an election or plebiscite
held in accordance with law and participated in only by qualified and duly registered voters.”87
Justice Barredo qualified his vote, stating that “(A)s to whether or not the 1973 Constitution
has been validly ratified pursuant to Article XV, I still maintain that in the light of traditional
concepts regarding the meaning and intent of said Article, the referendum in the Citizens’
Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls
short of the requirements thereof. In view, however, of the fact that I have no means of refusing
to recognize as a judge that factually there was voting and that the majority of the votes were for
considering as approved the 1973 Constitution without the necessity of the usual form of
plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not
in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the
belief that in doing so they did the part required of them by Article XV, hence, it may be said that
in its political aspect, which is what counts most, after all, said Article has been substantially
complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.”
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under
their view there has been in effect substantial compliance with the constitutional requirements
for valid ratification.
3. On the third question of acquiescence by the Filipino people in the aforementioned proposed
Constitution, no majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that
“the people have already
_______________
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
140

accepted the 1973 Constitution.”

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no
free expression, and there has even been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that “(I)f it is conceded that the doctrine stated in some American
decisions to the effect that independently of the validity of the ratification, a new Constitution
once accepted acquiesced in by the people must be accorded recognition by the Court, I am not at
this stage prepared to state that such doctrine calls for application in view of the shortness of
time that has elapsed and the difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant feature of martial law.”88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on
the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement
that “Under a regime of martial law, with the free expression of opinions through the usual
media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution.”89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice
Makalintal and Castro so voted on the strength of their view that “(T)he effectivity of the said
Constitution, in the final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the competence of this
Court,90 are relevant and unavoidable.”91

_______________
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.
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VOL. 50, MARCH 31, 1973 141


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 andEsguerra, JJ., concur.

Concepcion, C.J., dissents.
Zaldivar, J., dissents in line with the personal opinion of
142

ANNOTATED
the Chief Justice, and also dissents in a separate opinion.

Fernando, J., dissents in conformity with the personal views of the Chief Justice, except as to
such portions thereof on which he expresses his own thoughts as set forth in his dissenting
opinion;
Teehankee, J., dissents in conformity with the Chief Justice’s personal opinion and files a
separate dissent.

143
VOL. 50, MARCH 31, 1973 143


ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY*
“(a) An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has beenjudicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96
S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46
Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71
N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed
amendment is a single amendment, within the constitutional requirement that every amendment
must be separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450;
State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals invalidates the amendment (Koehler v.
Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3;
West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v.
Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am.
144

St. Rep. 895); whether the description of the amendment and the form of the ballot are
sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A.
[N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the method of
submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69,
63 S.W. 849); whether the publication of the amendment or of a notice relative to it is sufficient
(Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849);
whether the submission may be well by resolution as by a legislative act approved by the
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78,
60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho,
154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
“In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: “It is contended
that the determination of the question whether an amendment to the Constitution has been
carried involves the exercise of political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any executive department is final,
and that the action cannot be questioned by the judiciary; but, with reference to the conditions
precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held,
by courts of the highest respectability, that it is within the power of the judiciary to inquire into the
question, even in a collateral proceeding. * * * It is to be noted that under section 1 of article 20 of
the Constitution of the state no amendment can become a part of the Constitution until ratified
by a vote of the people. One prerequisite is equally as essential as the other. The amendment must
first receive the requisite majority in the Legislature, and afterwards be adopted by the requisite
vote. * * * It is the fact of a majority vote which makes the amendment a part of the Constitution.’
“In considering the cases it is necessary to note whether in the particular case the court was
called upon to determine between rival governments, or whether the Legislature, or
145
VOL. 50, MARCH 31, 1973 145

some board or official, had legally performed the duty imposed by the Constitution or statutes. In
re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under
the power granted by the Constitution, could change the Constitution only in the manner
prescribed by it, and that it was the duty of the court to determine whether all prerequisites had
been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be
changes only by the peoplein convention or in a mode described by the Constitution itself, and
that if the latter mode is adopted every requisite of the Constitution must be observed. ‘It has been
said,” says the court, “that certain acts are to be done, certain requisitions are to be observed,
before a change can be effected; but to what purpose are these acts required, or these requisitions
enjoined, if the Legislature or any other department of the government can dispense with them.
To do so would be to violate the instrument which they are sworn to support; and every principle
of public law and sound constitutional policy requires the court to pronounce against every
amendment which is shown not to have been made in accordance with the rules prescribed by the
fundamental law.’
“In State v. Swift, 69 Ind. 505, it was said that: ‘The people of a state may form
an original Constitution, or abrogate an old one and form a new one, at any time, without any
political restriction, except the Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution already in existence, they can do it
only by the method pointed out by the Constitution to which the amendment is added. The power
to amend a Constitution by legislative action does not confer the power to break it, any more than
it confers the power to legislate on any other subject contrary to its prohibitions.’ So, in State v.
Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the
Constitution of the state without a compliance with the provisions thereof, both in the passage of
such amendment by the Legislature and the manner of submitting it to the people. The courts
have not all agreed as to the strictness of compliance which should be required.
“In the Prohibition and Amendment Case, 24 Kan. 700, the
146

court determined judicially whether an amendment to the Constitution had been legally adopted.

After approving the statement quoted from Collier v. Frierson, supra, that ‘we entertain no
doubt that, to change the Constitution in an other mode than by a convention, every requisite
which is demanded by the instrument itself must be observed, and the omission of any one is fatal
to the amendment,’ the court held that, ‘as substance of right is grander and more potent than
methods of form,’ there had been substantial compliance with the constitutional requirement that
a proposed amendment to the Constitution must be entered at length on the legislative journal. It
appears that the joint resolution making submission simply provided that a proposition should be
submitted to the electors at the general election of 1880. It did not declare that the machinery of
the general election law should control, or that any particular officers or board would receive,
count, or canvass the votes cast. But the existing election machinery was adequate, and the votes
were received, counted, and canvassed, and the result declared as fully as though it had been in
terms so ordered. These methods had been followed in the adoption of previous amendments, and
was held that, conceding the irregularity of the proceedings the Legislature and the doubtful
scope of the provisions for the election, yet in view of the very uncertainty of such provision
the past legislative history of similar propositions, the universal prior acquiescence in the same
forms of procedure and the popular and unchallenged acceptance of the legal pendency before the
people of the question of the amendment for decision, and in view of the duty cast upon the court
taking judicial knowledge of anything affecting the existence and validity of any law or portion of
the Constitution, it must be adjudged that the proposed amendment became part of the
Constitution. The effect was to hold that a provision of the Constitution requiring the proposed
amendment to be entered in full on the journals was directory, and not mandatory.
This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and
People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally
accepted.
“In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the
Kansas case said: ‘The
147
VOL. 50, MARCH 31, 1973 147

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. InLivermore 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 materialvariance 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,
148

113 Iowa, 250, 84 N.W. 1064.

“In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the
Constitution had been legally adopted was treated as a judicial question. By the Constitution a
proposed amendment was required to be approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained 17 amendments. The next
Legislature rejected 9 and adopted 8 of the amendments, and submitted them to the people. The
majority of the people voted for their adoption; but it was contended that the Constitution
contemplated and required that the same bill and the same amendments, without change, should
approved by both Legislatures, and that it did not follow because the second Legislature adopted
separately 8 out of 17 amendments adopted by the first Legislature, it would have adopted the
17, or any of them, if they had been voted upon the second in the form adopted by the first body.
The substance of the contention was that there had not been a concurrence of
the two Legislatures on the same amendments, according to the letter and spirit of the
Constitution. The court held that the power of the Legislature in submitting amendments
could not be distinguished from the powers of convention, and that, as the people had spoken and
ratified the amendments, they became a part of the Constitution.
“In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a
proposed amendment to Constitution could not be submitted to the people at any other than a
general election; but, as the amendment under consideration had been submitted after the
Constitution been changed, it had been legally submitted and adopted.
“In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the
Constitution had been legally submitted and adopted by the people was held to be judicial,
and not political, in its nature. The amendment under consideration changed the Constitution by
providing for an elective, instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a majority of the qualified voters
voting at election, as required by the Constitution. The law did not
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direct how the result of the election should be determined. The Legislature by joint resolution
recited that the election had been duly held throughout the state, and, as it appeared from the
returns made to the Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes
against, the amendment, it resolved ‘that said amendment be, and hereby is, inserted into the
Constitution of the state of Mississippi as a part of the Constitution.’ In fact, the amendment
was not submitted in the manner prescribed by the Constitution, and it did not receive a majority
of all the qualified voters voting at the election. It was argued that the rules prescribed by the
Constitution “are all for the guidance of the Legislature, and from the very nature of the thing
the Legislature must be the exclusive judge of all questions to be measured or determined by
these rules. Whether the question be political, and certainly a legislative one, or judicial, to be
determined by the courts, this section of rules, not only of procedure, but of final judgment as
well, confides to the separate magistracy of the legislative department full power to hear,
consider, and adjudge that question. The Legislature puts the question to the qualified electors.
The qualified electors answer back to the Legislature. “If it shall appear” to the Legislature that
its question has been answered in the affirmative, the amendment is inserted and made a part of
the Constitution. The Governor and the courts have no authority to speak at any stage of the
proceedings between the sovereign and the Legislature, and when the matter is thus concluded it
is closed, and the judiciary is as powerless to interfere as the executive.’ But it was held that the
question whether the proposition submitted to the voters constituted one, or more than one,
amendment, whether the submission was according to the requirements of the Constitution, and
whether the proposition was in fact adopted, were all judicial, and not political, questions. ‘We do
not,’ said Chief Justice Whitfield, ‘seek a jurisdiction not imposed upon us by the
Constitution. We could not, if we would, escape the exercise of that jurisdiction which the
Constitution has imposed upon us. In the particular instance in which we are now acting, our
duty to know what the Constitution of the state is, and in accordance with our oaths to support
and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which
we have not sought, but one which, like all others, must be discharged.’
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“In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was
the duty of the judicial department of the government to determine whether the legislative
department or its officers had observed the constitutional injunctions in attempting to amend the
Constitution, and to annul their acts if they had not done so. The case is an interesting and 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 certificate showing
the result of the voting throughout the state, and made it the duty of the Governor at the
designated time summon four or more Senators, who, with the Governor, should constitute a
board of state canvassers to canvass and estimate the votes for and against each amendment.
This board was to determine and declare which of the proposed amendments had been adopted
and to deliver a statement of the results to the Secretary of State, and “any proposed amendment,
which by said certificate and determination of the board of canvassers shall appear to have
received in its favor the majority of all the votes cast in the state for and against said proposed
amendment, shall from the time of filing such certificate be and become an amendment to and a
part of the Constitution of the state; and it shall be the duty of the Governor of the state
forthwith, after such a determination, to issue a proclamation declaring which of the said
proposed amendments have been adopted by the people.” This board was required to file a
statement of the result of the election, and the Governor to issue his proclamation declaring that
the amendment had been adopted and become a part of the Constitution. At the instance of a
taxpayer the Supreme Court allowed a writ of certiorari to remove into the court for review the
statement of the results of the election made by the canvassing board, in order that it might be
judicially determined whether on the facts shown in that statement the board had legally
determined that the proposed amendment had been adopted. The Supreme Court decided that
the concurrence of the board of state canvassers and the executive department of the government
in their respective official
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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.”
152


ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31,
1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit
to them for resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the ratification of the
Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should taken as
a plebiscite in itself in view of the fact that freedom of debate has always been limited to the
leadership in political, economic and social fields, and that it is now necessary to bring this down
to the level of the people themselves through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers in me vested by the Constitution, do hereby order that important national issues shall
from time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 an that the initial referendum shall
include the matter of ratification of the Constitution proposed by the 1971 Constitutional
Convention.
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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
sufficient prima facie case in their petitions to justify their being given due course. Considering
on the one hand the urgency of the matter and on the other hand its transcendental importance,
which suggested the need for hearing the side of the respondents before that preliminary
question was resolved, We required them to submit their comments on the petitions. After the
comments were filed We considered them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days, morning and afternoon, and could not have
been more exhaustive if the petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and
proclaimed by the President on January 17, 1973 (Proclamation No. 1102) was not an act of
ratification, let alone a valid one, of the proposed Constitution, because it was not in accordance
with the existing Constitution (of 1935) and the Election Code of 1971. Other grounds are relied
upon by the petitioners in support of their basic proposition, but to our mind they are merely
subordinate and peripheral.
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Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by
Congress in joint session or by a Convention called by it for the purpose) “shall be valid part of
this Constitution when approved by a majority of votes cast at an election at which the
amendments submitted to the people for their ratification.” At the time Constitution was
approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held
on following May 14, the word “election” had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute
ascertaining the people’s choices among candidates for public offices, or their will on important
matters submitted to the pursuant to law, for approval. It was in this sense that word was used
by the framers in Article XV (also in Articles VI and VII), and in accordance with such procedure
that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940
(establishment of a bicameral legislature; eligibility of the President and the Vice President for re
election; creation of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase
in membership of the House of Representatives and eligibility of members of Congress to run for
the Constitutional Convention without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that “all elections of public officers except
barrio officials and plebiscites shall be conducted in the manner provided by this Code.” This is a
statutory requirement designed, as were the other election laws previously in force, to carry out
the constitutional mandate relative to the exercise of the right suffrage, and with specific
reference to the term “plebiscites,” the provision of Article XV regarding ratification of

constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other
sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the
qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of
age (21), literacy and residence. These qualifications are reiterated
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in Section 101 of the Election Code. Section 102 enumerates the classes of persons disqualified to
vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for
registering voters, the records, of registration and the custody thereof, the description and
printing of official ballots, the actual casting of votes and their subsequent counting by the boards
of inspectors, the rules for appreciation of ballots, and then the canvass and proclamation of the
results.
With specific reference to the ratification of the 1972 draft Constitution, several additional
circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant
to Resolution No. 2 passed by Congress on March 16, 1967, which provides:
“Sec. 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election at which they are submitted to the
people for their ratification pursuant to Article XV of the Constitution.”
(2) Article XVII, Section 16, of the draft itself states:

“Sec. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of
nineteen hundred and thirty-five and all amendments thereto.”
The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future
amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the
156

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

“(4) Do you want the elections to be held in November, 1973 accordance with the provisions of the 1935
Constitution?
“(5) If the elections would not be held, when do you want the next elections to be called?
“(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied].
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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
deemed ratified.
Constitution.
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
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revolutionary government along the lines of the new Constitution without the ad interim Assembly.”
So it was that on January 11, 1973, the second day of the purported referendum, the
suggestion was broached, for the first time, that the plebiscite should be done away with and a
favorable vote by the Assemblies deemed equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to question No. 3. Strangely, however, it was not
similarly suggested that an unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was
conducted in the Citizen Assemblies, assuming that such voting was held, was not within the
intendment of Article XV, Section 1, of the 1935 Constitution nor in accordance with the Election
Code of 1971. The referendum can by no means be considered as the plebiscite contemplated in
Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the
election intended by Congress when it passed Resolution No. 2 on March 16, 1967 calling a
Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to
qualified, let alone registered voters, but included all citizens from the age of fifteen, and
regardless of whether or not they were illiterates, feeble-minded, or ex convicts* — these being
the classes of persons expressly disqualified from voting by Section 102 of the Election Code. In
short, the constitutional and statutory qualifications were not considered in the determination of
who should participate. No official ballots were used in the voting; it was done mostly by
acclamation or open show of hands. Secrecy, which is one of the essential features of the election
process, was not therefore observed. No set of rules for counting the votes or of tabulating them
and
_______________
* Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed unsuccessfully as an
amendment to the 1935 Constitution, reducing the voting age from 21 to 18, but the submission of which to a plebiscite
was declared invalid by this Court in Tolentino vs. COMELEC, became a reality of an even more far-reaching
import — since fifteen-year olds were included in the Citizens Assemblies.
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reporting the figures was prescribed or followed. The Commission on Elections, which is the
constitutional body charged with the enforcement and administration of all laws relative to the
conduct of elections, took no part at all, either by way of supervision or in the assessment of the
results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming
majority of all the members of the Citizens Assemblies had voted for the adoption of the proposed
Constitution there was a substantial compliance with Article XV, Section 1, of the 1935
Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is of
the essence of a valid exercise of the right of suffrage that not only must a majority or plurality of
the voters carry the day but that the same must be duly ascertained in accordance with the
procedure prescribed by law. In other words the very existence of such majority or plurality
depends upon the manner of its ascertainment, and to conclude that it exists even if it has not
been ascertained according to law is simply to beg the issue, or to assume the very fact to be
established. Otherwise no election or plebiscite could be questioned for non-compliance with the
provisions of the Election Law as long as it is certified that a majority of the citizens had voted
favorably or adversely on whatever it was that was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies,
as certified by the President in Proclamation No. 1102, was not in accordance with the
constitutional and statutory procedure laid down for the purpose does not quite resolve the
questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire into. It imports nothing more than a
simple reading and application of the pertinent provisions of the 1935 Constitution, of the
Election Code and of other related laws and official acts. No question of wisdom or of policy is
involved. But from this finding it does not necessarily follow that this Court may justifiably
declare that the Constitution has not become effective, and for that reason give due course to
these petitions or grant the writs herein prayed for. The effectivity of the said Constitution, in the
final analysis, is the basic and
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ultimate question posed by these cases, to resolve which considerations other than judicial, and
therefore beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The petitioners lay stress on
the invalidity of the ratification process adopted by the Citizens Assemblies and on that premise
would have this Court grant the reliefs they seek. The respondents represented by the Solicitor
General, whose theory may be taken as the official position of the Government, challenge the
jurisdiction of this Court on the ground that the questions raised in the petitions are political and
therefore non-justiciable, and that in any case popular acquiescence in the new Constitution and
the prospect of unsettling acts done in reliance thereon should caution against interposition of the
power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their respective
capacities as President and President Pro Tempore of the Senate of the Philippines, and through
their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a
ground not concurred in by the Solicitor General, namely, that approval of the 1973 Constitution
by the people was made under a revolutionary government, in the course of a successful political
revolution, which was converted by act of the people to the present de jure government under the
1973 Constitution.”
Heretofore, constitutional disputes which have come before this Court for adjudication
proceeded on the assumption, conceded by all, that the Constitution was in full force and effect,
with the power and authority of the entire Government behind it; and the task of this Court was
simply to determine whether or not the particular act or statute that was being challenged
contravened some rule or mandate of that Constitution. The process employed was one of
interpretation and synthesis. In the cases at bar there is no such assumption: the Constitution
(1935) has been derogated and its continued existence as well as the validity of the act of
derogation is issue. The legal problem posed by the situation is aggravated by the fact that the
political arms of the Government — the Executive Departments and the two Houses of Congress
— have accepted the new Constitution as effective: the former by organizing themselves and
discharging their functions under it,
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and the latter by not convening on January 22, 1973 or at any time thereafter, as ordained by the
1935 Constitution, and in the case of a majority of the members by expressing their option to
serve in the Interim National Assembly in accordance with Article XVIII, Section 2, of the 1973
Constitution.*
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be
taken up and restated at same length if only because it would constitute, if sustained, the most
convenient ground for the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial law on September 21,
1972 (Proclamation No. 1081) he established a revolutionary government when he issued General
Order No. 1 the next day, wherein he proclaimed “that I shall govern the nation and direct the
operation of the entire government, including all its agencies and instrumentalities, in my
capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my
position as such Commander-in-Chief of all the Armed Forces of the Philippines.” By this order, it
is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of
government — executive, legislative, and judicial; and thereafter proceeded to exercise such
powers by a series of Orders and Decrees which amounted to legislative enactments not justified
under martial law and, in some instances, trenched upon the domain of the judiciary, by
removing from its jurisdiction certain classes of cases, such as “those involving the validity,
legality, or constitutionality of Proclamation No. 1081, or of any decree, order or act issued,
promulgated or performed by me or by my duly designated representative pursuant thereto.”
(General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972.) The
ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution,
which thereupon converted the government into a de jure one under the 1973 Constitution.
_______________
* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers constituting majorities) have
expressed their option.
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If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and
that such ratification as well as the establishment of the government thereunder formed part of a
revolution, albeit peaceful, then the issue of whether or not that Constitution has become
effective and, as necessary corollary, whether or not the government legitimately functions under
it instead of under the 1935 Constitution, is political and therefore non-judicial in nature. Under
such a postulate what the people did in the Citizen Assemblies should be taken as an exercise of
the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be the least doubt that
their act would be political and not subject to judicial review but only to the judgment of the same
body politic act, in the context just set forth, is based on realities. If a new government gains
authority and dominance through force, it can be effectively challenged only by a stronger force;
judicial dictum can prevail against it. We do not see that situation would be any different, as far
as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in
defiance of the existing Constitution but peacefully because of the absence of any appreciable
opposition, ordained a new Constitution and succeeded in having the government operate under
it. Against such a reality there can be no adequate judicial relief; and so courts forbear to take
cognizance of the question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme
Court in a case* relied upon, curiously enough, by the Solicitor General, who disagrees with the
revolutionary government theory of Senator Tolentino. The case involved the issue of which of
two opposing governments struggling for supremacy in the State of Rhode Island was the lawful
one. The issue had previously come up in several other cases before the courts of the State, which
uniformly held that the inquiry belonged to the political power and not to the judicial.
Commenting on the ruling thus arrived at, the U.S. Supreme Court said: “And if a State court
should
_______________
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
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enter upon the inquiry proposed in this case, and should come to the conclusion that the
government under which it acted had been put aside and displaced by an opposing government, it
would cease to be a court, and incapable of pronouncing a judicial decision upon the question it
undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority
of the government under which it is exercising judicial power.” In other words, since the court
would have no choice but to decide in one way alone in order to be able to decide at all, the
question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the
cases at bar only on the premise that the ratification of the Constitution was a revolutionary act
and that the government now functioning it is the product of such revolution. However, we are
not prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification, several significant
circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential
Decree No. 86, “to broaden the base of citizen participation in the democratic process and to
afford ample opportunities for the citizenry to express their views on important national issues.”
(2) The President announced, according to the Daily Express of January 2, 1973, that “the
referendum will be in the nature of a loose consultation with the people.” (3) The question, as
submitted to them on the particular point at issue here, was “Do you approve of the
Constitution?” (4) President Marcos, in proclaiming that the Constitution had been ratified,
stated as follows: “(S)ince the referendum results show that more than ninety-five (95) per cent of
the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution,
the Katipunan ng mga Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people.” (5) There was not enough time for the Citizens
Assemblies to really familiarize themselves with the Constitution, much less with the many other
subjects that were submitted to them. In fact the plebiscite planned for January 15, 1973 under
Presidential Decree No. 73 had been postponed
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to an indefinite date, the reasons for the postponement being, as attributed to the President in
the newspapers, that “there was little time to campaign for or against ratification” (Daily
Express, Dec. 22, 1972); that he would base his decision (as to the date, of the plebiscite) on the
compliance by the Commission (on Elections) on the publication requirement of the new Charter
and on the position taken by national leaders” (Daily Express, Dec. 23, 1972); and that “the
postponement would give us more time to debate on the merits of the Charter.” (Bulletin Today,
Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies
could not have understood the referendum to be for the ratification of the Constitution, but only
for the expression of their views on a consultative basis. Indeed, if the expression of those views
had been intended as an act of ratification (or of rejection as a logical corollary) — there would
have been no need for the Katipunan ng mga Barangay to recommend that the Constitution
should already be deemed ratified, for recommendation imports recognition of some higher
authority in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution
had been ratified and had come into effect. The more relevant consideration, therefore, as far as
we can see, should be as to what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable expression of their views
was an act of ratification. In this respect subjective factors, which defy judicial analysis and
adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider
whether or not the regime established by President Marcos since he declared martial law and
under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary
one. The pivotal question is rather whether or not the effectivity of the said Constitution by
virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga
Barangay, was intended to be definite and irrevocable, regardless of
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non-compliance with the pertinent constitutional and statutory provisions prescribing the
procedure for ratification. We must confess that after considering all the available evidence and
all the relevant circumstances we have found no reasonably reliable answer to the question. On
one hand we read, for instance, the following public statements of the President:
Speaking about the proclamation of martial law, he said:
“I reiterate what I have said in the past: there is no turning back for our people.
“We have committed ourselves to this revolution. We have pledged to it our future, our fortunes, our lives,
our destiny. We have burned our bridges behind us. Let no man misunderstand the strength of our
resolution.” (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President
said the following, among other things:
“... We can, perhaps delimit the power of the people to speak on legal matters, on justiciable matters, on
matters that may come before the experts and interpreters of the law. But we cannot disqualify the people
from speaking on what we and the people consider purely political matters especially those that affect the
fundamental law of the land.
“... The political questions that were presented to the people are exactly those that refer to the form of
government which the people want ... The implications of disregarding the people’s will are too awesome to
be even considered. For if any power in government should even dare to disregard the people’s will there
would be valid ground for revolt.
“... Let it be known to everybody that the people have spoken and they will no longer tolerate any attempt
to undermine the stability of their Republic; they will rise up in arms not in revolt against the Republic but
in protection of the Republic which they have installed. It is quite clear when the people say, we ratify the
Constitution, that they mean they will not discard, the Constitution.”
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On January 19, 1973 the Daily Express published statement of the President made the day
before, from which the following portion is quoted:
“... the times are too grave and the stakes too high for us permit the customary concessions to traditional
democratic process to hold back our people’s clear and unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by these extraordinary times.”
On the same occasion of the signing of Proclamation No. 1102 the President made pointed
reference to “the demand of some of our citizens ... that when all other measures should fail, that
the President be directed to organize and establish a Revolutionary Government,” but in the next
breath added: “... if we do ratify the Constitution, how can we speak of Revolutionary
Government? They cannot be compatible ...” “(I)t is my feeling,” he said, “that the Citizens’
Assemblies which submitted this recommendation merely sought articulate their impatience with
the status quo that has brought about anarchy, confusion and misery to the masses ...” The only
alternatives which the President clearly implied by the foregoing statements were the ratification
of the new Constitution and the establishment of a revolutionary government, the latter being
unnecessary, in his opinion, because precisely the Constitution had been ratified. The third
obvious alternative was entirely ruled out, namely, a return to the 1935 Constitution, for it was
the status quo under that Constitution that had caused “anarchy, confusion and misery.” The
message seems clear: rather than return to such status quo, he would heed the recommendation
of the Citizens’ Assemblies to establish a revolutionary government, because that would be the
only other way to carry out the reforms he had envisioned and initiated — reforms which, in all
fairness and honesty, must be given credit for the improved quality of life in its many aspects,
except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the
foregoing pronouncements, it is that the step taken in connection with the ratification of the
Constitution was meant to be irreversible, and that nothing
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anyone could say would make the least difference. And if this is a correct and accurate
assessment of the situation, then we would say that since it has been brought about by political
action and is now maintained by the government that is in undisputed authority and dominance,
the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms, President
Marcos has professed fealty to the Constitution. In “Today’s Revolution: Democracy” he says:
“I believe, therefore, in the necessity of Revolution as an instrument of individual and social change ... but
that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal.”
In his TV address of September 23, 1972, President Marcos told the nation:
“I have proclaimed martial law in accordance with the powers vested in the President by the Constitution
of the Philippines.
“xxx xxx xxx
“I repeat, this is not a military takeover of civil government functions. The Government of the Republic of
the Philippines which was established by our people in 1946 continues.
“xxx xxx xxx
“I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and
reform our society...
“I have had to use this constitutional power in order that we may not completely lose the civil rights and
freedom which we cherish...
“... We are against the wall. We must now defend the Republic with the stronger powers of the
Constitution.”
(Vital Documents, pp. 1-12; emphasis supplied).
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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 1935
Constitution. The only thing is that instead of 18-year-olds voting, we have allowed 15-year-olds the right 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 sufficient cause to
proclaim martial law but at the very least there is a danger of rebellion because so many of our soldiers have
been killed. You must remember this (martial law provision) was lifted from the American legislation that
was the fundamental law of our country.
“xxx xxx xxx.”
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs
to the President. We have earlier made reference to subjective factors on which this Court, to our
mind, is in no position to pass judgment. Among them is the President’s own assessment of the
will of the people as expressed through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and economic reforms he has started
or envisioned. If he should decide that there is no turning back, that what the people
recommended through the Citizens Assemblies, as they were reported to him, demand that the
action he took pursuant thereto be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of ratification
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that was followed was not in accordance with the 1935 Constitution and related statutes, we have
discharged our sworn duty as we conceive it to be. The President should now perhaps decide, if he
has not already decided, whether adherence to such procedure is weighty enough a consideration,
if only to dispel any cloud of doubt that may now and in the future shroud the nation’s Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not
the new Constitution, since its submission to the Citizens Assemblies, has found acceptance
among the people, such issue being related to the political question theory propounded by the
respondents. We have not tarried on the point at all since we find no reliable basis on which to
form a judgment. Under a regime of martial law, with the free expression of opinions through the
usual media vehicles restricted, we have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution. In any event, we do not find the issue decisive
insofar as our vote in these cases is concerned. To interpret the Constitution — that is judicial.
That the Constitution should be deemed in effect because of popular acquiescence — that is
political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
SEPARATE OPINION
BARREDO, J.:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of
the Supplemental Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the so
called Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are
amplifications of some of the grounds previously alleged and in the course of the unprecedented
five-day hearing that was held from February 12 to 16 last, more extensive and illuminating
arguments were
172

heard by Us, but, in my estimation, and with due recognition of the sincerity, brilliance and
eloquence of counsels, nothing more cogent and compelling than what had already been
previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason
why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the
vote I cast when these petitions were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the
significance to our people and in history of the individual stands of the members of the Court in
relation to said issues and to the final outcome of these cases, and considering that I reserved
before the filing of a more extended opinion, I will take this opportunity to explain further why I
hold that the 1973 Constitution is already in force, if only to clarify that apart from the people’s
right of revolution to which I made pointed reference in my previous opinion, I can see now, after
further reflection, that the vote of the people in the referendum in the Citizens Assemblies held
on January 10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed
more importantly as a political act than as a purely legal one with the result that such vote to
consider the 1973 Constitution as ratified without the necessity of holding a plebiscite in the form
followed in the previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women’s
suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution, 1940 of the re-
election of the President, the bicameral legislature and the Commission on Elections, 1947 of the
parity amendment and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional Convention, may be
deemed as a valid ratification substantially in compliance with the basic intent of Article XV of
the 1935 Constitution. If indeed this explanation may be considered as a modification of my

rationalization then, I wish to emphasize that my position as to the fundamental issue regarding
the enforceability of the new Constitution is even firmer now than ever before. As I shall
elucidate anon, paramount considerations of national import have led me to the conviction that
the best interests of all concerned would be best served by the Supreme Court holding that the
1973
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Constitution is now in force, not necessarily as a consequence of the revolutionary concept

previously suggested by me, but upon the ground that as a political, more than as a legal, act of
the people, the result of the referendum may be construed as a compliance with the substantiality
of Article XV of the 1935 Constitution.
I
The facts that gave rise to these proceedings are historical and well known. Generally, they
may be taken judicial notice of. They revolve around the purported ratification of the Constitution
of 1973 declared in Proclamation 1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on
March 16, 1967, delegates to a constitutional convention to propose amendments to the
Constitution of 1935 were elected in accordance with the implementing law, Republic Act 6132,
on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly began its
sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over
important positions and committees and an incomprehensible fear of overconcentrating powers in
their officers, the delegates went about their work in comparatively slow pace, and by the third
quarter of 1972 had finished deliberations and second-reading voting only on an insignificant
number of proposals — until September 21, 1972, when the President, not altogether
unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law throughout the
country. An attempt was made to have the Convention recessed until after the lifting of martial
law, and not long after the motion of Delegate Kalaw to such effect was turned down, the
activities within the assembly shifted to high gear. As if unmindful of the arrest and continued
detention of several of its members, the convention gathered swift momentum in its work, and on
November 30, 1972, it approved by overwhelming vote the draft of a complete constitution,
instead of mere specific amendments of particular portions of the Constitution of 1935. Needless
to say, before martial law was declared, there was full and unlimited coverage of the workings in
the convention by the mass media. At the same
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time, public debates and discussions on various aspects of proposed amendments were not
uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing “to
President Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the
proposed new Constitution on appropriate date as he shall determine and providing for necessary
funds therefor.” Acting under this authority, December 1, 1972, the President issued Presidential
Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for
January 15, 1973. This order contained provisions more or less similar to the plebiscite laws
passed by Congress relative to the past plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering
and enjoining the authorities to allow and encourage public and free discussions on proposed
constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered
the suspension the effects of martial law and lifted the suspension of privilege of the writ
of habeas corpus insofar as activities connected with the ratification of the draft constitution were
concerned. These two orders were not, however, to last very long. On January 7, 1973, the
President, invoking information related to him that the area of public debate and discussion had
opened by his previous orders was being taken advantage of by subversive elements to defeat the
purposes for which they were issued and to foment public confusion, withdrew said orders and
enjoined full and stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86
creating Citizens Assemblies “so as to afford ample opportunities for the citizenry to express their
views on important national issues” and one of the questions presented to said assemblies was:
“Do you like the plebiscite on the proposed Constitution to be held later” So, the same order of
January 7, 1973, General Order No. 20, the President ordered, “that the plebiscite scheduled to
be held January 15, 1973, be postponed until further notice.”
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In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A
providing as follows:
“PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays
(citizens assemblies) that have so far been established, the people would like to decide for themselves
questions or issues, both local and national, affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for expressing
the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due
recognition as constituting the genuine, legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on
certain specified questions such as the ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to the 1935
Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution as Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated
December 31, 1972, shall constitute the base for citizen participation in governmental affairs and their
collective views shall be considered in the formulation of national policies or programs and, wherever
practicable, shall be translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country,
like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in November 1973, and others in the future,
which shall
176

serve as guide or basis for action or decision by the national government;

3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a referendum on
important national issues, including those specified in paragraph 2 hereof, and submit results thereof to the
Department of Local Governments Community Development immediately thereafter, pursuant to express
will of the people as reflected in the reports gathered from the many thousands of barangays (citizens
assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and
seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
“PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the
Barangays (Citizens Assemblies) have petitioned the Office of the President to submit them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of
the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite in itself
in view of the fact that freedom of debate has always been limited to the leadership in political, economic
and social fields, and that it is now necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
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NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
in me vested by the Constitution, do hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No.
86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratification of the
Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local 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?
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“(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 it to be called?
“(6) Do you want martial law to continue?”
It is not seriously denied that together with the question the voters were furnished
“comments” on the said questions more or less suggestive of the answer desired. It may assumed
that the said “comments” came from official sources, albeit specifically unidentified. As
petitioners point out, the most relevant of these “comments” were the following:
“COMMENTS ON
“xxx xxx xxx
“QUESTION No. 2
“QUESTION No. 3
Constitution.
If the Citizens Assemblies approve of the new Constitution then the new Constitution should be deemed
ratified.”
The Solicitor General claims, and there seems to be no

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showing otherwise, that the results of the referendum were determined in the following manner:
“Thereafter, the results of the voting were collated and sent to the Department of Local Governments.
The transmission of the results was made by telegram, telephone, the provincial government SSB System in
each province connecting all towns; the SSB communication of the PACD connecting most provinces; the
Department of Public Information Network System; the Weather Bureau Communication System
connecting all provincial capitals and the National Civil Defense Network connecting all provincial capitals.
The certificates of results were then flown to Manila to confirm the previous figures received by the
aforementioned means of transmission. The certificates of results tallied with the previous figures taken
with the exception of few cases of clerical errors.
“The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies
operation at the Department wherein the identity of the barrio and the province was immediately given to a
staff in charge of each region. Every afternoon at 2:00 o’clock, the 11 regions submitted the figures they
received from the field to the central committee to tabulate the returns. The last figures were tabulated at
12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then communicated to the
President by the Department of Local Governments.”
The development culminated in the issuance by the President of Proclamation 1102 on

January 17, 1973. Said proclamation reads:
“PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is
subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in
chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of all
180

persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over,
citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizen to express their views
on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential Decree No. 86-A, dated
January 5, 1973, the following questions were posed before Citizens’ Assemblies or Barangays: Do you
approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty one (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted for its rejection;
while on the question as to whether or not the people would still like a plebiscite to be called to ratify the
new Constitution fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814)
answered that there was no need for plebiscite and that the vote of the Barangays (Citizens Assemblies)
should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) percent of the members of
the Barangays (Citizen Assemblies) are in favor of the New Constitution, the Katipunan ng Mga Barangay
has strongly recommended that the new Constitution should already be deemed ratified by the Filipino
people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an 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.
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Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.”
The first attempt to question the steps just enumerated taken by the President was in the so-
called Plebiscite Cases, ten in number, which were filed by different petitioners during the first
half of December 1972.1 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 first
publicized on January 11, 1973 were known, together with the “comments,” petitioners sensed
that a new and unorthodox procedure was being adopted to secure approval by the people of the
new Constitution, hence Counsel Tañada, not being satisfied with the fate of his urgent motion
for early decision of the above ten cases dated January 12, 1973, filed on January 15, 1973, his
supplemental motion seeking the prohibition against and injunction of the proceedings going on.
Principal objective was to prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners were apprehensively
foreseeing would be done — the issuance of some kind of proclamation, order or decree, declaring
that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same
day, January 15, which was Monday, to consider the supplemental motion as a supplemental
petition and to require the
_______________
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.
182

respondents to answer the same the next Wednesday, January 17th, before the hour of the
hearing of the petition which set for 9:30 o’clock in the morning of that day. The details what
happened that morning form part of the recital of facts the decision rendered by this Court in the
ten cases on January 22, 1973 and need not be repeated here. Suffice it to state no that before the
hearing could be closed and while Counsel Tañada was still insisting on his prayer for
preliminary injunction or restraining order, the Secretary of Justice arrived and personally
handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00
o’clock that same morning. In other words, the valiant and persistent efforts of petitioners and
their counsels were overtaken by adverse developments, and in the mind of the majority of the
members of the Court, the cases had become academic. For my part, I took the view that even on
the basis of the supplemental petition and the answer thereto filed by respondents, the Court
could already decide on the fundamental issue of the validity Proclamation 1102, as Justices
Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada’s pleading and
argument had anticipated its issuance, but the majority felt it was not ready to resolve the
matter, for lack, according them, of full ventilation, and so, the decision reserved petitioners the
filing of the “appropriate” cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be
inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the
point raised by Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have
been sued as President and President Pro Tempore of the Senate, to the effect that change in the
composition of the Supreme Court provided for the 1973 Constitution, from the 11-man tribunal
under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after
January 17, 1973 the date when Proclamation 1102 declared the new Constitution as ratified,
political nature and beyond our jurisdiction. The main consideration submitted in this connection
is that inasmuch as the number votes needed for a decision of this Court has been increased
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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 first as a prejudicial
question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which
event, it would be faced with the dilemma that if it acts either as the former or as the latter, it
would be prejudging the very matter in issue one way or the other, and, in effect, it would be
choosing between two constitutions, which is a political determination not within the Court’s
competence.
While I agree that the problem is at first blush rather involved, I do not share the view that
the premises laid down by counsel necessarily preclude this Court from taking a definite stand on
whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very
strongly that the issue should not be ignored or dodged, if only to make the world know that the
Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much
less lacking in courage or wisdom to resolve an issue that relates directly to its own composition.
What a disgrace it would be to admit that this Supreme Court does not know, to use a common
apt expression, whether it is fish or fowl. Withal, scholars and researchers who might go over our
records in the future will inevitably examine minutely how each of us voted and upon what
considerations we have individually acted, and, indeed, doubts may arise as to whether or not,
despite the general result we might announce, there had been the requisite number of votes for a
valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of
unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would suffice to
declare Proclamation 1102 ineffective, and if upon analysis of our respective opinions it should be
inferable therefrom that six of us have considered the matter before the Court as justiciable and
at the same time have found the procedure of ratification adopted in Presidential Decrees 86-A
and 86-B and related orders of the President as not being in conformity with Article
_______________
2 Executive Agreements are not included in the corresponding provision of the 1935 Constitution.
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XV of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our
decision dismiss these cases, even if we have it understood that by the vote of justices in favor of
such dismissal, We intended to mean the implementation or enforcement of the new Constitution
now being done could continue.
Be that as it may, I am against leaving such an important point open to speculation. By nature
I am averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I
should knowingly countenance is uncertainty as to the juridical significance of any decision of the
Court which is precisely being looked upon as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond
dispute — we cannot act in both capacities of a 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
both in force. Our inescapable duty is to make a choice between them, according to what law and
other considerations inherent to our function dictate. I cannot bear the thought that someone
may someday say that the Supreme Court of the Philippines once decided a case without knowing
the basis of its author to act or that it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in which the Court acting
in these cases, I hold that we have no alternative but adopt in the present situation the orthodox
rule that when validity of an act or law is challenged as being repugnant constitutional mandate,
the same is allowed to have effect until the Supreme Court rules that it is unconstitutional.
Stated differently, We have to proceed on the assumption that the new Constitution is in force
and that We are acting in these cases as the 15-man Supreme Court provided for there Contrary
to counsel’s contention, there is here no prejudgment for or against any of the two constitutions.
The truth of matter is simply that in the normal and logical conduct governmental activities, it is
neither practical nor wise to defer the course of any action until after the courts have ascertained
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their legality, not only because if that were to be the rule, the functioning of government would
correspondingly be undesirably hesitative and cumbersome, but more importantly, because the
courts must at the first instance accord due respect to the acts of the other departments, as
otherwise, the smooth running of the government would have to depend entirely on the
unanimity of opinions among all its departments, which is hardly possible, unless it is assumed
that only the judges have the exclusive prerogative of making and enforcing the law, aside from
being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my
knowledge, there is yet no country in the world that has recognized judicial supremacy as its
basic governmental principle, no matter how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the
assumption that this Court is still functioning under the 1935 Constitution. It is undeniable that
the whole government, including the provincial, municipal and barrio units and not excluding the
lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily,
presidential orders and decrees of the most legislative character affecting practically every aspect
of governmental and private activity as well as the relations between the government and the
citizenry are pouring out from Malacañang under the authority of said Constitution. On the other
hand, taxes are being exacted and penalties in connection therewith are being imposed under
said orders and decrees. Obligations have been contracted and business and industrial plans have
been and are being projected pursuant to them. Displacements of public officials and employees
in big numbers are going on in obedience to them. For the ten justices of the Supreme Court to
constitute an island of resistance in the midst of these developments, which even unreasoning
obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings within the judiciary
amount its different components, what with the lower courts considering such orders and decrees
as forming part of the law of the land in making their orders and decisions, whereas the
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Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or
ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of
the Supreme Court, and if the Court feels that it cannot in the meantime consider the
enforcement of the new Constitution, he can wait for its decision. Accepting the truth of this
assertion, it does necessarily follow that by this attitude of the President, considers the Supreme
Court as still operating under the Constitution. Quite on the contrary, it is a fact that he has
given instructions for the payment of the justices in accordance with the rate fixed in the New
Constitution. Not only that, official alter ego, the Secretary of Justice, has been shoving this
Court, since January 18, 1973, all matters related to the administrative supervision of the lower
courts which by the new charter has been transferred from the Department of Justice to the
Supreme Court, and as far as I know, President has not countermanded the Secretary’s steps in
that direction. That, on the other hand, the President has not augmented the justices of the Court
to complete the prescribed number of fifteen is, in my appraisal, of no consequence considering
that with the presence of ten justices who are the Court now, there is a working quorum, and the
addition of new justices cannot in anyway affect the voting on the constitutional questions now
before Us because, while there sufficient justices to declare by their unanimous vote illegality of
Proclamation 1102, the votes of the justices to added would only be committed to upholding the
same, since they cannot by any standard be expected to vote against legality of the very
Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is
that We are dealing here with a whole constitution that radically modifies or alters only the form
of our government from presidential parliamentary but also other constitutionally institutions
vitally affecting all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the
1973 Constitution is the same 1935 Constitution, with a few
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improvements. A cursory perusal of the former should convince anyone that it is in essence a new
one. While it does retain republicanism as the basic governmental tenet, the institutional
changes introduced thereby are rather radical and its social orientation is decidedly more
socialistic, just as its nationalistic features are somewhat different in certain respects. One
cannot but note that the change embraces practically every part of the old charter, from its
preamble down to its amending and effectivity clauses, involving as they do the statement of
general principles, the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the provisions on the national economy as well
as the patrimony of the nation, not to mention the distinctive features of the general provisions.
What is more, the transitory provisions notably depart from traditional and orthodox views in
that, in general, the powers of government during the interim period are more or less
concentrated in the President, to the extent that the continuation or discontinuance of what is
now practically a one-man-rule, is even left to his discretion. Notably, the express ratification of
all proclamations, orders, decrees and acts previously issued or done by the President, obviously
meant to encompass those issued during martial law, is a commitment to the concept of martial
law powers being implemented by President Marcos, in defiance of traditional views and
prevailing jurisprudence, to the effect that the Executive’s power of legislation during a regime of
martial law is all inclusive and is not limited to the matters demanded by military necessity. In
other words, the new constitution unlike any other constitution countenances the institution by
the executive of reforms which normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a
new one, are that (1) Section 16 of its Article XVII which provides that this constitution shall
“supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto”
and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and
courts as well as the tenure of all incumbent officials, not adversely affected by it, which would
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have been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that “(T)he incumbent members
of the Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may
continue in office (under the constitution) until they reach the age of seventy years, etc.” By
virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court
provided for therein 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 finally decide that
the 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 existence. On the other hand, if it is
assumed that We are 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 tantamount to accepting a position
he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the
ratification of the 1973 Constitution it purports to declare as having taken place as a result of the
referendum above-referred to is ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been “approved by a majority of the votes cast at an
election” in the manner prescribed by Article XV the Constitution of 1935. More specifically, they
maintain that the word “election” in the said Article has already acquired a definite accepted
meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no
other form of ratification can be considered contemplated by the framers of the Old Constitution
than that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four
which were held under the supervision of the Commission on
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Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the
referendum because, according to them the referendum was a farce and its results were
manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to have
submitted the final report to the President, which served as basis for Proclamation 1102, had no
official authority to render the same, and it is inconceivable and humanly impossible for anyone
to have been able to gather, tabulate and canvass the 15 million votes allegedly reported within
the short period of time employed. Of course, they also contend that in any event, there was no
proper submission because martial law per se creates constructive duress which deprives the
voters of the complete freedom needed for the exercise of their right of choice and actually, there
was neither time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that
the matter raised in the petitions is a political one which the courts are not supposed to inquire
into, and, anyway, there has been a substantial compliance with Article XV of the 1935
Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is that
the voting in the referendum resulted in the approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in
the Plebiscite Cases, I already made the observation that in view of the lack of solemnity and
regularity in the voting as well as in the manner of reporting and canvassing conducted in
connection with the referendum, I cannot say that Article XV of the Old Constitution has been
complied with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In
order, however, to make myself clearer on some relevant points, I would like to add a few
considerations to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face
of the Presidential certification through Proclamation 1102 itself that the New Constitution has
been approved by a majority of the people and
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having in mind facts of general knowledge which I have judicial notice of, I am in no position to
deny that the result of the referendum was as the President had stated. I can believe that the
figures referred to in the proclamation may not accurate, but I cannot say in conscience that all of
them are manufactured or prefabricated, simply because I saw with own eyes that people did
actually gather and listen discussions, if brief and inadequate for those who are abreast of
current events and general occurrences, and that they did vote. I believe I can safely say that
what I have seen have also been seen by many others throughout the country and unless it can be
assumed, which honestly, I do not believe to be possible, that in fact there were actually no
meetings held and no voting done in more places than those wherein there were such meetings
and votings, I am not prepared to discredit entirely the declaration that there was voting and
that the majority of the votes were in favor of the New Constitution. If in fact there were
substantially less than 14 million votes of approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens
Assemblies was to be in the nature merely of a loose consultation and not an outright submission
for purposes of ratification. I can see that at the outset, when the first set of questions was
released, such may have been the idea. It must not be lost sight of, however, that if the
newspaper reports are to be believed, and I say this only because petitioners would consider the
newspapers as the official gazettes of the administration, the last set of six questions were
included precisely because the reaction to the idea of mere consultation was that the people
wanted greater direct participation, thru the Citizens Assemblies, in 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 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
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expressed disapproval of the new Constitution, the logical consequence would have been the
complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is very
plain to see that since the majority has already approved the new Constitution, a plebiscite would
be superfluous. Clear as these rationalizations may be, it must have been thought that if the
holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding
the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity
clause, of the new Constitution. Oddly enough, the “comments” accompanying the questions do
strongly suggest this view. And as it turned out, the majority found no necessity in holding a
plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being
made of the point that as so framed, the thrust of the said question does not seek an answer of
fact but of opinion. It is argued that it would have been factual were it worded categorically thus
— Do you approve the New Constitution? The contention would have been weighty were it not
unrealistic. I remember distinctly that the observation regarding the construction of the subject
question was not originally made by any of the talented counsels for petitioners. It came from Mr.
Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy
of even professors of English. None of the other members of the Court, as far as I can recall, ever
noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it
more than passing attention. What I mean is that if neither any of the distinguished and learned
counsels nor any member of the Court understood the said question otherwise than calling for a
factual answer instead of a mere opinion, how could anyone expect the millions of unlettered
members of the Citizens Assemblies to have noticed the point brought out by Justice Castro?
Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis.
Besides, reading the question in the light of the accompanying “comment” corresponding to it in
particular, I am certain that any one who answered the same understood it in no other sense
than a direct inquiry as to whether or not, as a matter of fact,
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he approves the New Constitution, and naturally, affirmative answer must be taken as a
categorical vote of approval thereof, considering, particularly, that according to the reported
result of the referendum said answer was even coupled with the request that the President defer
the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that question to the deferment
of the convening of the interim assembly, the said answer is at best a conditional approval not
proper nor acceptable for purposes of ratification plebiscite. The contention has no basis. In
interest of accuracy, the additional answer proposed in pertinent “comment” reads as follows:
“But we do not want Ad Interim Assembly to be convoked etc.” On the assumption that the actual
answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a
condition. At most, the intention is no more than a suggestion or a wish.
As regards said “comments,” it must be considered that a martial law was declared, the
circumstances surrounding making of the Constitution acquired a different and more meaningful
aspect, namely, the formation of a new society. From the point of view of the President and on the
basis of intelligence reports available to him, the only way to meet situation created by the
subversive elements was to introduce immediately effective reforms calculated to redeem the
people from the depth of retrogression and stagnation caused by rampant graft and corruption in
high places, influence peddling, oligarchic political practices, private armies, anarchy,
deteriorating conditions of peace and order, the so inequalities widening the gap between the rich
and the poor, and many other deplorable long standing maladies crying for early relief and
solution. Definitely, as in the case of rebellious movement that threatened the Quirino
Administration, the remedy was far from using bullets alone. If a constitution was to be approved
as an effective instrument towards the eradication of such grave problems, it had to be approved
without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have
in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the
context of actualities, the evident
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objective in having a new constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these considerations in
mind can the “comments” already referred to be properly appreciated. To others said “comments”
may appear as evidence of corruption of the will of those who attended the assemblies, but
actually, they may also be viewed in the same light as the sample ballots commonly resorted to in
the elections of officials, which no one can contend are per se means of coercion. Let us not forget
that the times are abnormal, and prolonged dialogue and exchange of ideas are not generally
possible, nor practical, considering the need for faster decisions and more resolute action. After
all voting on a whole new constitution is different from voting on one, two or three specific
proposed amendments, the former calls for nothing more than a collective view of all the
provisions of the whole charter, for necessarily, one has to take the good together with the bad in
it. It is rare for anyone to reject a constitution only because of a few specific objectionable
features, no matter how substantial, considering the ever present possibility that after all it may
be cured by subsequent amendment. Accordingly, there was need to indicate to the people the
paths open to them in their quest for the betterment of their conditions, and as long as it is not
shown that those who did not agree to the suggestions in the “comments” were actually compelled
to vote against their will, I am not convinced that the existence of said “comments” should make
any appreciable difference in the court’s appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during martial law detracts
somehow from the value that the referendum would otherwise have had. As I intimated, however,
in my former opinion, it is not fair to condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the objectionable features of martial law
have not actually materialized, if only because the implementation of martial law since its
inception has been generally characterized by restraint and consideration, thanks to the
expressed wishes of the President that the same be made “Philippine style,” which means without
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the rigor that has attended it in other lands and other times. Moreover, although the restrictions
on the freedom of speech, the press and movement during martial law do have their
corresponding adverse effects on the area of information which should be open to a voter, in its
real sense what “chills” his freedom of choice and mars his exercise of discretion is suspension of
the privilege of the writ of habeas corpus. The reason is simply that a man may freely and
correctly vote even if the needed information he possesses as to the candidates or issues being
voted upon is more or less incomplete, but when he is subject to arrest and detention without
investigation and without being informed of the cause thereof, that is something else which may
actually cause him to cast a captive vote. Thus it is the suspension of the writ of habeas
corpus accompanying martial law that can cause possible restraint on the freedom choice in an
election held during martial law. It is a fact, however, borne by history and actual experience,
that in the Philippines, the suspension of the privilege of the writ habeas corpus has never
produced any chilling effect upon the voters, since it is known by all that only those who run afoul
the law, saving inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in the elections 1951
and 1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino
voters gave the then opposition parties overwhelming if not sweeping victories, in defiance of the
respective administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of
the referendum may considered as sufficient basis for declaring that the New Constitution has
been ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in
point of law, I find neither strict nor substantial compliance. The foregoing discussion is only to
counter, if I may, certain impression regarding the general conditions obtaining during and in
relation to the referendum which could have in one way or another affected the exercise of the
freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the end
that as far as the same conditions may be relevant in my subsequent discussions of the
acceptance by the people of the New Constitution they may also be considered.
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IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the
people. And on this premise, my considered opinion is that the Court may no longer decide these
cases on the basis of purely legal considerations. Factors which are non-legal but nevertheless
ponderous and compelling cannot be ignored, for their relevancy is inherent in the issue itself to
be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of
whether or not there was proper submission under Presidential Decree No. 73 is justiciable, and I
still hold that the propriety of submission under any other law or in any other form is
constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon
by petitioners are to this effect. In view, however, of the factual background of the cases at bar
which include ratification itself, it is necessary for me to point out that when it comes to
ratification, I am persuaded that there should be a boundary beyond which the competence of the
courts no longer has any reason for being, because the other side is exclusively political territory
reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may
feel there is not enough indication of such acceptance in the record and in the circumstances the
Court can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in
inquiring into such fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the
purposes of these cases, to judicial tape and measure, to find out with absolute precision the
veracity of the total number of votes actually cast. After all, the claims that upon a comparison of
conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as I
can figure out, suffice to overcome the outcome officially announced. Rather than try to form a
conclusion out of the raw evidence before Us which the parties did not care to really complete, I
feel safer by
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referring to the results announced in the proclamation itself. Giving substantial allowances for
possible error and downright manipulation, it must not be overlooked that, after all, their having
been accepted and adopted by the President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate officials, elevated them to the category
of an act of a coordinate department of the government which under the principle separation of
powers is clothed with presumptive correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in these cases does not exist. In any event,
considering that due to the unorthodoxy of the procedure adopted and the difficulty of an
accurate checking of all the figures, I am unable to conceive of any manageable means of
acquiring information upon which to predicate a denial, I have no alternative but to rely on what
has been officially declared. At this point, I would venture to express the feeling that if it were
not generally conceded that there has been sufficient showing of the acceptance in question by
this time, there would have been already demonstrative and significant indications of a rather
widespread, if not organized resistance in one form or another. Much as they are to be given due
recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to
the filing of these cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec,
41 SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment
to the Constitution of 1935, to be valid, must appear to have been made in strict conformity with
the requirements of Article XV thereof. What is more, that decision asserted judicial competence
to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe
in the correctness of those views and I would even add that I sincerely feel it reflects the spirit of
the said constitutional provision. Without trying to strain any point however, I, submit the
following considerations in the context of the peculiar circumstances of the cases now at bar,
which are entirely different from those in the backdrop of the Tolentino rulings I have referred to.
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1. Consider that in the present case what is involved is not just an amendment of a particular
provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely
new Constitution that is being proposed. This important circumstance makes a great deal of
difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the
petitioner in the case I have just referred to is, now inviting Our attention to the exact language
of Article XV and suggesting that the said Article may be strictly applied to proposed
amendments but may hardly govern the ratification of a new Constitution. It is particularly
stressed that the Article specifically refers to nothing else but “amendments to this Constitution”
which if ratified “shall be valid as part of this Constitution.” Indeed, how can a whole new
constitution be by any manner of reasoning an amendment to any other constitution and how can
it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already
somehow hinted this point when I made reference in the resolution denying the motion for
reconsideration to the fact that Article XV must be followed “as long as any amendment is
formulated and submitted under the aegis of the present Charter.” Said resolution even added.
“(T)his is not to say that the people may not, in the exercise of their inherent revolutionary
powers, amend the Constitution or promulgate an entirely new one otherwise.”
It is not strange at all to think that the amending clause of a constitution should be confined in
its application only to proposed changes in any part of the same constitution itself, for the very
fact that a new constitution is being adopted implies a general intent to put aside the whole of the
old one, and what would be really incongrous is the idea that in such an eventuality, the new
Constitution would subject its going into effect to any provision of the constitution it is to
supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the
New Constitution. My understanding is that generally, constitutions are self-born, they very
rarely, if at all, come into being, by virtue of any provision of another
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constitution.3 This must be the reason why every constitution has its own effectivity clause, so
that if, the Constitutional Convention had only anticipated the idea of the referendum and
provided for such a method to be used in the ratification of the New Constitution, I would have
had serious doubts as to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but
take into consideration the forces and the circumstances dictating the replacement. From the
very nature of things, the proposal to ordain a new constitution must be viewed as the most
eloquent expression of a people’s resolute determination to bring about a massive change of the
existing order, a meaningful transformation of the old society and a responsive reformation of the
contemporary institutions and principles. Accordingly, should any question arise as to its
effectivity and there is some reasonable indication that the new charter has already received in
one way or another the sanction of the people, I would hold that the better rule is for the courts to
defer to the people’s judgment, so long as they are convinced of the fact of their approval,
regardless of the form by which it is expressed provided it be reasonably feasible and reliable.
Otherwise stated, in such instances, the courts should not bother about inquiring into compliance
with technical requisites, and as a matter of policy should consider the matter 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
_______________
3 It must be recalled that in the Tolentino case, the Constitutional Convention intended to submit one amendment
which was to form part of the Constitution still being prepared by it separately from the rest of the other parts of such
constitution still unfinished, and We held that a piece-meal submission was improper. We had no occasion to express any
view as to how a whole new Constitution may be ratified.
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regular session. It must be assumed that being composed of experienced, knowledgeable and
courageous members, it would not have been difficult for said parliamentary bodies to have
conceived some ingenious way of giving evidence of their determined adherence to the
Constitution under which they were elected. Frankly, much as I admire the efforts of the handful
of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I
do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has
informed the court, there was noting to stop the senators and the congressmen to meet in any
other convenient place and somehow officially organize themselves in a way that can logically be
considered as a session, even if nothing were done than to merely call the roll and disperse.
Counsel Tolentino even pointed out that if there were not enough members to form a quorum,
any smaller group could have ordered the arrest of the absent members. And with particular
relevance to the present cases, it was not constitutionally indispensable for the presiding officers
to issue any call to the members to convene, hence the present prayers for mandamus have no
legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing exercised the option given to them to join
the Interim National Assembly under the New Constitution, thereby manifesting their
acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of
the government under the 1935 Constitution, two, the Executive and the Legislative, have
already accepted the New Constitution and recognized its enforceability and enforcement, I
cannot see how this Supreme Court can by judicial fiat hold back the political developments
taking place and for the sake of being the guardian of the Constitution and the defender of its
integrity and supremacy make its judicial power prevail against the decision of those who were
duly chosen by the people to be their authorized spokesmen and representatives. It is not alone
the physical futility of such a gesture that concerns me. More than that,
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there is the stark reality that the Senators and the Congressmen, no less than the President,
have taken the same oath of loyalty to the Constitution that we, the Justices, have taken and
they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the
representatives of the people, they have already opted to accept the New Constitution as the more
effective instrument for fulfillment of the national destiny, I really wonder if there is even any
idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the
1935 Constitution. Conscious of the declared objectives of the new dispensation and cognizant of
the decisive steps being with the least loss of time, towards their accomplishment, cannot but feel
apprehensive that instead of serving the best interests of our people, which to me is in reality the
real meaning of our oath of office, the Court might be standing in the way of the very thing our
beloved country needs to retrieve its past glory and greatness. In other words, it is my conviction
that what these cases demand most of all is not a decision demonstrative of our legal erudition
and Solomonic wisdom but an all rounded judgment resulting from the consideration of all
relevant circumstances, principally the political, or, in brief, a decision more political than legal,
which a court can render only by deferring to the apparent judgment of the people and the
announcement thereof by the political departments of the government and declaring the matter
non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I
cannot agree with the Solicitor General that in the legal sense, there has been at least
substantial compliance with Article XV of the 1935 Constitution, but what I can see is that in a
political sense, the answers to the referendum questions were not given by the people as legal
conclusions. I take it that when they answered that by their signified approval of the New
Constitution, they do not consider it necessary to hold a plebiscite, they could not have had in
mind any intent to do what was constitutionally improper. Basically accustomed to proceed along
constitutional channels, they must have acted in the honest conviction that what was being done
was in conformity with
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prevailing constitutional standards. We are not to assume that the sovereign people were
indulging in a futile exercise of their supreme political right to choose the fundamental charter by
which their lives, their liberties and their fortunes shall be safeguarded. In other words, we must
perforce infer that they meant their decision to count, and it behooves this Court to render
judgment herein in that context. It is my considered opinion that viewed understandingly and
realistically, there is more than sufficient ground to hold that, judged by such intent and,
particularly, from the political standpoint, the ratification of the 1973 Constitution declared in
Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when it
is considered that the most important element of the ratification therein contemplated is not in
the word “election,” which conceivably can be in many feasible and manageable forms but in the
word “approved” which may be said to constitute the substantiality of the whole article, so long as
such approval is reasonably ascertained. In the last analysis, therefore, it can be rightly said,
even if only in a broad sense, that the ratification here in question was constitutionally justified
and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal
grounds, the same should be dispelled by viewing the situation in the manner suggested by
Counsel Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above,
in the Plebiscite Cases — that is, as an extra constitutional exercise by the people, under the
leadership of President Marcos, of their inalienable right to change their fundamental charter by
any means they may deem appropriate, the moment they are convinced that the existing one is
no longer responsive to their fundamental, political and social needs nor conducive to the timely
attainment of their national destiny. This is not only the teaching of the American Declaration of
Independence but is indeed, a truth that is self-evident. More, it should be regarded as implied in
every constitution that regardless of the language of its amending clause, once the people have
given their sanction to a new charter, the latter may be deemed as constitutionally permissible
even from the point of view of the preceding constitution. Those who may feel restrained to
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consider this view out of respect to the import of Tolentino vs. Comelec, supra, would be well
advised to bear in mind that the case was decided in the context of submission, not accomplished
ratification.
V
The language of the disputed amending clause of the 1935 Constitution should not be deemed
as the be all and end all the nation. More important than even the Constitution itself with all its
excellent features, are the people living under it — their happiness, their posterity and their
national destiny. There is nothing that cannot be sacrificed in the pursuit of these objectives,
which constitute the totality of the reasons for national existence. The sacred liberties and
freedom enshrined in it and the commitment and consecration thereof to the forms of democracy
we have hitherto observed are mere integral parts of this totality; they are less important by
themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present
petitions, the Court would be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the qualified curtailment of individual liberties now
being practiced, and this would amount, it is feared, to a repudiation of our oath to support and
defend the Constitution of 1935. This is certainly something one must gravely ponder upon.
When I consider, however, that the President, the Vice President, the members of both Houses of
Congress, not to speak of all executive departments and bureaus under them as well as all the
lower courts, including the Court of Appeals have already accepted the New Constitution as an
instrument of a meaningful 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 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
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Constitution of 1935, they have so encased themselves within its provisions and may, therefore,
no longer take measures to redeem themselves from the situation brought about by the
deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that
any people can be so stifled and enchained. In any event, I consider it a God-given attribute of the
people to disengage themselves, if necessary, from any covenant that would obstruct their taking
what subsequently appears to them to be the better road to the promotion and protection of their
welfare. And once they have made their decision in that respect, whether sophisticatedly or
crudely, whether in legal form or otherwise, certainly, there can be no court or power on earth
that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of
Counsels Tañada and Salonga that these cases be decided on the basis of conscience. That is
exactly what I am doing. But if counsel mean that only by granting their petitions can this Court
be worthily the bulwark of the people’s faith in the government, I cannot agree, albeit my
admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their
patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that
these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear
playing opposite roles, as long as we are all animated by sincere love of country and aim
exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio,
Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations, Quezon,
Osmeña, Roxas, Laurel and Recto, to mention only some of them, had their differences of views —
and they did not hesitate to take diametrically opposing sides — that even reached tragic
proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important
than loyalty to any particular precept or provision of the Constitution or to the Constitution itself.
My oath to abide by the Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
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In this momentous juncture of our history, what is imperative is national unity. May God
grant that the controversies the events leading to these cases have entail will heal after the
decision herein is promulgated, so that all us Filipinos may forever join hands in the pursuit of
our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and
prohibition without costs.

MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure
for the ratification of constitutional amendments or of a new Constitution and that such
procedure was no complied with, the validity of Presidential Proclamation No. 1102 is a political,
not a justiciable, issue; for it is inseparably or inextricably link with and strikes at, because it is
decisive of, the validity of ratification and adoption of, as well as acquiescence of people in, the
1973 Constitution and the legitimacy of the government organized and operating thereunder.
And being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political
question enunciated in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the
this view will not do violence to rights vested under the new Constitution, to international
commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-
judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973
Constitution and the government established thereunder, and will dissipate any confusion in the
minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as
exercising the rights and performing the obligations defined by the new Constitution, and decrees
and orders issued in implementation of the same and cooperating with the administration in the
renovation of our social, economic and political system as re-structured by the 1973 Constitution
and by the implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-526, 1892).
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In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court,
defined a political question as one which, under the Constitution, is “to be decided by the people
in their sovereign capacity, or in regard to which full discretionary authority had been delegated
to the Legislature or Executive branch of the government.” (Tañada, et al. vs. Cuenco, et
al., supra).
Article XV of the 1935 Constitution provides: “Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for ratification.” Under Article XV of the 1935
Constitution, the power to propose constitutional amendments is vested in Congress or in a
constitutional convention; while the power to ratify or reject such proposed amendments or new
Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102
would inevitably render inoperative the 1973 Constitution, which is in fact the express prayer of
the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or
adoption — even if it deviates from or violates the procedure delineated therefore by the old
Constitution — once the new Constitution is ratified, adopted and/or acquiesced in by the people
or ratified even by a body or agency not duly authorized therefor but is subsequently adopted or
recognized by the people and by the other official organs and functionaries of the government
established under such a new Constitution, this Court is precluded from inquiring into the
validity of such ratification, adoption or acquiescence and of the consequent effectivity of the new
Constitution. This is as it should be in a democracy, for the people are the repository of all
sovereign powers as well as the source of all governmental authority (Pole vs. Gray, 104 SO 2nd
841 [1958]). This basic democratic concept is expressly restated in Section 1 of Article II of the
Declaration of Principles of the 1935 and 1973 Constitutions, thus: “Sovereignty resides in the
people and all government authority emanates from them.”
The legality of the submission is no longer relevant; because the ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities
therein which are deemed mandatory before
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submission as they are considered merely directory after such ratification or adoption or
acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and
later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Amendment Cases
(24 Kansas 700 & 710 Reprint 499, 506): “The two important, vital elements of the Legislature and
a majority of the popular vote. Beyond these, other provisions are mere machineries and forms.
They may not be disregarded, because by them certainty as to the essentials is secured. But they
are not themselves the essentials.” (Cited in Larken vs. Gronna, 285 NW 59, 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:
“x x x Thus the political departments of the government dealt with the effect of both previous rejection and
attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification
x x x. This decision by the political departments of the Government as to the validity of the adoption of the
Fourteenth amendment has been accepted.
“We think that in accordance with this historic precedent the question of the efficacy of ratifications by
state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a
political question pertaining to the political departments, with the ultimate authority in the Congress in the
exercise of its control over the promulgation of the adoption of the amendment.”
This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which
Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
“The Constitution grants Congress exclusive power to control submission of constitutional amendments.
Final determination by Congress that ratification by three-fourths of the States has taken place ‘is
conclusive upon the courts.’ In the exercise of that power, Congress, of course, is governed by the
Constitution. However,
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whether submission, intervening procedure or Congressional determination of ratification conforms to the

commands of the Constitution, calls for decisions by a ‘political department’ of questions of a type which this
Court has frequently designated ‘political.’ And decision of a ‘political question’ by the ‘political department’
to which the Constitution has committed it ‘conclusively binds the judges, as well as all other officers,
citizens and subjects of...government.’ Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the
Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that the
Court’s opinion in the present case even impliedly assumes a power to make judicial interpretation of the
exclusive constitutional authority of Congress over submission and ratification of amendments, we are
unable to agree...” (American Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place
great reliance — that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such proposed amendment by the
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid
cases refers to only the propriety of the submission of a proposed constitutional amendment to
the people for ratification, unlike the present petitions, which challenge inevitably the validity of
the 1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people.
As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the government operating
thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
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“Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the
general grant of legislative powers to Congress. It is part of the inherent powers of the people — as the
repository of sovereignty in a republican state, such as ours — to make, and hence, to amend their own
Fundamental Law. Congress may propose amendments to the same explicitly grants such power. Hence,
when exercising the same, it is said that Senators and Members of the House of Representatives act, not as
members, but as component elements of a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the people, when performing the same
function, for their authority does not emanate from the Constitution — they are the very source of all powers
of government, including the Constitution itself.” (21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil.
1) that both the proposal to amend and the ratification of such a constitutional amendment are
political in nature forming as they do the essential parts of one political scheme — the amending
process. WE merely stated therein that the force of the ruling in the said case of Mabanag vs.
Lopez Vito has been weakened by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue submitted thereto as a
political one, declined to pass upon the question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution — which was being submitted to the people for
ratification — satisfied the three fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, Avelino vs. Cuenco,
Tañada vs. Cuenco and Macias vs. Commission on Elections. In the first, we held the officers and employees
of the Senate Electoral Tribunal are supervision and control, not of that of the Senate President, claimed by
the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum
in the Senate; in the third we nullified the election, by Senators belonging to the party having the largest
number of votes in said chamber purporting to act on behalf of the party having the second largest number
of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of
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Congress purporting to apportion the representative districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases, that the issues
therein raised were political questions the determination of which is beyond judicial review. (21 SCRA pp.
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 inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter
should be deemed modified accordingly.” (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or
acquiescence by the people in the 1973 Constitution, remains a political issue removed from the
jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the
impropriety of the submission of a proposed constitutional amendment. Courts do not deal with
propriety or wisdom or absence of either of an official act or of a law. Judicial power concerns only
with the legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the
existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the
political department of the government.
The classic example of an illegal submission that did not impair the validity of the ratification
or adoption of a new Constitution is the case of the Federal Constitution of the United States. It
should be recalled that the thirteen (13) original states of the American Union — which
succeeded in liberating themselves from England after the revolution which
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began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the
surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit.,
Vol. I, 1933 Ed., p. 776) — adopted their Articles of Confederation and Perpetual Union, that was
written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p.
525). About six thereafter, the Congress of the Confederation passed a resolution on February 21,
1787 calling for a Federal Constitutional Convention “for the sole and express purpose of revising
the articles of confederation x x x.” (Appendix I, Federalist, Modern Library ed., p. 577, emphasis
supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:
“The articles of this confederation shall be inviolably observed in every state, and the union shall be
perpetual; nor shall any alterations at any time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.”
(See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual
Union for the alteration for the ratification of the Federal Constitution as drafted by the
Philadelphia Convention were not followed. Fearful the said Federal Constitution would not be
ratified by the legislatures as prescribed, the Philadelphia Convention adopted a resolution
requesting the Congress of the Confederation to pass a resolution providing that the Constitution
should be submitted to elected state conventions and if ratified by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
“It would have been a counsel of perfection to consign the new
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constitution to the tender mercies of the legislatures of each and all of the 13 states. Experience clearly
indicated that ratification then would have had the same chance as the scriptural camel passing through the
eye of a needle. It was therefore determined to recommend to Congress that the new Constitution be submitted
to conventions in the several states especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified by nine of the thirteen states x x x.” (The
Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:

“The Convention, anticipating that the influence of many state politicians would be Antifederalist,
provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting that
Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect as
soon as nine states ratified. The convention method had the further advantage that judges, ministers, and
others ineligible to state legislatures, could be elected to a convention. The nine-state provision was, of
course, mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry on
federal government until relieved, formally submitted the new constitution to the states and politely faded
out before the first presidential inauguration.” (The Oxford History of the Am. People, by Samuel Eliot
Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the
last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27 — by the state conventions
and not by all thirteen (13) state legislatures as required by Article XIII of the Articles of
Confederation and Perpetual Union aforequoted — and in spite of the fact that the Federal
Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill
of Rights and of a provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent amendments to the
Federal Constitution. The doctrine of judicial review has become part of American constitutional
law only by virtue of a judicial pronouncement
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by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the ratification of the
American Constitution, nor against the legitimacy of the government organized and functioning
thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated
the principle that the validity of a new or revised Constitution does not depend on the method of
its submission or ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or acquiescence is all that is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
“No case identical in its facts with the case now under consideration has been called to our attention, and
we have found none. We think that the principle which we apply in the instant case was very clearly applied
in the creation of the constitution of the United States. The convention created by a resolution of Congress had
authority to do one thing, and one only, to wit, amend the articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a new constitution. In this manner was the constitution of the
United States submitted to the people and it became operative as the organic law of this nation when it had
been properly adopted by the people.
“Pomeroy’s Constitutional Law, p. 55, discussing the convention that formulated the constitution of the
United States, has this to say: ‘The convention proceeded to do, and did accomplish, what they were not
authorized to do by a resolution of Congress that called them together. That resolution plainly contemplated
amendments to the articles of confederation, to be submitted to and passed by the Congress, and afterwards
ratified by all the State legislatures, in the manner pointed out by the existing organic law. But the
convention soon became convinced that any amendments were powerless to effect a cure; that the disease was
too deeply seated to be reached such tentative means. They saw that the system they were called to improve
must be totally abandoned, and that the national idea must be re-established at the center of their political
society. It was
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objected by some members, that they had no power, no authority, to construct a new government. They had
no authority, if their decisions were to be final; and no authority whatsoever, under the articles of
confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and
that they as well as any private individuals, and any private individuals as well as they, had a right to
propose a plan of government to the people for their adoption. They were, in fact, a mere assemblage of
private citizens, and their work had no more binding sanction than a constitution drafted by Mr. Hamilton
in his office would have had. The people, by their expressed will, transformed this suggestion, this proposal,
into an organic law, and the people might have done the same with a constitution submitted to them by a
single citizen.’
xx xx xx xx xx xx xx
“xx When the people adopt a completely revised or new constitution, the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people and only the fiat of the people,
can breathe life into a constitution.
xx xx xx xx xx xx
“x x x We do not hesitate to say that a court is never justified in placing by implication a limitation upon
the sovereign. This would be an authorized exercise of sovereign power by the court. In State v. Swift, 69 Ind.
505, 519, the Indiana Supreme Court said: ‘The people of a State may form an original constitution, or
abrogate an old one and form a new one, at any time, without any political restriction except the
constitution of the United States; x x x.’ (37 SE 327-328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
“It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold that
the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any means follow
that the amendment is not a part of our state Constitution. In the recent case of Taylor vs.
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers administering the state government, and by the
people, and being in force without opposition, must be regarded as an existing Constitution irrespective of the
question as to whether or not the
214

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; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the ratification and
adoption of the American Constitution, in spite of the fact that such ratification was in clear
violation of the prescription on alteration and ratification of the Articles of Confederation and
Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historical fact
by calling the Federal Constitution of the United States as a revolutionary one, invoking the
opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary
constitution because it did not obey the requirement that the Articles of Confederation and
Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This
opinion does not cite any decided case, but merely refers to the footnotes on the brief historic
account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their
main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by
Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in
Chapter XVIII captioned “Revolutionary Constitution Making, 1775-1781” (pp. 270-281). In
Chapter XX on “The Creative Period in Politics, 1785-1788,” Professor Morison delineates the
genesis of the Federal Constitution, but does not refer to it even implicitly as revolutionary
constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary
from the view point of 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, x x x.” (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
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VOL. 50, MARCH 31, 1973 215

revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of the
United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won
their independence and long after popular support for the government of the Confederation had
stabilized was not a product of a revolution. The Federal Constitution was a “creation of the brain
and purpose of man” in an era of peace. It can only be considered revolutionary in the sense that
it is a radical departure from its predecessor, the Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not
the successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement
is so obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the
validity and enforceability of the 1973 Constitution and of the government established and
operating thereunder. Petitioners pray for a declaration that the 1973 Constitution is inoperative
(L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 1973
Constitution and the inevitable conclusion is that the government organized and functioning
thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and not justiciable, had
long been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581),
affirmed in the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated
in 1912 in the case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118,
133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and
Beckham cases, it is sufficient for us to quote the decision in Pacific States Telephone and
Telegraph Co., supra, penned by Mr. Chief Justice White, who re-stated:
“In view of the importance of the subject, the apparent misapprehension on one side and seeming
misconception on the other, suggested by the argument as to the full significance of the
216

previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length
than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling
case — Luther v. Borden, 7 How. 1, 12 L.ed. 581.
xx xx xx xx
“x x x On this subject it was said (p. 38):
“ ‘For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it should be
decided that the character government had no legal existence during the period of time above mentioned, —
if it had been annulled by the adoption of the opposing government, — then the laws passed by its legislature
during that time were nullities; its taxes wrongfully collected, its salaries and compensations to its officers
illegally paid; its public accounts improperly settled and the judgments and sentences of its courts in civil
and criminal cases null and void, and the officers who carried their decisions into operation answerable as
trespassers, if not in some cases as criminals.’
xx xx xx xx
“ ‘The fourth section of the fourth article of the Constitution of the United States shall guarantee to every
state in the Union a republican form of government, and shall protect each of them against invasion; and on
the application of the Legislature or of the Executive (when the legislature cannot be convened) against
domestic violence.
“ ‘Under this article of the Constitution it rests with Congress to decide what government is established
one in a state. For, as the United State guarantee to each state a republican government, Congress must
necessarily decide what government is established in the state before it can determine whether it is republican
or not. And when the senators and representatives of a state are admitted into the Councils of the Union, the
authority of the government under which they were appointed, as well as its republican character, is
recognized by the proper constitutional authority. And its decision is binding on every other department of the
government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not
last long enough to bring the matter to this issue; and as no senators or representatives were elected under
the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the
controversy. Yet the right to decide is
217
VOL. 50, MARCH 31, 1973 217

placed there and not in the courts.”

xx xx xx
“x x x 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.”
xx xx xx xx
“ ‘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.’
xx xx xx xx
“As the issues presented, in their very essence, are, and have long since by this Court been, definitely
determined to be political and governmental, and embraced within the scope of the scope of the powers
conferred upon Congress, and not, therefore within the reach of judicial power, it follows that the case
presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for want
of jurisdiction.” (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention

without authority therefor
218

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

“While constitutional procedure for adoption or proposal to amend the constitution must be duly followed,
without omitting any requisite steps, courts should uphold amendment, unless satisfied that the
Constitution was violated in submitting the proposal. xx xx Substance more than form must be regarded in
considering whether the complete constitutional system for submitting the proposal to amend the constitution
was observed.”
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
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VOL. 50, MARCH 31, 1973 219


“There may be technical error in the manner in which a proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes part of the Constitution.
Legal complaints to the submission may be made prior to taking the vote, but, if once sanctioned, the
amendment is embodied therein, and cannot be attacked, either directly or collaterally, because of any
mistake antecedent thereto. Even though it be submitted at an improper time, it is effective for all purposes
when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126 A. 263.” (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid
upon ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex
parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court
upheld this principle and stated that: “The authorities are almost uniform that this ratification of
an unauthorized act by the people (and the people are the principal in this instance) renders the
act valid and binding.”
It has likewise been held that it is not necessary that voters ratifying the new Constitution are
registered in the book of voters; it is enough that they are electors voting on the new Constitution.
(Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court
of Wisconsin ruled that “irregularity in the procedure for the submission of the proposed
constitutional amendment will not defeat the ratification by the people.”
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama
Supreme Court pronounced that “the irregularity in failing to publish the proposed constitutional
amendment once in each of the 4 calendar weeks next preceding the calendar week in which the
election was held or once in each of the 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
220

Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
irregularities or illegalities committed in the procedure for submission of the proposed
constitutional amendment to the people for ratification consisted of: “(a) the alleged failure of the
county election commissioners of the several counties to provide a sufficient number of ballot
boxes ‘secured by good and substantial locks,’ as provided by Section 3249, Code of 1942, Rec., to
be used in the holding of the special election on the constitutional amendment, and (b) the alleged
failure of the State Election Commissioners to comply with the requirements of Code Sections
3204 and 3205 in the appointment of election commissioners in each of the 82 counties. The
irregularities complained of, even if proved, were not such irregularities would have invalidated
the election.” (Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the Constitutional Convention and
during the deliberations of the Constitutional Convention from June 1, 1971 until martial law
was proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which
have long been desired by the people, had been thoroughly discussed in the various committees of
the Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the
media of information. Many of the decrees promulgated by the Chief Executive from Sept. 22,
1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article
XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot freely
vote for these reforms and are not complying with the implementing decrees promulgated by the
President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951
and 1971 when the opposition won six out of eight senatorial seats despite the suspension of the
privileges of the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA
448), which suspension implies constraint on individual freedom as the proclamation
221
VOL. 50, MARCH 31, 1973 221

of martial law. In both situations, there is no total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of
the Legislative and Executive branches of the government elected and/or appointed under the
1935 Constitution have either recognized or are now functioning under the 1973 Constitution,
aside from the fact of its ratification by the sovereign people through the Citizens Assemblies.
Ninety-five (95) of a total of one hundred ten (110) members of the House of Representatives
including the Speaker and the Speaker Pro Tempore as well as about eleven (11) Congressmen
who belong to the Liberal Party and fifteen (15) of a total of twenty-four (24) senators including
Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim Assembly,
according to the certification of the Commission on Elections dated February 19, 1973 (Annex
Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165). Only the five (5) petitioners in
L-36165 close their eyes to a fait accompli. All the other functionaries recognize the new
government and are performing their duties and exercising their powers under the 1973
Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial
bodies created by presidential decrees have decided some criminal, civil and administrative cases
pursuant to such decrees. The foreign ambassadors who were accredited to the Republic of the
Philippines before martial law continue to serve as such in our country; while two new
ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution
on January 17, 1973. Copies of the 1973 Constitution had been furnished the United Nations
Organization and practically all the other countries with which the Philippines has diplomatic
relations. No adverse reaction from the United Nations or from the foreign states has been
manifested. On the contrary, our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue to remain in their posts
and are performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the 1973
Constitution by requiring all election
222

registrars to register 18-year olds and above whether literates or not, who are qualified electors
under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents Puyat
and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the
government which is enforcing the same for over 10 weeks now With the petitioners herein,
secessionists, rebels and subversives as the only possible exceptions, the rest of the citizenry are
complying with decrees, orders and circulars issued by the incumbent President implementing
the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson, 18 SW 522:
“If a set of men, not selected by the people according to the forms of law, were to formulate an instrument
and declare it the constitution, it would undoubtedly be the duty of the courts declare its work a nullity. This
would be revolution, and this the courts of the existing government must resist until they are overturned by
power, and a new government established. The convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a constitution has been made and promulgated
according to the forms of law. It is a matter of current history that both the executive and legislative branches
of the government have recognized its validity as a constitution, and are now daily doing so. Is the
question, therefore, one of a judicial character? It is our undoubted duty, if a statute be unconstitutional to
so declare it; also, if a provision of the state constitution be in conflict with the federal constitution, to hold
the former invalid. But this is a very different case. It may be said, however, that, for every violation of or
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 the other departments of the government is not an absolute
one, but merely to determine whether they have kept within constitutional limits, it is a duty rather than a
power, The judiciary cannot compel a 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
223
VOL. 50, MARCH 31, 1973 223

of great popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep
the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous
results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty
required, the overthrow of the work of the convention.
“After the American Revolution the state of Rhode Island retained its colonial character as its
constitution, and no law existed providing for the making of a new one. In 1841 public meetings were held,
resulting in the election of a convention to form a new one, — to be submitted to a popular vote. The
convention framed one, submitted it to a vote, and declared it adopted. Elections were held for state officers,
who proceeded to organize a new government. The charter government did not acquiesce in these
proceedings, and finally declared the state under martial law. It called another convention, which in 1843
formed a new constitution. Whether the charter government, or the one established by the voluntary
convention, was the legitimate one, was uniformly held by the courts of the state not to be a judicial, but a
political question; and the political department having recognized the one, it was held to be the duty of the
judiciary to follow its decision. The supreme court of the United States, in Luther v. Borden, 7 How. 1, while
not expressly deciding the principle, as it held the federal court, yet in the argument approves it, and in
substance says that where the political department has decided such a matter the judiciary should abide by
it.
“Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the
convention, when it reassembled, had no power to make any material amendment, and that such as were
made are void by reason of the people having theretofore approved the instrument. Then, next, this court
must determine what amendments were material; and we find the court, in effect, making a constitution.
This would be arrogating sovereignty to itself. Perhaps the members of the court might differ as to what
amendments are material, and the result would be confusion and anarchy. One judge might say that all the
amendments, material and immaterial, were void; another, that the convention had then the implied power
to correct palpable errors, and then the court might differ as to what amendments are material. If the
instrument as ratified by the people could not be corrected or altered at all, or if the court must determine
what changes were material, then the instrument, as passed upon by the people or as fixed by the court
would be lacking a promulgation by the
224

convention; and, if this be essential, then the question would arise, what constitution are we now living
under, and what is the organic law of the state? A suggestion of these matters shows what endless confusion
and harm to the state might and likely would arise. If, through error of opinion, the convention exceeded its
power, and the people are dissatisfied, they have ample remedy, without the judiciary being asked to overstep
the proper limits of its power. The instrument provides for amendment and change. If a wrong has been done,
it can, in the proper way in which it should be remedied, is by the people acting as a body politic. It is not a
question of whether merely an amendment to a constitution, made without calling a convention, has been
adopted, as required by that constitution. If it provides how it is to be done, then, unless the manner be
followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v.
Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But
it is a case where a new constitution has been formed and promulgated according to the forms of law. Great
interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the
highest crime known to the law, according to its provisions; the political power of the government has in
many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid
constitution, and now the organic law of our commonwealth.
“We need not consider the validity of the amendments made after the convention reassembled. If the
making of them was in excess of its powers, yet, as the entire instrument has been recognized as valid in the
manner suggested, it would be equally an abuse of power by the judiciary and violative of the rights of the
people, — who can and properly should remedy the matter, if not to their liking, — if it were to declare the
instrument of a portion invalid, and bring confusion and anarchy upon the state. (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
225
VOL. 50, MARCH 31, 1973 225

method of giving assent to the new Charter. In this respect, WE cannot presume to know better
than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8,
1973, We affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-
elected by the vote of over 5 million electors in 1969 for another term of four years until noon of
December 30, 1973 under the 1935 Constitution. This Court, not having a similar mandate by
direct fiat from the sovereign people, to execute the law and administer the affairs of government,
must restrain its enthusiasm to sally forth into the domain of political action expressly and
exclusively reserved by the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic law. That would be incompatible with their
sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the
1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the
procedure for ratification which they themselves define in their Constitution, cannot apply to a
unitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a
Federal State like the United States, in order to secure and preserve the existence of the Federal
Republic of the United States against any radical innovation initiated by the citizens of the fifty
(50) different states of the American Union, which states may be jealous of the powers of the
Federal government presently granted by the American Constitution. This dangerous possibility
does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
“Constitutional Limitations.”*
_______________
* 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.
226

(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 officials in the lower levels of
the Executive branch, there is no over-riding reason to deny the same to the Chief of State as
head of the Executive Branch. WE cannot reverse the rule on presumptions, without being
presumptuous, in the face of the certifications by the Office the Secretary of the Department of
Local Government and Community Development. (Annexes 1 to 1-E, Annexes 2 to 2-O to the
compliance with manifestation filed by the Solicitor General on behalf of the respondents public
officers dated March 7, 1973). There is nothing in the records that contradicts, much less
overthrow the results of the referendum as certified. Much less are We justified in reversing the
burden of proof — by shifting it from the petitioners to the respondents. Under the rules on
pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their
claim that the people did not ratify through the Citizens’ Assemblies nor adopt by acquiescence
the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the
basis of reports relayed to him from private sources which could be biased and hearsay, aside
from the fact that such reports are not contained in the record. Proclamation No. 1102 is not just
an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which announces the
highest act of the sovereign people — their imprimatur to the basic Charter that shall govern
their lives hereafter — may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and
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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 decision and whom petitioners would deny their sovereign right to pass
upon the basic Charter that shall govern their lives and the lives of their progenies, are entitled
as much as the educated, the law abiding, and those who are 21 years of age or above to express
their conformity or non conformity to the proposed Constitution, because their stake under the
new Charter is not any less than the stake of the more fortunate among us. As a matter of fact,
these citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or
ignorance deserve more solicitude from the State than the rest of the citizenry. In the ultimate
analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and the
ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to
the express affirmation in Section 1 of Article II of the Declaration of Principles that “sovereignty
resides in the people and all government authority emanates from them.”
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are
banned from voting. Only those who had been sentenced to at least one year imprisonment are
disenfranchised but they recover their right of suffrage upon expiration of ten years after service
of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a
very negligible number in any locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim
the results of the plebiscite or the voting the Citizens’ Assemblies. Petitioners deny the accuracy
or correctness of Proclamation No. 1102 that the 1973
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Constitution was ratified by the overwhelming vote of close to 15 million citizens because there
was no official certification to the results of the same from the Department of Local Governments.
But there was such certification as per Annexes 1 to 1-A to the Notes submitted by the Solicitor
General counsel for respondents public officers. This should suffice to dispose of this point. Even
in the absence of such certification, in much the same way that in passing law, Congress or the
legislative body is presumed to be in possession of the facts upon which such laws are predicated
(Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 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 fact upon which Proclamation
No. 1102 was based. This presumption is further strengthened by the fact that the Department of
Local Governments, the Department National Defense and the Philippine Constabulary as well
the Bureau of Posts are all under the President, which offices as his alter ego, are presumptively
acting for and in behalf of the President and their acts are valid until disapproved or reprobated
by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). To
deny the truth or the proclamation of the President as to the overwhelming majority vote in the
Citizens’ Assemblies in favor of the new Constitution, is to charge the President with falsification,
which is a most grievous accusation. Under the, rules of pleadings and evidence, the petitioners
have the burden of proof by preponderance of evidence in civil cases and by proof beyond
reasonable doubt in criminal prosecutions, where the accused is always presumed to be innocent.
Must this constitutional right be reversed simply because the petitioner all assert the contrary?
Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law
and jurisprudence to acts of public officers whose category in the official hierarchy is very much
lower than that of the Chief of State. What reason is there to withhold such a presumption in
favor of the President? Does the fact that the President belong to the party in power and that four
(4) of the five (5) senators who are petitioners in
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L-36165 belong to the opposition party, justify a discrimination against the President in matters
of this nature? Unsupported as their word is by any credible and competent evidence under the
rules of evidence, must the word of the petitioners prevail over that of the Chief Executive,
because they happen to be former senators and delegates to the Constitutional Convention? More
than any of the petitioners herein in all these cases, the incumbent President realizes that he
risks the wrath of his people being visited upon him and the adverse or hostile verdict of history;
because of the restrictions on the civil liberties of his people, inevitable concomitants of martial
law, which necessarily entail some degree of sacrifice on the part of the citizenry. Until the
contrary is established or demonstrated, herein petitioners should grant that the Chief Executive
is motivated by what is good for the security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot stand on the proposition that the rights
under the 1935 Constitution are absolute and invulnerable to limitations that may be needed for
the purpose of bringing about the reforms for which the petitioners pretend to be clamoring for
and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven (7)
petitioners in L-36164 were all participants in the political drama of this country since 1946.
They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms,
especially for the benefit of the landless and the laboring class — how politics and political
bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners
in L-36164 and L-36165 may not have participated in the systematic blocking of the desired
reforms in Congress or outside of it; but the question may be asked as to what exactly they did to
support such reforms. For the last seven (7) decades since the turn of the century, for the last
thirty-five (35) years since the establishment of the Commonwealth government in 1935 and for
the last twenty- seven (27) years since the inauguration of the Republic on July 4, 1946, no
tangible substantial reform had been effected, funded and seriously implemented, despite the
violent uprisings in the thirties, and from 1946 to 1952, and the violent demonstrations of recent
memory. Congress and the oligarchs acted like ostriches, “burying their heads in timeless sand.
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“Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would seem
therefore to the duty of everyone including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided for in the new or 1973
Constitution and thru the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, “a court is never justified in placing by implication
a limitation upon the sovereign.”
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached
upon the province exclusively reserved to and by the sovereign people. This Court did not heed to
the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment of the people on the basic
instrument which affects their very lives. WE cannot determine what is good for the people or
ought to be their fundamental law. WE can only exercise the power delegated to Us by the
sovereign people, to apply and interpret the Constitution and the laws for the benefit of the
people, not against them nor to prejudice them. WE cannot perform an act inimical to the interest
of Our principal, who at any time may directly exercise their sovereign power ratifying a new
Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function under the 1935
Constitution without being a part of the government established pursuant thereto. Unlike in the
Borden case, supra, where there was at least another government claiming to be the legitimate
organ of the state of Rhode Island (although only on paper as it had no established organ except
Dorr who represented himself to be its head; in the cases at bar there is no other government
distinct from and maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not even a rebel
government duly organized as such even only for domestic purposes, let alone a rebel government
engaged in international
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negotiations. As heretofore stated, both the executive branch and the legislative branch
established under the 1935 Constitution had been supplanted by the government functioning
under the 1973 Constitution as of January 17, 1973. The vice president elected under the 1935
Constitution does not asset any claim to the leadership of the Republic of the Philippines. Can
this Supreme Court legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of
Chief Justice Roger Brooke Taney whom he calls the “hero of the American Bar,” because during
the American civil war he apparently had the courage to nullify the proclamation of President
Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal
Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial
Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly
recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed
aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents who
belonged to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later
appointed Attorney General of Maryland. He also was a member of the Maryland state
legislature for several terms. He was a leader of the Federalist Party, which disintegrated after
the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave
owner and landed aristocrat, who later appointed him first as Attorney General of the United
States, then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme
Court to succeed Chief Justice John Marshall, in which position he continued for 28 years until
he died on October 21, 1864. His death “went largely unnoticed and unregretted.” Because he
himself was a slave owner and a landed aristocrat, Chief Justice Taney sympathized with the
Southern States and, even while Chief Justice, hoped that the Southern States would be allowed
to secede peacefully from the Union. That he had no sympathy for the Negroes was revealed by
his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that the
American Negro is not entitled to the rights of an American citizen and that his status as a slave
is determined by his returning to a slave state. One can
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therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman,
which animosity to say the least does no befit a judicial mind. Such a man could hardly be spoken
of as a hero of the American Bar, least of all of the American nation. The choice of heroes should
not be expressed indiscriminately just to embellish one’s rhetoric.
Distinguished counsel in 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 “Savior of Verdun”;
because he held Verdun against the 1916 offensive of the German army at the cost of 350,000 of
his French soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving
members of the family of Marshal Petain would not relish the error. And neither would the
members of the clan of Marshal Foch acknowledge the undeserved accolade, although Marshal
Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the
interest of true scholarship and historical accuracy, so that the historians, researchers and
students may not be led astray or be confused by esteemed counsel’s eloquence and mastery of
the spoken and written word as well as by his eminence as law professor, author of law books,
political leader, and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address
likewise his challenge to the five (5) senators who are petitioners in L-36165 to also act as “heroes
and idealists,” to defy the President by holding sessions by themselves alone in a hotel or in their
houses if they can muster a quorum or by causing the arrest of other senators to secure a quorum
and thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al., 83 Phil. 17
[1949]), if they believe most vehemently in the justice and correctness of their position that the
1973 Constitution has not been validly ratified, adopted or acquiesced in by the people since
January 18, 1973 until the present. The proclaimed conviction of petitioners in L-36165 on this
issue would have a ring of
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credibility, if they proceeded first to hold a rump session outside the legislative building; because
it is not unreasonable to demand or to exact that he who exhorts others to be brave must first
demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in
L-36165 already made them “heroes and idealists.” The challenge likewise seems to insinuate
that the members of this Court who disagree with petitioners’ views are materialistic cowards or
mercenary fence-sitters. The Court need not be reminded of its solemn duty and how to perform
it. WE refuse to believe that petitioners and their learned as well as illustrious counsels, scholars
and liberal thinkers that they are, do not recognize the sincerity of those who entertain opinions
that clash with their own. Such an attitude does not sit well with the dictum that “We can differ
without being difficult; we can disagree without being disagreeable,” which distinguished counsel
in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by
petitioners, which We do not find now necessary to deal with in view of Our opinion on the main
issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD
BE DISMISSED.

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 affirm the proposition that the
question as to whether a constitutional amendment or the revised or new Constitution
234

has been validly submitted to the people for ratification in accordance with the procedure
prescribed by the existing Constitution, is a justiciable question, accord all presumption of
validity to the constitutional amendment or the revised or new Constitution after the government
officials or the people have adopted or ratified or acquiesced in the new Constitution or
amendment, although there was an illegal or irregular or no submission at all to the people.
(Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs. Clark, 71 SE 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 our judgment its nullity is manifest beyond reasonable doubt” (1971 case of Moore vs.
Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthrow such
presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF
CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the
three grand departments of the Government, namely, the legislative, the executive and the
judicial. As a fourth separate and distinct branch, to emphasize its independence, the Convention
cannot be dictated to by either of the other three departments as to the content as well as the
form of the Charter that it proposes. It enjoys the same immunity from interference or
supervision by any of the
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aforesaid branches of the Government in its proceedings, including the printing of its own
journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8-9; Malcolm
and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence,
for the purpose of maintaining the same unimpaired and in order that its work will not be
frustrated, the Convention has the power to fix the date for the plebiscite and to provide funds
therefor. To deny the Convention such prerogative, would leave it at the tender mercy of both
legislative and executive branches of the Government. An unsympathetic Congress would not be
disposed to submit the proposed Constitution drafted by the Constitutional Convention to the
people for ratification, much less appropriate the necessary funds therefor. That could have been
the fate of the 1973 Constitution, because the same abolished the Senate by creating a
unicameral National Assembly to be presided by a Prime Minister who wields both legislative
and executive powers and is the actual Chief Executive, for the President contemplated in the
new Constitution exercises primarily ceremonial prerogatives. The new Constitution likewise
shortened abruptly the terms of the members of the present Congress (whose terms end on
December 31, 1973, 1975 and 1977) which provides that the new Constitution shall take effect
immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section
2 of the same Article XVIII secures to the members of Congress membership in the interim
National Assembly as long as they opt to serve therein within thirty (30) days after the
ratification of the proposed Constitution, affords them little comfort; because the convening of the
interim National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII,
1973 Constitution). Under the foregoing circumstances, the members of Congress, who were
elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate
funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which
means their elimination from the political scene. They will not provide the means for their own
liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its
independence and effectiveness, possesses the power to call a plebiscite and to
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appropriate funds for the purpose, it inescapably must have the power to delegate the same to the
President, who, in estimation of the Convention can better determine appropriate time for such a
referendum as well as the amount necessary to effect the same; for which reason the Convention
thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution No. 5843
adopted on November 16, 1972, proposed to the President “that a decree be issued calling a
plebiscite for the ratification of the proposed new Constitution such appropriate date as he shall
determine and providing for the necessary funds therefor, xx,” after stating in “whereas” clauses
that the 1971 Constitutional Convention expected to complete its work by the end of November,
1972 that the urgency of instituting reforms rendered imperative the early approval of the new
Constitution, and that the national and local leaders desire that there be continuity in the
immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to
promulgate subordinate rules and regulations to implement the law, this authority to delegate
implementing rules should not be denied to the Constitutional Convention, a 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 xx xx.” (Emphasis supplied). Hence, as consultative bodies
representing the localities including the barrios, their creation by the President thru Presidential
Decree No. 86 of December 31, 1972, cannot be successfully challenged.
The employment by the President of these Citizens’
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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 x x x.” The use of the term “decree” is significant for the
basic orders regulating the conduct of all inhabitants are
238

issued in that form and nomenclature by the President as the Commander in Chief and enforcer
of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on
December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor
pursuant to said Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making power to the Chief
Executive or to any of his subalterns, does not need sufficient standards to circumscribe the
exercise of the power delegated, and is beyond the competence of this Court to nullify. But even if
adequate criteria should be required, the same are contained in the “Whereas” clauses of the
Constitutional Convention Resolution No. 29, thus:
“WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a proposed
new Constitution for the Republic by the end of November, 1972;
“WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution has
become imperative;
“WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate
political transition from the old to the New Constitution”; (Annex “1” of Answer, Res. No. 29, Constitutional
Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer
concurred in the Plebiscite Cases, stated:
“x x x Once this work of drafting has been completed, it could itself direct the submission to the people for
ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress not being
in session, could the President, by the decree under question, call for such a plebiscite? Under such
circumstances, a negative answer certainly could result in the work of the Convention being rendered
nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid
such undesirable consequence the task of submission becomes ministerial, with the political branches devoid
of any discretion as to
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the holding of an election for that purpose. Nor is the appropriation by him of the amount necessary to be
considered as offensive to the Constitution. If it were done by him in his capacity as President, such an
objection would indeed have been formidable, not to say insurmountable. If the appropriation were made in
his capacity as agent of the Convention to assure that there be submission to the people, then such an
argument loses force. The Convention itself could have done so. It is understandable why it should be thus. If
it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make
use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially
distraught. The President then, if performing his role as its agent, could be held as not devoid of such
competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925, etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments
during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of
questionable or ambiguous provisions does not affect the validity of the ratification or adoption of
the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 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
240

ground that it contains provisions which are ultra vires or beyond the power of the Constitutional
Convention to propose.
This objection relates to the wisdom of changing the form of government from Presidential to
Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV
and Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV —
“Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, after examination under oath or affirmation of
the complainant and the witnesses may produce, and particularly describing the place to be searched, and
the persons or things to be seized.”
Article XIV —
“Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter into international treaties or agreements as the national
welfare and interest may require.” (Without the consent of the National Assembly.)
Article XVII —
“Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and effective
even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified or repealed by the regular National Assembly.
xx xx xx xx xx
“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
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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:
“x x x Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally deemed fit to propose — save
perhaps what is or may be insistent with what is now known, particularly in international law,
as Jus Cogens — not only because the Convention exercised sovereign powers delegated thereto by the
people — although insofar only as the determination of the proposals to be made and formulated by
said body is concerned — but also, because said proposals cannot be valid as part of our Fundamental
Law unless and until ‘approved by the majority of the votes cast at an election which’ said proposals
‘are submitted to the people for their ratification,’ as provided in Section 1 of Article XV of the 1935
Constitution.” (pp. 17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA
367) that the Constitutional Convention has the authority to “entirely overhaul the present
Constitution and propose an entirely new Constitution based on an ideology foreign to the
democratic system x x x; because the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about the validity of the new
Constitution.”
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing
pronouncement in the Del Rosario case, supra, and added: “xx xx it seems to me a sufficient
answer that once convened, the area open for deliberation to a constitutional convention xx xx, is
practically limitless” (citing
242

Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632
[1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77
Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179
NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs.
Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262
Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view
“that when the people elected the delegates to the Convention and when the delegates themselves
were campaigning, such limitation of the scope of their function and objective was not in their
minds.”
V
1973 CONSTITUTION DULY ADOPTED AND PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30,
1972 without officially promulgating the said Constitution in Filipino as required by Sections 3(1)
of Article XV on General Provisions of the 1973 Constitution. This claim is without merit because
their Annex “M” is the Filipino version of the 1973 Constitution, like the English version,
contains the certification by President Diosdado Macapagal of the Constitutional Convention,
duly attested by its Secretary, that the proposed Constitution, approved on second reading on the
27th day of November, 1972 and on third reading in the Convention’s 291st plenary session on
November 29, 1972 and accordingly signed on November 1972 by the delegates whose signatures
are thereunder affixed. It should be recalled that Constitutional Convention President Diosdado
Macapagal was, as President of the Republic 1962 to 1965, then the titular head of the Liberal
Party to which four (4) of the petitioners in L-36165 including their counsel, former Senator
Jovito Salonga, belong. Are they repudiating and disowning their former party leader and
benefactor?
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VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE FOR
RATIFICATION OF 1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that “such amendments shall be valid
as part of this Constitution when approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for ratification.”
But petitioners construe the aforesaid provision to read: “Such amendments shall be valid as
part of this Constitution when approved by a majority of the votes cast at an election called by
Congress at which the amendments are submitted for ratification by the qualified electors defined
in Article V hereof, supervised by the Commission on Elections in accordance with the existing
election law and after such amendments shall have been published in all the newspapers of
general circulation for at least four months prior to such election.”
This position certainly imposes limitation on the sovereign people, who have the sole power of
ratification, which imposition by the Court is never justified (Wheeler vs. Board of
Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction
Article XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do
not possess — through some kind of escamotage. This Court should not commit such a grave
error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of
substantial compliance with the procedure prescribed by the Constitution and/or the law,
nullifies the proposed amendment or the new Constitution, the procedure prescribed by the state
Constitution is so detailed that it specifies that the submission should be at a general or special
election, or at the election for members of the State
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legislature only or of all state officials only or of local officials only, or of both state and local
officials; fixes the date of the election or plebiscite limits the submission to only electors or
qualified electors; prescribes the publication of the proposed amendment or a new Constitution
for a specific period prior to the election or plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of the ballot which should so
state the substance of the proposed amendments to enable the voter to vote on each amendment
separately or authorizes expressly the Constitutional Convention or the legislature to determine
the procedure or certain details thereof. See the State Constitutions of Alabama [1901]; Arizona
[1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia [1945];
Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890];
and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
“Article XVIII. Mode of Amending the Constitution
“Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature in
the manner following: The proposed amendments shall be read in the house in which they originate on three
several days, and, if upon the third reading, three-fifths of all the members elected to that house shall vote
in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be
read on three several days, and if upon the third reading, three-fifths of all the members elected that house
shall vote in favor of the proposed amendments, the legislature shall order an election by the qualified
electors of the state upon such proposed amendments, to be held either at the general election next succeeding
the session of the legislature at which the amendments are proposed or upon another day appointed by the
legislature, not less than three months after the final adjournment of the session of the legislature at which
the amendments were proposed. Notice of such election, together with the proposed amendments, shall be
given by proclamation of the governor, which shall be published in every county in such manner as the
legislature shall direct, for at least eight successive weeks next preceding the day appointed for such election.
On the day so
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appointed an election shall be held for the vote of the qualified electors of the state upon the proposed
amendments. If such election be held on the day of the general election, the officers of such general election
shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day
other than that of a general election, officers for such election shall be appointed; and the election shall be
held in all things in accordance with the law governing general elections. In all elections upon such proposed
amendments, the votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the
secretary of state, and counted, in the same manner as in elections for representatives to the legislature; and
if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the
proposed amendments voted in favor of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such election shall be made known by proclamation of
the governor. Representation in the legislature shall be based upon population, and such basis of
representation shall not be changed by constitutional amendments.
“Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section 284
of this Constitution, the substance or subject matter of each proposed amendment shall be so printed that
the nature thereof shall be clearly indicated. Following each proposed amendment on the ballot shall be
printed the word “Yes” and immediately under that shall be printed the word “No.” The choice of the elector
shall be indicated by a cross mark made by him or under his direction, opposite the word expressing his
desire, and no amendment shall be adopted unless it receives the affirmative vote of a majority of all the
qualified electors who vote at such election.”
Constitution of Arkansas (1874):

“Article XIX. Miscellaneous Provisions.
“Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session thereof
may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the
members, elected to each house, such proposed amendments shall be entered on the journal with the yeas
and nays, and published in at least one newspaper in each county, where a newspaper is published, for six
months immediately preceding the next general election for Senators and Representatives, at which time the
same shall be submitted to the electors of the State for
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approval or rejection, and if a majority of the electors voting at such election adopt such amendments, the
same shall become a part of this Constitution; but no more than three amendments shall be proposed or
submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment
separately.
Constitution of Kansas (1861):
“Article XIV. Amendments.

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

“Article XIV. Amendments to the Constitution.
“Sec. 1. Proposal in general assembly; publication; submission to voters; governor’s proclamation. The
General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be
embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and
passed by three fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered
on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall
be published by order of the Governor, in at least two newspapers, in each County, where so many may be
published, and where not more than one may be published, then in the newspaper, and in three newspapers
published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing
general
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election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by
the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for and
against said proposed amendment or amendments, severally, shall be returned to the Governor, in the
manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at
said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall,
by his proclamation, declare the said amendment or amendments having received said majority of votes, to
have been adopted by the people of Maryland as part of the Constitution thereof, and henceforth said
amendment or amendments shall be part of the said Constitution. When two or more amendments shall be
submitted in the manner aforesaid, to the voters of this State at the same election, they shall be so
submitted as that each amendment shall be voted on separately.
Constitution of Missouri (1945):

“Article XII. Amending the Constitution.
“Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All amendments
proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or
rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at
the next general election, or at a special election called by the governor prior thereto, at which he may
submit any of the amendments. No such proposed amendment shall contain more than one amended and
revised article of this constitution, or one new article which shall not contain more than one subject and
matters properly connected therewith. If possible, each proposed amendment shall be published once a week
for two consecutive weeks in two newspapers of different political faith in each county, the last publication
to be not more than thirty nor less than fifteen days next preceding the election. If there be but one
newspaper in any county, publication of four consecutive weeks shall be made. If a majority of the votes cast
thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election.
More than one amendment at the same election shall be so submitted as to enable the electors to vote on
each amendment separately.”
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not
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specify what kind of election at which the new Constitution shall be submitted; nor does it
designate the Commission on Elections to supervise the plebiscite. Neither does it limit the
ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much less
does it require the publication of the proposed Constitution for any specific period before the
plebiscite nor does it even insinuate that the plebiscite should be supervised in accordance with
the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935 Constitution as ratified on
May 14, 1935 by the people did not contain Article X on the Commission on Elections, which
article was included therein pursuant to an amendment by that National Assembly proposed only
about five (5) years later — on April 11, 1940, ratified by the people on June 18, 1940 as approved
by the President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil.
703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original
framers of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the
Commission on Elections should be the one to supervise the plebiscite, because the Commission
on Elections was not in existence then as was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21,
1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 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 Election was not yet in existence, the former
Department of Interior (now Department of Local Governments and Community Development)
supervised the plebiscites on the 1937 amendment on woman’s suffrage, the 1939 amendment to
the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S.
Congress) and the three
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1940 amendments on the establishment of a bicameral Congress, the re-election of the President
and the Vice-President, and the creation of the Commission on Elections (ratified on June 18,
1940). The supervision of said plebiscites by the then Department of Interior was not automatic,
but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should also
supervise the plebiscite for ratification of constitutional amendments or revision, it should have
likewise proposed the corresponding amendment to Article XV by providing therein that the
plebiscite on amendments shall be supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14,
1935 wanted that only the qualified voters under Article V of the 1935 Constitution should
participate in the referendum on any amendment or revision thereof, they could have provided
the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by changing
the last phrase to “submitted for ratification to the qualified electors as defined in Article V
hereof,” or some such similar phrases.
Then again, the term “people” in Article XV cannot be understood to exclusively refer to the
qualified electors under Article V of the 1935 Constitution because the said term “people” as used
in several provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term “Filipino people” refer, to all Filipino citizens of all ages of both sexes. In
Section 1 of Article II on the Declaration of Principles, the term “people” in whom sovereignty
resides and from whom all government authority emanates, can only refer also to Filipino
citizens of all ages and of both sexes. But in Section 5 of the same Article II on social justice, the
term “people” comprehends not only Filipino citizens but also all aliens residing in the country of
all ages and of both sexes. Likewise, that is the same connotation of the term “people” employed
in Section 1(3) of Article III on the Bill of Rights concerning searches and seizures.
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When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it
does so expressly as the case of the election of senators and congressmen. Section 2 Article VI
expressly provides that the senators “shall be chosen at large by the qualified electors of the
Philippines as may provided by law.” Section 5 of the same Article VI specifically provides that
congressmen shall “be elected by the qualified electors.” The only provision that seems to sustain
the theory of petitioners that the term “people” in Article XV should refer to the qualified electors
as defined in Article V of the 1935 Constitution is the provision that the President and Vice-
President shall be elected “by direct vote of the people.” (Sec. 2 of Art. VII of the 1935
Constitution). But this alone cannot be conclusive as to such construction, because of explicit
provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the senators and
congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically
delineate in detail procedure of ratification of amendments to or revision of said Constitutions
and expressly require ratification by qualified electors, not by the generic term “people.”
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35
Constitutional Convention satisfied that the amendment shall be submitted to qualified election
for ratification. This proposal was not accepted indicating that the 1934-35 Constitutional
Convention did intend to limit the term “people” in Article XV of the 1935 Constitution to qualified
electors only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the
term “qualified electors” to elections of public officials. It did not want to tie the hands of
succeeding future constitutional conventions as to who should ratify the proposed amendment or
revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional
amendment contemplates the automatic applicability of election laws to plebiscites on proposed
constitutional amendments or revision.
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The very phraseology of the specific laws enacted by the National Assembly and later by
Congress, indicates that there is need of a statute expressly authorizing the application of the
election laws to plebiscites of this nature. Thus, Com. Act No. 34 on the woman’s suffrage
amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing that
“there shall be held a plebiscite on Friday, April 30, 1937, on the question of woman’s suffrage xx
and that said amendment shall be published in the Official Gazette in English and Spanish for
three consecutive issues at least fifteen (15) days prior to said election, xx and shall be posted in a
conspicuous place in its municipal and provincial office building and in its polling place not later
than April 22, 1937” (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law
regarding, the holding of a special election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34); and, that the votes cast according to
the returns of the board of inspectors shall be counted by the National Assembly (Sec. 10, Com.
Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of the Revised
Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it
expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517
and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and
1946, including the amendment creating the Commission on Elections, specifically provided that
the provisions of the existing election law shall apply to such plebiscites insofar as they are not
inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the
proposed amendments to the Constitution adopted by the National Assembly on September 15,
1939, consists of 8 sections and provides that the proposed amendments to the Constitution
adopted in Resolution No. 39 on September 15, 1939 “shall be submitted to the Filipino people for
approval or disapproval at a general election to be
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held throughout the Philippines on Tuesday, October 24, 1939”; that the amendments to said
Constitution proposed in “Res. No. 38, adopted on the same date, shall be submitted at following
election of local officials,” (Sec. 1, Com. Act No. 492) that the said amendments shall be published
in English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days
prior to the elections; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2,
Com. Act 492); that the election shall be conducted according to provisions of the Election Code
insofar as the same may be applicable; that within thirty (30) days after the election, Speaker of
the National Assembly shall request the President to call a special session of the Assembly for the
purpose of canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and
provided, among others: that the plebiscite on the constitutional amendments providing
bicameral Congress, re-election of the President and Vice-President, and the creation of a
Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said
amendments shall be published in three consecutive issues of the Official Gazette in English and
Spanish at least 20 days prior to the election and posted in every local government office building
and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in
conformity with the Election Code insofar as the same may be applicable (Sec. 3) that copies of
the returns shall be forwarded to the Secretary of National Assembly and the Secretary of
Interior (Sec. 7); that the National Assembly shall canvass the returns to certify the results at a
special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity
amendment consists of 8 sections provides that the Amendment “shall be submitted to the people,
for approval or disapproval, at a general election which shall be held on March 11, 1947, in
accordance with the provisions of this Act” (Sec. 1, R.A. No. 73); that the said amendment shall
be published in English and Spanish in three
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consecutive issues of the Official Gazette at least 20 days prior to the election; that copies of the
same shall be posted in a conspicuous place and in every polling place not later than February 11,
1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com.
Act No. 657 creating the Commission on Elections, shall apply to the election insofar as they are
not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the
Senate and House of Representatives shall hold a joint session to canvass the returns and certify
the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not
contemplate nor envision the automatic application of the election law; and even at that, not all
the provisions of the election law were made applicable because the various laws aforecited
contain several provisions which are inconsistent with the provisions of the Revised Election
Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the
copies of the proposed amendments was about 10 days, 15 days or 20 days, and for posting at
least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply
to plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution,
there would be no need for Congress to expressly provide therefor in the election laws enacted
after the inauguration of the Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote.
Unlike the various State Constitutions of the American Union (with few exceptions), Article XV
does not state that only qualified electors can vote in the plebiscite. As above-intimated, most of
the Constitutions of the various states of the United States provide for very detailed amending
process and specify that only qualified electors can vote at such plebiscite or election.
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Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter,
which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the
membership of the barrio assembly to include citizens who are at least 18 years of age, whether
literate or not, provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A.
No. 3590).
“Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are residents of the
barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Philippines and
who are duly registered in the list of barrio assembly members kept by the Barrio Secretary.
“The barrio assembly shall meet at least once a year to hear the annual report of the barrio council
concerning the activities and finances of the barrio.
“It shall meet also at the case of the barrio council or upon written petition of at least One-Tenth of the
members of the barrio assembly.
“No meeting of the barrio assembly shall take place unless notice is given one week prior to the meeting
except in matters involving public safety or security in which case notice within a reasonable time shall be
sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or any assembly
member selected during the meeting, shall act as presiding officer at all meetings of the barrio assembly. The
barrio secretary or in his absence, any member designated by the presiding officer to act as secretary shall
discharge the duties of secretary of the barrio assembly.
“For the purpose of conducting business and taking any official action in the barrio assembly, it is
necessary that at least one-fifth of the members of the barrio assembly be present to constitute a quorum. All
actions shall require a majority vote of these present at the meeting there being a quorum.
“Sec. 5. Powers of the barrio assembly. — The powers of the barrio assembly shall be as follows:
“a. To recommend to the barrio council the adoption of measures for the welfare of the barrio;
“b. To decide on the holding of a plebiscite as provided for
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in Section 6 of this Act;

“c. To act on budgetary and supplemental appropriations and special tax ordinances submitted for
its approval by the barrio council; and
“d. To hear the annual report council concerning the activities and finances of the assembly.
“Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when called by at least four members of
the barrio council; Provided, however, That no plebiscite shall be held until after thirty days from its
approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the
date, time, and place thereof, the questions or issues to be decided, action to be taken by the voters, and such
other information relevant to the holding of the plebiscite.
“All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in regular election, and/or declaration by the voters to the board
of election tellers. The board of election tellers shall be the same board envisioned by section 8, paragraph 2
of this Act, in case of vacancies in this body, the barrio council may fill the same.
“A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite shall be
called to approve any budgetary, supplemental appropriations or special tax ordinances.
“For taking action on any of the above enumerated measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary is necessary.
xx xx xx xx xx
“Sec. 10. Qualifications of voters and candidates. — Every citizen of the Philippines, twenty-one years of
age or over, able to read and write, who has been a resident of the barrio during the six months immediately
preceding the election, duly registered in the list of voters kept by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections.
“The following persons shall not be qualified to vote:
“a. Any person who has been sentenced by final judgment to suffer one year or more of
imprisonment, within two years
256

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 a budgetary,
supplemental appropriation, or special ordinances, a valid action on which requires “a majority
vote of all of the barrio assembly members registered in the list of the barrio secretary” (par. 5,
Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a majority vote of the members
present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21
years of age, able to read and write, residents of the barrio during the 6 months immediately
preceding the election and duly registered in the list of voters kept by the barrio secretary, not
otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that “voting procedures
may be made x x x either in writing as in regular elections, and/or declaration by the voters to the
board of election tellers.”
That said paragraph 2 of Section 6 provides that “all duly registered barrio assembly members
qualified to vote may vote in the plebiscite,” cannot sustain the position of petitioners in G.R. No.
L-36165 that only those who are 21 years of age and above and who possess all other
qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to
in Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with
the qualifications under Section 10 as said Section 6 does not distinguish between those who are
21 or above on the one hand and those 18 or above but below 21 on the other, and whether
literate or not, to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as
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they are 18 years of age or above; and that only those who are 21 years of age or over and can
read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who
are at least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have
restated Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only
those who are 21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165 and two of the
petitioners in L-36164 participated in the enactment of Republic Act No. 3590 and should have
known the intendment of Congress in expanding the membership of the barrio assembly to
include all those 18 years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can
include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be
exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102
that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens’
Assemblies in a referendum conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the certification by the Secretary of
the Department of Local Government and Community Development who tabulated the results of
the referendum all over the country. The accuracy of such tabulation and certification by the said
Department Secretary should likewise be presumed; because it was done in the regular
performance of his official functions aside from the fact that the act of the Department Secretary,
as an alter ego of the President, is presumptively the act of the President himself unless the
latter disapproves or reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451). The
truth of the certification by the Department Secretary and the Chief
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Executive on the results of the referendum, is further strengthened by the affidavits and
certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City
and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939
amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments
establishing the bicameral Congress, creating the Commission on Elections and providing for two
consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because
those amendments were proposed by the National Assembly as expressly authorized by Article V
of the 1935 Constitution respecting woman suffrage and as a constituent assembly in all the
other amendments aforementioned and therefore as such, Congress had also the authority to
prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional
Convention, which as heretofore discussed, has the equal power to prescribe the modality for the
submission of the 1973 Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be
utilized as the basis for the extrapolation of the Citizens’ Assemblies in all the other provinces,
cities and municipalities in all the other provinces, cities and municipalities, and the affirmative
votes in the Citizens’ Assemblies resulting from such extrapolation would still constitute a
majority of the total votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the Department of Local
Government and Community Development that in Rizal there were 1,126,000 Yes votes and
100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were
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249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents’ Compliance
(the certification by the Department of Local Government and Community Development), while
the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and
5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities
and towns of the country, the result would still be an overwhelming vote in favor of the 1973
Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certification dated March 16, 1973, he states that since the declaration of martial
law and up to the present time, he has been under house arrest in his residence in Urdaneta
Village, Makati, Rizal; that he never participated in the conduct of the Citizens’ Assemblies on
January 10 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the
Citizens’ Assemblies at that time was Vice-Governor Dominador Camerino; and that he was
shown a letter for his signature during the conduct of the Citizens’ Assemblies, which he did not
sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated
March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on
January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose Roño of the
Department of Local Government and Community Development showing the results of the
referendum in Pasay City; that on the same day, there were still in any Citizens’ Assemblies
holding referendum in Pasay City, for which reason he did not send the aforesaid letter pending
submittal of the other results from the said Citizens’ Assemblies; and that in the afternoon of
January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City
to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an
affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office
asked him for the results of the referendum; that he
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informed her that he had in his possession unsigned copies of such results which may not be
considered official as they had then no knowledge whether the original thereof had been signed
by the mayor; and that in spite of his advice that said unsigned copies were not official, she
requested him if she could give her the unofficial copies thereof, which he gave in good faith
(Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens’ Assemblies of Quezon
city (Annex V to Petitioners’ Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez,
wife of alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states
that “as far as we know, there has been no Citizens’ Assembly meeting in our Area, particularly
in January of this year,” does not necessarily mean that there was no such meeting in said barrio;
for she may not have been notified thereof and as a result she was not able to attend said
meeting. Much less can it be a basis for the claim that there was no meeting at all in the other
barrios of Quezon City. The barrio captain or the secretary of the barrio assembly could have
been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and
Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the
compilation and tabulation of the results of the referendum among the Citizens’ Assemblies in
Quezon City based on the results submitted to the Secretariat by the different Citizens’
Assemblies; but many results of the referendum were submitted direct to the national agencies
having to do with such activity and all of which he has no knowledge, participation and control
(Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he
prepared a letter to the President dated January 15, 1973 informing him of the results of the
referendum in Rizal, in compliance with the instruction of the National Secretariat to submit
such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens’ Assemblies;
that the figures 614,157 and 292,530 mentioned in said letter were based on the certificates of
results in his possession as of January 14, 1973, which results were made the
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basis of the computation of the percentage of voting trend in the province; that his letter was never
intended to show the final or complete result in the referendum in the province as said referendum
was then still going on from January 14-17, 1973, for which reason the said letter merely stated
that it was only a “summary result”; and that after January 15, 1973, he sent to the National
Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex
3-Rejoinder of the Sol. Gen.; italics supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government
and Community Development, issued a certificate dated March 16, 1973 that she was shown
xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15,
1973 and marked “Rejoinder Annex Cavite” addressed to the President of the Philippines through
the Secretary of the Department of Local Government and Community Development and another
unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked
“Rejoinder Annex Pasay City” addressed to the Secretary of the Department of Local Government
and Community Development; that both xerox copies of the unsigned letters contain figures
showing the results of the referendum of the Citizens’ Assemblies in those areas; and that the
said letters were not received by her office and that her records do not show any such documents
received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by
representing said unsigned letters and/or certificates as duly signed and/or containing the
complete returns of the voting in the Citizens’ Assemblies.
The observation We made with respect to the discrepancy between the number of Yes votes
and No votes contained in the summary report of Governor Rodriguez of Rizal as well as those
contained in the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as
not having been signed by him for he was then under house arrest, on the one hand, and the
number of votes certified by the Department of Local Government and Community Development,
on the other, to the effect that even assuming the correctness of the figures
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insisted on by counsel for petitioners in L-36165, if they were extrapolated and applied to the
other provinces and cities of the country, the Yes votes would still be overwhelmingly greater
than the No votes, applies equally to the alleged discrepancy between the figures contained in the
certification of the Secretary of the Department of Local Government and Community
Development and the figures furnished to counsel for petitioners in 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 the plebiscite to be held later than those against, only serve to
emphasize that there was freedom of voting among the members of the Citizens’ Assemblies all
over the country during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to
Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a
plebiscite would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the “strong
manifestation of approval of the new Constitution by almost 97% by the members of the Citizens’
Assemblies in Camarines Sur” (Annex-Camarines Sur to Rejoinder of Petitioners in 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 “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
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the new Constitution are registered in the book of voters; it is enough that they are electors
voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA
251). The fact that the number of actual voters in the referendum in certain localities may exceed
the number of voters actually registered for the 1971 elections, can only mean that the excess
represents the qualified voters who are not yet registered including those who are at least 15
years of age and the illiterates. Although ex-convicts may have voted also in the referendum,
some of them might have been granted absolute pardon or were sentenced to less than one year
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-
convicts constitute a negligible number, discounting which would not tilt the scale in favor of the
negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal
Party, stated in his letter dated March 13, 1973 that he does not “feel authorized by the proper
authorities to confirm or deny the data” concerning the number of participants, the Yes votes and
No votes in the referendum on the new Constitution among the members of the Citizens’
Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of
Caloocan City is being intimidated, having been recently released from detention; because in the
same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can
secure “the true and legitimate results of the referendum” from the Office of the President (Annex
Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel
heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation
of the estimated turnover in the Citizens’ Assemblies referendum on January 10 to 15, 1973 by a
certain Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close
relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex
M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments
and Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the
more impairs his
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credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated
March 16, 1973 address to the Secretary of the Department of Local Government and Community
Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
“1) I do not quite understand why (Problem 1) all qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage participation of
the ‘15-20 year old plus total number of qualified voters’ which does not deem to answer the problem. This
computation apparently fails to account for some 5.6 million persons ‘21 years old and over’ who were not
registered voters (COMELEC), but who might be qualified to participate at the Citizen’s Assembly.
“2) The official population projection of this office (medium assumption) for ‘15 year olds and over’ as of
January 1, 1973 is 22.506 million. If total number of participants at the Citizens’ Assembly Referendum
held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio of the latter
figure to the former which gives 74.2%.
“3) I cannot also understand c-2 ‘Solution to Problem 11.’ The ‘difference or implied number of 15-20 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 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 unqualified/disqualified to vote’ will be more than
10,548,197 and hence the ‘difference or implied number of registered voters that participated’ will be less
than 6,153,618.
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“I have reservations on whether an ‘appropriate number of qualified voters that supposedly voted’ could
be meaningfully estimated.
“5) The last remark will therefore make the ratio (a) [Solution to Problem] more than 1.71 and that for
(b), accordingly, will also be less than 36.8%.” (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973,
the official population projection for 15-year 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 qualified electors who were not registered before
the November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent
President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator
Sergio Osmeña, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs.
Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for
the incumbent President in 1969 did not vote in favor of the 1973 Constitution during the
referendum from January 10 to 15, 1973. It should also be stressed that many of the partisans of
the President in the 1969 Presidential elections, have several members in their families and
relatives who are qualified to participate in the referendum because they are 15 years or above
including illiterates, which fact should necessarily augment the number of votes who voted for
the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is
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necessarily inconsistent with freedom of choice, because the people fear to disagree with the
President and 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 ordinarily engenders fear in the individual which persuades
the individual to comply with or obey the law. But before martial law was proclaimed, many
individuals fear such sanctions of the law because of lack of effective equal enforcement or
implementation thereof — in brief, compartmentalized justice and extraneous pressures and
influences frustrated the firm and just enforcement of the laws. The fear that is generated by
martial law is merely the fear of immediate execution and swift enforcement of the law and
therefore immediate infliction of the punishment or sanction prescribed by the law whenever it is
transgressed during the period of martial law. This is not the fear that affects the voters’ freedom
of choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the
criminals or the law violators. Surely, petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the
secrecy of the ballot as by the election laws. But the 1935 Constitution does not require secret
voting. We search in vain for such guarantee or prescription in said organic law. The Commission
on Elections under the 1940 Amendment, embodied as Article X is merely mandated to insure
“free, orderly and honest election.” Congress, under its plenary law-making authority, could have
validly prescribed in the election law open voting in the election of public officers, without
trenching upon the Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife in
elections for elective officials. Partisanship based on party or personal loyalties
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does not generally obtain in a plebiscite on proposed constitutional amendments or on a new

Constitution. We have seen even before and during martial law that voting in meetings of
government agencies or private organizations is usually done openly. This is specially true in
sessions of Congress, provincial boards, city councils, municipal boards and barrio councils when
voting on national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens’ Assemblies. It might
have been true in certain areas, but that does not necessarily mean that it was done throughout
the country.
The recent example of an open voting is the last election on March 3, 1973 of the National
Press Club officers who were elected by acclamation presided over by its former president,
petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There
can be no more hardboiled group of persons than newspapermen, who cannot say that voting
among them by acclamation was characterized by fear among the members of the National Press
Club.
Moreover, petitioners would not be willing to affirm that all the members of the citizenry of
this country are against the new Constitution. They will not deny that there are those who favor
the same, even among the 400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer, laborer, fisherman, lowly
employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl — does not
want the new Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to the new
Constitution. This is quite inaccurate; because even before the election in November, 1970 of
delegates to the Constitutional Convention, the proposed reforms were already discussed in
various forums and through the press as well as other media of information. Then after the
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Constitutional Convention convened in June, 1971, specific reforms advanced by the delegates
were discussed both in committee hearings as well as in the tri-media — the press, radio and
television. Printed materials on the proposed reforms were circulated by their proponents. From
June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few
days after the proclamation of martial law on September 21, 1972. From the time the
Constitutional Convention reconvened in October, 1972 until January 7, 1973, the provisions of
the new Constitution were debated and discussed in forums sponsored by private organizations
universities and debated over the radio and on television. The Philippines is a literate country,
second only to Japan in the Far East, and more literate perhaps than many of mid-western and
southern states of the American Union and Spain. Many residents in about 1,500 towns and
33,000 barrios of the country have radios. Even the illiterates listened to radio broadcasts on and
discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in
Bulletin Today, March 4, 1973 issue, “Otto Lang, Hollywood producer director (Tora, Tora, Tora)
went around the country doing a 30-minute documentary on the Philippines for American
television stated that what impressed him most in his travel throughout the country was the
general acceptance of the New Society by the people which he saw in his 6-week travel from
Aparri to Jolo.”
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3,
and Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal
survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-
Philippine relations, states:
“Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. President
Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this
purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation’s
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difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly,
he knows the targets. What is not yet certain is how accurate have been his shots. Nevertheless, there is
marked public support for his leadership and tangible alternatives have not been forthcoming. That would
suggest that he may not be striking too far from the mark.
“The United States business community in Manila seems to have been re-assured by recent developments
xx. (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute
the majority of the population, do not like the reforms stipulated in the new Constitution, as well
as the decrees, orders and circulars issued to implement the same. It should be recalled, as
hereinbefore stated, that all these reforms were the subject of discussion both in the committee
hearings and on the floor of the Constitutional Convention, as well as in public forums sponsored
by concerned citizens or civic organizations at which Con-Con delegates as well as other
knowledgeable personages expounded their views thereon and in all the media of information
before the proclamation of martial law on September 21, 1972. This is the reason why the
Constitutional Convention, after spending close to P30 million during the period from June 1,
1971 to November 29, 1972, found it expedient to accelerate their proceedings in November, 1972
because all views that could possibly be said on the proposed provisions of the 1973 Constitution
were already expressed and circulated. The 1973 Constitution may contain some unwise
provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to
the wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We
will be substituting Our judgment for the judgment of the Constitutional Convention and in effect
acting as a constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING
MARTIAL LAW.
The position of the respondent public officers that under
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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.

“x x x Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the
Philippines has acted in conformity with the generally accepted principles and policies of international law
which are part of our Constitution.
“The promulgation of said executive order is an exercise by the President of his powers as Commander in
Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styver (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 measures by the military command not only to repel and
defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt
to thwart or impede our military effort have violated the law of war.’ (Ex parte Quirin, 317 U.S., 1; 63
Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the language of a writer, a military commission ‘has
jurisdiction so long as the technical state of war continues. This includes the period of an armistice, or
military occupation, up to the effective date of treaty of peace, and may extend beyond, by treaty
agreement.’ (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal,
June, 1944).’
“Consequently, the President as Commander-in-Chief is fully empowered to consummate this unfinished
aspect of war, namely the trial and punishment of war criminals, through the issuance and enforcement of
Executive Order No. 68.” (83 Phil. 177-178; italics supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this
view, when, in his
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concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as
“the exercise of the power which resides in the executive branch of the government to preserve order
and insure the public safety in times of emergency, when other branches of the government are
unable to function, or their functioning would itself threaten the public safety.” (Italics supplied).
There is an implied recognition in the aforesaid definition of martial law that even in places
where the courts can function, such operation of the courts may be affected by martial law should
their “functioning x x x threaten the public safety.” It is possible that the courts, in asserting their
authority to pass upon questions which may adversely affect the conduct of the punitive
campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict
such judicial function until the danger to the security of the state and of the people shall have
been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
“Finally, this strong government, which in some instances might become an outright dictatorship, can have
no other purposes than the preservation of the independence of the state, the maintenance of the existing
constitutional order, and the defense of the political and social liberties of the people. It is important to
recognize the true and limited ends of any practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in this way: the government of a free state is
proceeding on its way and meeting the usual problems of peace and normal times within the limiting
framework of its established constitutional order. The functions of government are parceled out among a
number of mutually independent offices and institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and constitutional prescriptions; and the people for whom
this government was instituted are in possession of a lengthy catalogue of economic, political, and social
rights which their leaders recognize as inherent and inalienable. A severe crisis arises — the country is
invaded by a hostile power, or a dissident segment of the citizenry revolts, or the impact of a world-wide
depression threatens to bring the nation’s economy in ruins. The government meets the crisis by assuming
more powers and respecting fewer rights. The result is a regime which can act
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arbitrarily and even dictatorially in the swift adoption of measures designed to save the state and its people
from the destructive effects of the particular crisis. And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing more: to end the crisis and restore
normal times. The government assumes no power and abridges no right unless plainly indispensable to that
end; it extends no further in time than the attainment of that end; and it makes no alteration in the
political, social and economic structure of the nation which cannot be eradicated with the restoration of
normal times. In short, the aim of constitutional dictatorship is the complete restoration of the status quo
ante bellum. This historical fact does not comport with philosophical theory, that there never has been a
perfect constitutional dictatorship, is an assertion that can be made without fear of contradiction. But this is
true of all institutions of government, and the principle of constitutional dictatorship remains eternally valid
no matter how often and seriously it may have been violated in practice. (Constitutional Dictatorship, 1948
ed., by Clinton L. Rossiter, p. 7; italics supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises
legislative power, whether of temporary or permanent character, thus:
“The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in
character or effect. Emergency powers are strictly conditioned by their purpose and this purpose is the
restoration of normal conditions. The actions directed to this end should therefore be provisional. For
example, measures of a legislative nature which work a lasting change in the structure of the state or
constitute permanent derogations from existing law should not be adopted under an emergency enabling
act, at least not without the positively registered approval of the legislature. Permanent laws, whether
adopted in regular or irregular times, are for parliaments to enact. By this same token, the decisions and
sentences of extraordinary courts should be reviewed by the regular courts after the termination of the
crisis.
“But what if a radical act of permanent character, one working lasting changes in the political and social
fabric, is indispensable to the successful prosecution of the particular constitutional dictatorship? The only
answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found it necessary to
proceed to the revolutionary step of emancipation in aid of his conservative purpose of preserving the Union;
as a constitutional
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dictator he had a moral right to take this radical action. Nevertheless, it is imperative that any action with
such lasting effects should eventually receive the positive approval of the people or of their representatives in
the legislature. (p. 303, italics supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by
revolution, insurrection or economic depression or dislocation, the government exercises more
powers and respects fewer rights in order “to end the crisis and restore normal times.” The
government can assume additional powers indispensable to the attainment of that end — the
complete restoration of peace. In our particular case, eradication of the causes that incited
rebellion and subversion as secession, is the sine qua non to the complete restoration of normalcy.
Exercise of legislative power by the President as Commander in Chief, upon his proclamation of
martial law, is justified because, as he professes, it is directed towards the institution of radical
reforms essential to the elimination of the causes of rebellious, insurgent or subversive
conspiracies and the consequent dismantling of the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 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
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people against open rebellion, insidious subversion secession. The Chief Executive announced repeatedly
that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec.
10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and freedom, he is
in effect waging a peaceful, democratic revolution from the center against the violent revolution and
subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented secessionists of the extreme left who
demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the
state and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and
subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and
time, should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate
and control the security and happiness of the living present. A contrary view would be to deny the self-
evident proposition that constitutions and laws are mere instruments for the well-being, peace, security and
prosperity of the country and its citizenry. The law as a means of social control is not static but dynamic.
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of
the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the
Constitution is not to be determined by merely opening a dictionary. Its terms must be construed in the
context of the realities in the life of a nation it is intended to serve. Because experience may teach one
generation to doubt the validity and efficacy of the concepts embodied in the existing Constitution and
persuade another generation to abandon them entirely, heed should be paid to the wise counsel of some
learned jurists that in the resolution of constitutional questions — like those posed before Us — the
blending of idealism and practical wisdom or progressive legal realism should be applied (see Alexander M.
Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 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
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gave utterance to the truth that “Our Constitution is not a straight jacket. It is a living organism. As such, it
is capable of growth — or expansion and adaptation to new conditions. Growth implies changes, political,
economic and social.” (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard Professor
Thomas Reed Powell emphasizes “practical wisdom,” for “the logic of constitutional law is the common sense
of the Supreme Court.” (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2 Southern
Law Quarterly, pp. 112, 138-139, cited in Bickel’s Opus, supra; italics supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing is
permanent except change. Living organisms as well as man-made institutions are not immutable.
Civilized men organize themselves into a State only for the purpose of serving their supreme
interest — their welfare. To achieve such end, they created an agency known as the government.
From the savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to
this era of sophisticated electronics and nuclear weaponry, states and governments have mutated
in their search for the magic instrument for their well-being. It was trial and error then as it is
still now. Political philosophies and constitutional concepts, forms and kinds of government, had
been adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at
a particular given epoch. This is true of constitutions and laws because they are not “the infallible
instruments of a manifest destiny.” No matter how we want the law to be stable, it cannot stand
still. As Mr. Justice Holmes aptly observed, every “constitution is an experiment as all life is an
experiment,” (Abrahms vs. U.S., 250 US 616, 631) for “the life of the law is not logic, but
experience.” In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, “so long as society is
inconstant, there can be no constancy in law,” and “there will be change whether we will it or
not.” As Justice Jose P. Laurel was wont to say, “We cannot, Canute-like, command the waves of
progress to halt.”
Thus, political scientists and jurists no longer exalt with vehemence a “government that
governs least.” Adherents there are to the poetic dictum of Alexander Pope: “For forms
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of government let fools contest; whatever is best administered is best.” (Poems of Pope, 1931
Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative
democracy, welfare states, socialist democracy, mitigated socialism, to outright communism
which degenerated in some countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in
the seclusion of his ivory tower, must perforce submit to the inexorable law of change in his
views, concepts, methods and techniques when brought into the actual arena of conflict as a
public functionary — face to face with the practical problems of state, government and public
administration. And so it is that some learned jurists, in the resolution of constitutional issues
that immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend
the blending of idealism with practical wisdom which legal thinkers prefer to identify as
progressive legal realism. The national leader, who wields the powers of government, must and
has to innovate if he must govern effectively to serve the supreme interests of the people. This is
especially true in times of great crises where the need for a leader with vision, imagination,
capacity for decision and courageous action is greater, to preserve the unity of people, to promote
their well-being, and to insure the safety and stability of the Republic. When the methods of
rebellion and subversion have become covert, subtle and insidious, there should be a recognition
of the corresponding authority on the part of the Commander-in-Chief of the Armed Forces to
utilize all the available techniques to suppress the peril to the security of the government and the
State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American
Constitution and former President of the United States, who personifies the progressive liberal,
spoke the truth when he said that some men “ascribe men of the preceding age a wisdom more
than human, and suppose what they did to be beyond amendment. xx xx 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
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truths disclosed and manners and opinions change, with the change of circumstances,
institutions must also advance, and keep pace with the times.” (Vol. 12, Encyclopedia Britanica,
1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of
history. It cannot be adequately and fairly appraised within the present ambience, charged as it
is with so much tension and emotion, if not partisan passion. The analytical, objective historians
will write the final verdict in the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ of habeas corpus without any
constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who
approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the
Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but
also saved the Federal Republic of the United States from disintegration by his suspension of the
privilege of the writ of habeas corpus, which power the American Constitution and Congress did
not then expressly vest in him. No one can deny that the successful defense and preservation of
the territorial integrity of the United States was due in part, if not to a great extent, to the
proclamation of martial law over the territory of Hawaii — main bastion of the outer periphery or
the outpost of the American defense perimeter in the Pacific — which protected the United States
mainland not only from actual invasion but also from aerial or naval bombardment by the enemy.
Parenthetically, the impartial observer cannot accurately conclude that the American Supreme
Court acted with courage in its decision in the cases of Ex parte Milligan and Duncan vs.
Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3, 1866, and
opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the
privilege of the writ of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (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
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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 confines 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
fails, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium,
is not absolute and certainly does not justify the invocation of the power of this Court to compel
action on the part of a co-equal body or its leadership. This was emphasized with sufficient clarity
by this Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22, 24), with which the
distinguished counsels for the petitioners in L-36164 and L-36165 are familiar. We stress that the
doctrine of separation of powers and the political nature of the controversy such as this, preclude
the interposition of the Judiciary to nullify an act of a coordinate body or to command
performance by the head of such a co-ordinate body of his functions.
Mystifying is the posture taken by counsels for petitioners
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in referring to the political question doctrine — almost in mockery — as a magic formula which
should be disregarded by this Court, forgetting that this magic formula constitutes an essential
skein in the constitutional fabric of our government, which, together with other basic
constitutional precepts, conserves the unity of our people, strengthens the structure of the
government and assures the continued stability of the country against the forces of division, if not
of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the
Senate does not depend on the place of session; for the Constitution does not designate the place
of such a meeting. Section 9 of Article VI imposes upon Congress to convene in regular session
every year on the 4th Monday of January, unless a different date is fixed by law, or on special
session called by the President. As former Senator Arturo Tolentino, counsel for respondents
Puyat and Roy in L-36165, stated, the duty to convene is addressed to all members of Congress,
not merely to its presiding officers. The fact that the doors of Congress are padlocked, will not
prevent the senators — especially the petitioners in L-36165 — if they are minded to do so, from
meeting elsewhere — at the Sunken Gardens, at the Luneta Independence Grandstand, in any of
the big hotels or theaters, in their own houses, or at the Araneta Coliseum, which is owned by the
father-in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility, for it cannot
validly meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition
by five former senators for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and
Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene
the body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal
rule of the Senate; it is not a law because it is not enacted by both Houses and approved by the
President.
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The Constitutional provision on the convening of Congress, is addressed to the individual
members of the legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES EIGHT OR
TEN VOTES OF SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged
ratification of the 1973 Constitution is null and void and that the said 1973 Constitution be
declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-

in-Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935
Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is practically
deciding that the same is unconstitutional. The proposed Constitution is an act of the
Constitutional Convention, which is co-equal and coordinate with as well as independent of either
Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the same
category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution
should be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section
9 of the Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section
2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the
case may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973
Constitution must be deemed to be valid, in force and operative.
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X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We
swear “eternal hostility towards any form of tyranny over the mind of man” as well as towards
bigotry and intolerance, which are anathema to a free spirit. But human rights and civil liberties
under a democratic or republican state are never absolute and never immune to restrictions
essential to the common weal. A civilized society cannot long endure without peace and order, the
maintenance of which is the primary function of the government. Neither can civilized society
survive without the natural right to defend itself against all dangers that may destroy its life,
whether in the form of invasion from without or rebellion and subversion from within. This is the
first law of nature and ranks second to none in the hierarchy of all values, whether human or
governmental. Every citizen, who prides himself in being a member 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
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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
avert 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
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beheaded or hanged or guillotined by the very people whom they at first championed and later
deceived. The most bloody of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French
revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons
of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.

ESGUERRA, J.: For Dismissal of Petitions
These petitions seek to stop and prohibit the respondents Executive Officers from
implementing the Constitution signed on November 30, 1972; in L-36165, to compel respondents
Gil Puyat and Jose J. Roy, President and President Pro-Tempore, respectively, of the Senate
under the 1935 Constitution, to convene the Senate in regular session which should have started
on January 22, 1973; to nullify Proclamation No. 1102 of the President, issued on January 17,
1973, which declared the ratification of the Constitution on November 30, 1972, by the Filipino
people, through the barangays or Citizens Assemblies established under Presidential Decree No.
86 issued on December 31, 1972, which were empowered under Presidential Decree No. 86-A,
issued on January 5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a Constitution
after the declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972
Constitution because they are highly unwise and objectionable and the people were not
sufficiently informed about them.
3. The President had no authority to create and empower the Citizens’ Assemblies to ratify the
new Constitution at the
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referendum conducted in connection therewith, as said assemblies were merely for consultative
purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending
the same were not duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General
as counsel for the respondents for comment, with three members of the Court, including the
undersigned, voting to dismiss them outright. The comments were considered motions to dismiss
which were set for hearing and extensively argued. Thereafter both parties submitted their notes
and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges,
are as follows:
1. Is the question presented political and, hence, beyond the competence of this Court to
decide, or is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending
process prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the
reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and,
therefore, not justiciable. I maintain that this Court should abstain from assuming jurisdiction,
but, instead, as an act of judicial statesmanship,
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should dismiss the petitions. In resolving whether or not the question presented is political, joint
discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For after
the acceptance of a new Constitution and acquiescence therein by the people by putting it into
practical operation, any question regarding its validity should be foreclosed and all debates on
whether it was duly or lawfully ushered into existence as the organic law of the state become
political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the
Plebiscite cases decided on January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and
86-A, claiming that the ratification of the new Constitution pursuant to the said decrees is invalid
and of no effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and through these assemblies the proposed
1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the
President announced or declared the result of the referendum or plebiscite conducted through the
Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the new
Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as
unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions have been
adroitly contrived, what is sought to be invalidated is the new Constitution itself — the very
framework of the present Government since January 17, 1973. The reason is obvious. The
Presidential decrees set up the means for the ratification and acceptance of the new Constitution
and Proclamation No. 1102 simply announced the result of the referendum or plebiscite by the
people through the Citizens Assemblies. The Government under the new Constitution has been
running on its tracks normally and apparently without obstruction in the form of organized
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resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue
is whether the new Constitution may be set aside by this Court. But has it the power and
authority to assume such a stupendous task when the result of such invalidation would be to
subject this nation to divisive controversies that may totally destroy the social order which the
Government under the new Constitution has been admirably protecting and promoting under
Martial Law? That the new Constitution has taken deep root and the people are happy and
contended with it is a living reality which the most articulate critics of the new order cannot
deny. 95 out of 108 members of the House of Representatives have opted to serve in the interim
National Assembly provided for under the new Constitution. 15 out of 24 Senators have done
likewise. The members of the Congress did not meet anymore last January 22, 1973, not because
they were really prevented from so doing but because of no serious effort on their parts to assert
their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935
Constitution is a thing of the past. The Executive Department has been fully reorganized; the
appointments of key executive officers including those of the Armed Forces were extended and
they took an oath to support and defend the new Constitution. The courts, except the Supreme
Court by reason of these cases, have administered justice under the new constitution. All
government offices have dealt with the public and performed their functions according to the new
Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court
justify its assumption of jurisdiction when no power has x x x conferred upon it the jurisdiction to
declare the Constitution or any part thereof null and void? It is the height of absurdity and
impudence for a court to wage open war against the organic act to which it owes its existence.
The situation in which this Court finds itself does not permit it to pass upon the question
whether or not the new Constitution has entered into force and has superseded the 1935
Constitution. If it declares that the present Constitution has not been validly ratified, it has to
uphold the 1935 Constitution as still the prevailing organic law. The result would be too
anomalous to describe, for then this Court would
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have to declare that it is governed by one Constitution or the 1935 Constitution, and the
legislative and executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial
discretion in these cases when it would have no other choice but to uphold the new Constitution
as against any other one? In the circumstances it would be bereft of judicial attributes as the
matter would then be not meet for judicial determination, but one addressed to the sovereign
power of the people who have already spoken and delivered their mandate by accepting the
fundamental law on which the government of this Republic is now functioning. To deny that the
new Constitution has been accepted and actually is in operation would be flying in the face of
reason and pounding one’s bare head against a veritable stone wall or a heavily reinforced
concrete, or simply “kicking the deadly pricks” with one’s bare foot in an effort to eliminate the
lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at
that, submission of the people thereto by the organization of the government provided therein
and observance of its prescriptions by public officers chosen thereunder, is indicative of approval.
Courts should be slow in nullifying a Constitution claimed to have been adopted not in
accordance with constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W.
522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston
vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
“x x x 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
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reassembled. If the making of them was in excess of its power, yet as the entire instrument has been
recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary, and
violative of the rights of the people, — who can and properly should remedy the matter, if not to their liking,
— if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the state.”
(Emphasis supplied)
In Smith vs. Good, supra, the Court said:
“It is said that a state court is forbidden from entering upon such an inquiry when applied to a new
constitution, and not an amendment, because the judicial power presupposes an established government,
and if the authority of that government is annulled and overthrown, the power of its courts is annulled with
it; therefore, if a state court should enter upon such an inquiry, come to the conclusion that the government
under which it acted had been displaced by an opposing government, it would cease to be a court, and it
would be incapable of pronouncing a judicial decision upon the question before it; but, if it decides at all, it
must necessarily affirm the existence of the government under which it exercises its judicial powers.”
(Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849)
where it was held:
“Judicial power presupposes an established government capable of enacting laws and enforcing their
execution, and appointing judges to expound and administer them. The acceptance of the judicial office is a
recognition of the authority of government from which it is derived. And if the authority of the government
is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State
court should enter upon the inquiry proposed in this case, and should come to conclusion that the
government under which it acted had been put aside and displaced by an opposing government it would
cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try.
If it decides at all as a court, it necessarily affirms the existence and authority of the government under
which it is exercising judicial power.”
The foreign relations of the Republic of the Philippines have been normally conducted on the
basis of the new Constitution
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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 fit for judicial
determination. For a political question is one entrusted to the people for judgment in their
sovereign capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967, 100 Phil. 1101), or to a
co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs.
Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638,
May 8, 1931). A case involves a political question when there would be “the impossibility of
undertaking independent resolutions without expressing a lack of respect due to coordinate
branches of government,” or when there is “the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.”
To preserve the prestige and eminence that this Court has long enjoyed as the “ultimate organ
of the “Supreme Law of the Land” in that vast range of legal problems often strongly entangled in
popular feeling on which this Court must pronounce,” let us harken to the following admonition
of Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d.
663:
“The Court’s authority — possessed neither of the purse nor the sword — ultimately rests on sustained
public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment,
in fact and appearance, from political entanglements and abstention from injecting itself into the clash of
political forces in political settlement....” (Emphasis supplied)
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The people have accepted and submitted to a Constitution to replace the 1935 Constitution.
The new organic law is now in the plenitude of its efficacy and vigor. We are now living under its
aegis and protection and only the cynics will deny this. This Court should not in the least attempt
to act as a super-legislature or a super-board of canvassers and sow confusion and discord among
our people by pontificating there was no valid ratification of the new Constitution. The sober
realization of its proper role and delicate function and its consciousness of the limitations on its
competence, especially situations like this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those who wish the Court to engage in
their brand of activism and would not mind plunging it into the whirlpool of passion and emotion
in an effort to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution
proposed by the Constitutional Convention of 1971 had been ratified in accordance with the
provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by
this Court on January 22, 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 ratified. The
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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., Sedfrey A. Ordoñez, et al. v. The National Treasurer of 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 Elections, et al., L-35979.
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VOL. 50, MARCH 31, 1973 291

majority of this Court, however, was of the view that the issue was not squarely raised in those
cases, and so the Court, as a body, did make any categorical pronouncement on the question of
whether or not the Constitution proposed by the 1971 Convention was validly ratified. I was the
only one who expressed the opinion that the proposed Constitution was not validly ratified and
therefore “it should not be given force and effect.”
The Court is now called upon to declare, and to inform the people of this country, whether or
not that proposed Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the
issue that we have mentioned because that issue is a political question that cannot be decided by
this Court. This contention by the Solicitor General is untenable. A political question relates to
“those questions which under the Constitution are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has been delegated to the legislative, or
to the executive, branch of the government.2 The courts have the power to determine whether the
acts of the executive are authorized by the Constitution and the laws whenever they are brought
before the court in a judicial proceeding. The judicial department of the government exercises a
sort of controlling, or rather restraining, power over the two other departments of the
government. Each of the three departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one department when that sphere is
actually transcended. While a court may not restrain the executive from committing an unlawful
act, it may, when the legality of such an act is brought before it in a judicial proceeding, declare it
to be void, the same as it may declare a law enacted by the legislature to be unconstitutional.3 It
is a settled doctrine that every officer under a constitutional government must act according to
law and subject to its restrictions, and every departure therefrom, or disregard
_______________
2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr, 369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
292

thereof, must subject him to the restraining and controlling power of the people, acting through
the agency of the judiciary. It must be remembered that the people act through the courts, as well
as through the executive or the legislature. One department is just as representative as the other,
and judiciary is the department which is charged with the special duty of determining the
limitations which the law places upon all official 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
provision of the constitution. And so, it has been held that the question of whether a constitution
shall be amended or not is a political question which is not in the power of the court to decide, but
whether or not the constitution has been legally amended is a justiciable question.7
My study on the subject of whether a question before the court is political or judicial, based on
decisions of the courts in the United States — where, after all, our constitutional system has been
patterned to a large extent — made me arrive at the considered view that it is in the power of
this Court, as the ultimate interpreter of the Constitution, to determine the validity of the
proposal, the submission, and the ratification of any change in the Constitution. Ratification or
non-ratification of a constitutional amendment is a vital element in the procedure to amend the
constitution, and I believe that the Court can inquire into, and decide on, the question of whether
or not an amendment to the constitution, as in the present cases, has been ratified in accordance
with the
_______________
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.
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requirements prescribed in the Constitution that was amended. And so, in the cases now before
Us, I believe that the question of whether or not the Constitution proposed by the 1971
Constitutional Convention had been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the
cases, before Us involve a political, or a judicial, question. I fully concur with his conclusion that
the question involved in these cases is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional
Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting
opinion in the plebiscite cases:
“The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which
reads:
‘Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of
the Senate and of the House of Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.’
“It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967, the
Congress of the Philippines Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
‘Section 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election at which they are submitted
to the people for their ratification pursuant to Article XV of the Constitution.’
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“It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention, there was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by majority of
the votes cast in an election at which they are submitted to the people for the ratification as provided in the
Constitution.
“This Court, in the case of Tolentino vs. Commission Elections, 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 all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of revolution against an existing government or of a bloodless seizure of
power a la coup d’etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restraint and omnipotent all wise, and it as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No
amount of rationalization can belie the fact that the current convention came into being only because
it was called by a resolution of a joint session of Congress acting as a constituent assembly by
authority of Section 1, Article XV of the present Constitution x x x.’
x x x
‘As to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are all subject
to all the provisions of the existing Constitution. Now we hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV.’
“In Proclamation No. 1102, issued on January 17, 1973, the
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VOL. 50, MARCH 31, 1973 295

President of the Philippines certified that as a result of the voting before the barangays (Citizens
Assemblies) 14,976,561 members of the barangays voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the basis of the overwhelming majority of the votes cast
by the members of all the barangays throughout the Philippines, the President proclaimed that the
Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect.
“It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be produced
before this Court to show that no elections were held in accordance with the provisions of the Election Code.
Proclamation No. 1102 unequivocally states that the proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting held in these barangays is not the election
contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated
in said constitutional provision is an election held in accordance with the provisions of the election law,
where only the qualified and registered voters of the country would cast their votes, where official ballots
prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting
booths in the polling places established in the different election precincts throughout the country, where the
election is conducted by election inspectors duly appointed in accordance with the election law, where the
votes are canvassed and reported in a manner provided for in the election law. It was this kind of election
that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women’s Suffrage was ratified; on June 18, 1940, when the
1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the
Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase
the number of Members of the House of Representatives and to allow the Members of Congress to run in the
elections for Delegates to the Constitutional Convention of 1971 were rejected.
“I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding, of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional
Convention.
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“It is my view that the President of the Philippines cannot by decree order the ratification of the proposed
1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in
complete disregard or in violation, of the provisions of Section 1 of Article X of the 1935 Constitution.
“Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of the barangays should be considered a
vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a
plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the
Constitution was completely disregarded.
“The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of
the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through
the election processes as provided by law.
‘An election is the embodiment of the popular will, the expression of the sovereign power of the
people. In common parlance, an election is the act of casting and receiving the ballots, counting them,
and making the return.’ (Hontiveros vs. Altavas, 24 Phil. 632, 637).
‘Election’ implies a choice by an electoral body at the time and substantially in the manner and
with the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com.
P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
‘* * * the statutory method whereby qualified voters or electors pass on various public matters
submitted to them — the election of officers, national, state, county, township — the passing on
various other questions submitted for their determination.’ (29 C.J.S. 13, citing Iowa-Illinois 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
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VOL. 50, MARCH 31, 1973 297

Phrases, Permanent Edition, p. 234).

‘The right to vote may be exercised only on compliance with such statutory requirements as have
been set by the legislature.’ (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied).
“In this connection I herein quote the pertinent provisions of the Election Code of 1971:
‘Sec. 2. Applicability of this Act. — All elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code.’
‘Sec. 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in
any regular or special election or in any plebiscite, he must be registered in the permanent list of
voters for the city, municipality or municipal district in which he resides: Provided, that no person
shall register more than once without first applying for cancellation of his previous registration.’
(Italics supplied). (Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388)
“It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies
who are 15 years of age or over. Under the provision of Section I of Article V of the 1935 Constitution, the
age requirement to be a qualified voter is 21 years or over.
“But what is more noteworthy is the fact that the voting in the barangays, except in very few instances,
was done by the raising of hands by the persons indiscriminately gathered to participate in the voting,
where even children below 15 years of age were included. This is a matter of common observation, or of
common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as
expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or
rejected is to resort to a voting by demonstrations, which is would mean the rule of the crowd, which is only
one degree higher than the rule by the mob. Certainly, so important a question as to whether the
Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply
gathering people and asking
298

them to raise their hands in answer to the question of whether the vote for or against a proposed
Constitution. The election as provided by law should be strictly observed in determining the will of the
sovereign people in a democracy. In our Republic, the will of the people must be expressed through the ballot
in a manner that is provided by law.
“It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are sovereign,
but the will of the people must be expressed in a manner as the law and the demands a 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
adoption of a constitution or in the ratification of an amendment to the Constitution.
“The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified, or not:
‘When it is said that ‘the people’ have the right to alter or amend the constitution, it must not be
understood that term necessarily includes all the inhabitants of the state. Since the question of the
adoption or rejection of a proposed new constitution or constitutional amendment must be answered a
vote, the determination of it rests with those who, by existing constitution, are accorded the right of
suffrage. But the qualified electors must be understood in this, as in many other cases, as representing
those who have not the right to participate in the ballot. If a constitution should be abrogated and a
new one adopted, by the whole mass of people in a state acting through representatives not chosen by
the ‘people’ in political sense of the term, but by the general body of the populace, the movement would
be 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 on certain subjects, and the people of each State created a State
government, to exercise the remaining powers of sovereignty so
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VOL. 50, MARCH 31, 1973 299

far as they were disposed to allow them to be exercised at all. By the constitution which they establish,
they not only tie up the hands of their official agencies, but their own hands as well; and neither the
officers of the State, nor the whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law.’ (Cooley’s Constitutional Limitations, 8th Edition, Vol. I, p. 81
cited in Graham v. Jones, 3 So. 2d. 761, 782).
‘The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a
constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed amendments thereto, does not
prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v.
Frierson, supra, as quoted in the original opinion, ante. The people themselves are bound by the
Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its
mandates, except through the peaceful means of a constitutional convention, or of an amendment
according to the mode therein prescribed, or through the exertion of the original right of revolution.
‘The Constitution may be set aside by revolution, but it can only be amended in the way it provides,’
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al.,
87 So. 375, 385, 387, On Rehearing).
‘The fact that a majority voted for the amendment, unless the vote was taken as provided by the
Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment
has been legally adopted is a judicial question, for the court must uphold and enforce the Constitution
as written until it is amended in the way which it provides for.’ Wood v. Tooker, 15 Mont. 8, 37 Pac
840, 25 L.R.A. 560;McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v.
Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18
Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
‘Provisions of a constitution regulating its own amendment, * * * are not merely directory, but are
mandatory; and a strict observance of every substantial mandatory; and a strict observance of every
substantial requirement is essential to the validity of the proposed amendment. These provisions are
as binding on the people as
300

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 government affairs of the State will result from the
Court’s action in declaring the proposed constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the Court
but will be the result of the failure of the drafters joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that, the Court disregards its sworn duty
to enforce the Constitution, chaos and confusion will result, is an inherently weak argument in favor
of the alleged constitutionality of the proposed amendment. It is obvious that, if the Court were to
countenance the violations of the sacramental provisions Constitution, those who would thereafter
desire to violate it disregard its clear mandatory provisions would resort to the scheme of involving
and confusing the affairs of the State then simply tell the Court that it was powerless to exercise one
of its primary functions by rendering the proper decree to make the Constitution effective.’ (Graham v.
Jones, 3 So. 2d. 761, 793-794).
“In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail,
because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil. 758,
Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of
November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for
the filing of the same. However, on October 10, 1947, after the period for the filing of the certificate of
candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to
revive his certificate of candidacy by withdrawing the withdrawal of certificate of candidacy. The
Commission on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale
nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the
votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico
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VOL. 50, MARCH 31, 1973 301
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the
Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court, it
appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in
favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because
Monsale withdrew his certificate of candidacy, his attempt to revive it by withdrawing his withdrawal of his
certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this Court
declared Nico the winner in spite of the fact that Monsale had obtained more votes than he.
“We have cited this Monsale case to show that the will of the majority of the voters would not be given
effect, as declared by this Court, if certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
“And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays)
is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the
Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the
votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be upheld.
“My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973,
as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise
their right of choice because of the existence of martial law in our country. The same ground holds true as
regards to the voting of the barangays on January 10 to 15, 1973. More so, because by General Order No. 20,
issued on January 7, 1973, the President of the Philippines ordered ‘that the provisions of Section 3 of
Presidential Decree No. 73 in so far as they allow free public discussion of the proposed constitution, as well
as my order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be suspended in the meantime.’ It is,
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therefore, my view that voting in the barangays on January 10, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays should not be made the basis for proclamation of the
ratification of the proposed Constitution.
“It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and so it is
invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of this Republic, and so it should not be
given force and effect.”
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a
substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution
is that “to be valid, amendments must gain the approval of the majority recognition of the
democratic postulate that sovereign resides in the people.” It is not disputed that in a democratic
sovereignty resides in the people. But the term “people” must be understood in its constitutional
meaning, and they are “those persons who are permitted by the Constitution to exercise the
elective franchise.”8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that
“the President shall hold his office during a term of four years and, together with the 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,9this Court, speaking through Mr. Justice Johnson, said, “In democracies, the people,
combined,
_______________
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
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VOL. 50, MARCH 31, 1973 303
represent the sovereign power of the State. Their sovereign authority is expressed through the
ballot, of the qualified voters, in duly appointed elections held from time to time, by means of
which they choose their officials for definite fixed periods, and to whom they entrust, for the time
being, as their representatives, the exercise of the powers of government.” In the case of Moya v.
Del Fierro,10 this Court, speaking through Mr. Justice Laurel, said, “As long as popular
government is an end to be achieved and safeguarded, suffrage, whatever may be the modality
and form devised, must continue to be the means by which the great reservoir of power must be
emptied into the receptacle agencies wrought by the people through their Constitution in the
interest of good government and the common weal. Republicanism, in so far as it implies the
adoption of a representative type of government, necessarily points to the enfranchised citizen as
a particle of popular sovereignty and as the ultimate source of the established authority.” And in
the case of Abanil v. Justice of the Peace of Bacolod,11 this Court said: “In the scheme of our
present republican government, the people are allowed to have a voice therein through the
instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications.
The people, in clothing a citizen with the elective franchise for the purpose of securing a
consistent and perpetual administration of the government they ordain, charge him with the
performance of a duty in the nature of a public trust, and in that respect constitute him a
representative of the whole people. This duty requires that the privilege thus bestowed exclusively
for the benefit of the citizen or class of citizens professing it, but in good faith and with an
intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S.
588)...” There is no question, therefore, that when we talk of sovereign people, what is meant are
the people who act through the duly qualified and registered voters who vote during an election
that is held as provided in the Constitution or in the law.
The term “election” as used in Section 1 of Article XV of the
_______________
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
304

1935 Constitution should be construed along with the term “election” as used in the Provisions of
Section 4 of the Philippine Independence Act of the Congress of the United States, popularly
known as the Tydings-McDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie
Law provides as follows:
“Section 4. After the President of the United States certified that the constitution conforms with the
provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification or
rejection at an election to he held within months after the date of such certification, on a date to be fixed by
the Philippine Legislature at which election, the qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed constitution and ordinances append thereto. Such
election shall be held in such manner as may prescribed by the Philippine Legislature to which the return of
the election shall be made. The Philippine Legislature shall certify the result to the Governor-General of the
Philippine Islands, together with a statement of the votes cast, and a copy of said constitution ordinances. If
a majority of the votes cast shall be for the constitution, such vote shall be deemed an expression of the will
of the people of the Philippine Independence, and the Governor-General shall, within thirty days after
receipt of the certification from the Philippine Legislature, issue a proclamation for the election of officers of
the government of the Commonwealth of the Philippine Islands provided for in the Constitution...”
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word
“election” in Section I Article XV of the 1935 Constitution they had no other idea in mind except
the elections that were periodically held in the Philippines for the choice of public officials prior to
the drafting of the 1935 Constitution, and also the “election” mentioned in the Independence Act
at which “the qualified voters of the Philippine Islands shall have an opportunity to vote directly
for or against the proposed constitution...” It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an amendment to that Constitution similar to the
mode of ratifying the original Constitution itself.
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It is clear therefore, that the ratification or any amendment to the 1935 Constitution could
only be done by holding an election, as the term “election” was understood, and practiced, when
the 1935 Constitution as drafted. The alleged referendum in the citizens assemblies —
participated in by persons aged 15 years or more, regardless of whether they were qualified
voters or not, voting by raising their hands, and the results of the voting reported by the barrio or
ward captain, to the municipal mayor, who in turn submitted the report to the provincial
Governor, and the latter forwarding the reports to the Department of Local Governments, all
without the intervention of the Commission on Elections which is the constitutional body which
has exclusive charge of the enforcement and administration of all laws, relative to the conduct of
elections — was not only a non-substantial compliance with the provisions of Section 1 of Article
XV of the 1935 Constitution but a downright violation of said constitutional provision. It would be
indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a
substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935
Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the
1971 Constitutional Convention was not ratified in accordance with the provisions of Section 1 of
Article XV of the 1935 Constitution, the fact is that after the President of the Philippines had
issued Proclamation No. 1102 declaring that the said proposed Constitution “has been ratified by
overwhelming majority of all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into effect” the people have
accepted the new Constitution. What appears to me, however, is that practically it is only the
officials and employees under the executive department of the Government who have been
performing their duties apparently in observance of the provisions of the new Constitution. It
could not be otherwise, because the President of the Philippines, who is the head of the executive
department, had proclaimed that the new Constitution had come into effect, and his office had
taken the steps to implement the provisions of the new Constitution. True it is, that some 92
members of the
306

House of Representatives and 15 members of the Senate, of the Congress of the Philippines had
expressed their option to serve in the interim National Assembly that is provided for in Section 2
of Article XVII of the proposed Constitution. It must be noted, however, that of the 15 senators
who expressed their option to serve in the interim National Assembly only one them took his oath
of office; and of the 92 members of the House of Representatives who opted to serve in the interim
National Assembly, only 22 took their oath of office. The fact that only one Senator out of 24, and
only 22 Representative out of 110, took their oath of office, is an indication that only a small
portion of the members of Congress had manifested the acceptance of the new Constitution. It is
in the taking of the oath of office where the affiant says that he swears to “support and defend the
Constitution” that the acceptance of the Constitution is made manifest. I agree with counsel
petitioners in L-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 only ex abundante
cautela, or by way of a precaution, making sure, that in the event the new Constitution becomes
definitely effective and the interim National Assembly convened, they can participate in
legislative work in the capacity as duly elected representatives of the people, which otherwise
they could not do if they did not manifest their option to serve, and that option had to be made
within 30 day from January 17, 1973, the date when Proclamation No. 110 was issued. Of course,
if the proposed Constitution does not become effective, they continue to be members of Congress
under the 1935 Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire on December 31, 1973.
Whereas, of the Senators who opted to serve in the interim National Assembly, the term of some
of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National
Assembly, and 18 members of the House of Representatives also did not opt to serve in the
interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I cannot, in
conscience, accept the reported
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VOL. 50, MARCH 31, 1973 307

affirmative votes in the citizens assemblies as a true and correct expression by the people of their
approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the
freedom of the people to express their views regarding the proposed Constitution during the
voting in the citizens assemblies, and I have also my serious doubts regarding the truthfulness
and accuracy of the reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the records of these cases,
particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may
be said that the people, or the inhabitants of this country, have acquiesced to the new
Constitution, in the sense that they have continued to live peacefully and orderly under the
government that has been existing since January 17, 1973 when it was proclaimed that the new
Constitution came into effect. But what could the people do? In the same way that the people
have lived under martial law since September 23, 1972, they also have to live under the
government as it now exists, and as it has existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is operative — whether it is the 1935
Constitution or the new Constitution. Indeed, there is nothing that the people can do under the
circumstances actually prevailing in our country today — circumstances, known to all, and which
I do not consider necessary to state in this opinion. I cannot agree, therefore, with my worthy
colleagues in the Court who hold the view that the people have accepted the new Constitution,
and that because the people have accepted it, the new Constitution should be considered as in
force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1
of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has
not come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the
validity of the proposed Constitution is not in issue in the cases before Us. What the petitioners
assail is not the validity of the proposed Constitution but the validity of Presidential
Proclamation No. 1102 which declares the proposed Constitution as having been ratified and has
come into effect. It being my considered view that the ratification of
308

the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with the
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that Proclamation No. 1102
is invalid and should not be given force and effect. Their proposed Constitution, therefore, should
be considered as not yet validly ratified, and so it is not in force. The proposed Constitution may
still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935
Constitution. Incidentally, I must state that the Constitution is still in force, and this Court is
still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an
election or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935
Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress
when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments
to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of our Republic since the declaration of
martial law is not a revolutionary government, and that he has been acting all the way in
consonance with his powers under the Constitution. The people of this Republic has reason to be
happy because, according to the President, we still have a constitutional government. It being my
view that the 1935 Constitution is still in force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution proposed by the 1971 Constitutional
Convention will be submitted to the people their ratification or rejection. A plebiscite called
pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we
still have in our country the Rule of Law and that the democratic system of government that has
been implanted in our country by the Americans, and which has become part of our social and
political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring
about stability in democratic and constitutional system in our country. I feel that if this Court
would give its imprimatur to the ratification of the proposed Constitution, as announced in
Proclamation
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VOL. 50, MARCH 31, 1973 309

No. 1102, it being very clear that the provisions of Section 1 of Article XV of the 1935
Constitution had not been complied with, We will be opening the gates for a similar disregard of
the Constitution in the future. What I mean is that if this Court now declares that a new
Constitution is now in force because the members of the citizens assemblies had approved the
said new Constitution, although that approval was not in accordance with the procedure and the
requirements prescribed in the 1935 Constitution, it can happen again in some future time that
some amendments to the Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendment is submitted to the people in any
manner and what will matter is that a basis is claimed that there was approval by the people.
There will not be stability in our constitutional system, and necessarily no stability in our
government. As a member of this Court I only wish to contribute my humble efforts to prevent
the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed Constitution through the
voting in the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this
opinion is simply an endeavor on my part to be true to my oath of office to defend and support the
1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:
“Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the
protection and vindication of popular rights will be safe and secure in their reverential guardianship.”
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing
in our land, because, as Justice George Sutherland of the U. S. Supreme Court said:
“(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its
possessors failed to stretch forth a saving hand while yet there was time.”
310


I concur fully with the personal views expressed by the Chief Justice in the opinion that he has
written in these cases. Along with him, I vote to deny the motion to dismiss and give due course
to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental significance is likely
to confront this Court in the near or distant future as that posed by these petitions. For while the
specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse
judgment may be fraught with consequences that, to say the least, are 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 ratification. It could
very well be though that the ultimate outcome is not confined within such limit, and this is not to
deny that under its aegis, there have been marked gains in the social and economic sphere, but
given the premise of continuity in a regime under a fundamental law, which itself explicitly
recognizes the need for change and the process for bringing it about,2 it seems to me that the
more appropriate course is this Court to give heed to the plea of petitioners that the most serious
attention be paid to their submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due respect for the opinion of
my brethren, I must perforce dissent. It would follow therefore that the legal
_______________
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.
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VOL. 50, MARCH 31, 1973 311

position taken by the Chief Justice as set forth with his usual lucidity and thoroughness has, on
the whole, my concurrence, subject, of course, to reservations insofar as it contains views and
nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief expression
of the reasons for the stand I take would not be amiss.In coping with its responsibility arising
from the function of judicial review, this Court is not expected to be an oracle given to utterances
of eternal verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of powers concept, involved
not necessarily as a participant in the formation of government policy, but as an arbiter of its
legality. Even then, there is realism in what Lerner did say about the American Supreme Court
as “the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the
American state and determine the power configuration of the day.”3 That is why there is
this caveat. In the United States as here, the exercise of the power of judicial review is
conditioned on the necessity that the decision of a case or controversy before it so requires. To
repeat, the Justices of the highest tribunal are not, as Justice Frankfurter made clear, “architects
of policy. They can nullify the policy of others, they are incapable of fashioning their own
solutions for social problems.”4 Nonetheless, as was stressed by Professors Black5 and Murphy,6 a
Supreme Court by the conclusion it reaches and the decision it renders does not merely check the
coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in
affirming constitutional supremacy, the political departments could seek the aid of the judiciary.
For
_______________
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).
312

the assent it gives to what has been done conduces to its support in a regime where the rule of
law holds sway. In discharging such a role, this Court must necessarily take in account not only
what the exigent needs of the present demand but what may lie ahead in the unexplored and
unknown vistas of the future. It must guard against the pitfall of lack of understanding of the
dominant forces at work to seek a better life for all, especially those suffering from the pangs of
poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and
a clear case of its being recreant to its trust, if the suspicion can with reason be entertained that
its approach amounts merely to a militant vigilantism that is violently opposed to any form of
social change. It follows then that it does not suffice that recourse be had only to what passes for
scholarship in the law that could be marred by inapplicable erudition and narrow legalism. Even
with due recognition, such factors, however, I cannot, for reasons to be set more lengthily and in
the light of the opinion of the Chief Justice, reach the same result as the majority of my brethren.
For, in the last analysis, it is my firm conviction that the institution of judicial review speaks too
clearly for the point to be missed that official action, even with due allowance made for the good
faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever
there is a proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at the outset, they
would seek a dismissal of these petitions. For them, the question raised is political and thus
beyond the jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is
implicit in the concept of the rule of law that rights belong to the people and the government
possesses powers only. Essentially then, unless such an authority may either be predicated on
express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an
inquiry as to its validity. Respondents through 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
313
VOL. 50, MARCH 31, 1973 313

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 Tolentino9 and Planas10 cases speak unequivocally to that effect.
Nor is it a valid objection to this conclusion that what was involved in those cases was the legality
of the submission and not ratification, for from the very language of the controlling article, the
two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss,11 “cannot be
treated as unrelated acts, but as succeeding steps in a single endeavor.”12 Once an aspect thereof
is viewed as judicial, there would be no justification for considering the rest as devoid of that
character. It would be for me then an indefensible retreat, deriving no justification from
circumstances of weight and gravity, if this Court were to accede to what is sought by
respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v.
Garcia.13 Thus: “The term has been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to
_______________
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.
314

which there has been a prior legislative or executive determination to which deference must be
paid. It has likewise been employed loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof. If to be delimited with accuracy,
“political questions” should refer to such as would under the Constitution be decided by the
people in their sovereign capacity or in regard to full discretionary authority is vested either in
the President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless
clearly falling within the formulation, the decision reached by the political branches whether in
the form of a congressional act or an executive order could be tested in court. Where private
rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight
of that such a power comes into play if there be an appropriate proceeding that may be filed only
after each coordinate branch has acted. Even when the Presidency or Congress possesses plenary
powers, its improvident exercise or the abuse thereof, if shown, may give rise to a justiciable
controversy. For the constitutional grant of authority is usually unrestricted. There are limits to
what may be done and how it is to be accomplished. Necessarily then, the courts in the proper
exercise of judicial review could inquire into the question of whether or not either of the two
coordinate branches has adhered to what is laid down by the Constitution. The question thus
posed is judicial rather than political.”14 The view entertained by Professor Dodd is not too
dissimilar. For him such a term “is employed to designate certain types of functions committed to
the political organs of government (the legislative and executive departments, or either of them)
and not subject to judicial investigation.”15 After a thorough study of American judicial decisions,
both federal and state, he could conclude: “The field of judicial non-enforceability is important,
but is not large when contrasted with the whole body of written constitutional texts. The
exceptions from judicial enforceability fall primarily within the field of public or governmental
interests.”16 Nor was Professor Weston’s formulation any
_______________
14 Ibid., 504-505.
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on Constitutional Law 355, 387
(1938).
16 Ibid., 395.
315
VOL. 50, MARCH 31, 1973 315

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.”17 What appears
undeniable then both from the standpoint of Philippine as well as American decisions is the care
and circumspection required before the conclusion is warranted that the matter at issue is
beyond judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political question, admittedly one of
complexity and importance, deserves to be pursued further. They would derive much aid and
comfort from the writings of both Professor Bickel18 of Yale and Professor Freund19 of Harvard,
both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit
inherent in their lack of enthusiasm for a more active and positive role that must be played by
the United States Supreme Court in constitutional litigation, it must be judged in the light of our
own history. It cannot be denied that from the well nigh four decades of constitutionalism in the
Philippines, even discounting an almost similar period of time dating from the inception of
American sovereignty, there has sprung a tradition of what has been aptly termed as judicial
activism. Such an approach could be traced to the valedictory address before the 1935
Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary in
these words: “It is one of the paradoxes of democracy that the people at times place more
confidence in instrumentalities of the State other than those directly chosen by them for the
exercise of their sovereignty.”20 It would thus appear that even then this Court was expected not
to assume an attitude of timidity and hesitancy when a constitutional question is posed. There
was
_______________
17 Weston, Political Questions, I Selected Essays an Constitutional Law 418, 422 (1938).
18 Cf. Bickel, The Least Dangerous Branch (1962).
19 Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of the United States (1962).
20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appendix L, 800.
316

the assumption of course that it would face up to such a task, without regard to political
considerations and with no thought except that of discharging its trust. Witness these words
Justice Laurel in an early landmark case, People v. Vera,21 decided in 1937: “If it is ever
necessary for us to make vehement affirmance during this formative period of political history, it
is that we are independent of the Executive no less than of the Legislative department of our
government — independent in the performance of our functions, undeterred by any consideration,
free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our
sworn duty as we see it and as we understand it.”22 The hope of course was that such assertion of
independence impartiality was not mere rhetoric. That is a matter more appropriately left to
others to determine. It suffices to stake that what elicits approval on the part of our people of a
judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that
to do so is merely to do what is expected of it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it needs to be kept in kind always that it
can act only when there is a suit with proper parties before it, wherein rights appropriate for
judicial enforcement are sought to be vindicated. Then, too, it does not approach constitutional
questions with dogmatism or apodictic certainty nor view them from the shining cliffs of
perfection. This is not to say though that it is satisfied with an empiricism untroubled by the
search for jural consistency and rational coherence. A balance has to be struck. So juridical
realism requires. Once allowance made that for all its care and circumspection this Court
manned by human beings fettered by fallibility, nonetheless earnestly and sincerely striving to do
right, the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be
obeyed is easy to understand. It has not in the past shirked its responsibility to ascertain whether
there has been compliance with and fidelity to constitutional requirements. Such is the teaching
of a host of cases from
_______________
21 65 Phil. 56 (1937).
22 Ibid., 96.
317
VOL. 50, MARCH 31, 1973 317

Angara v. Electoral Commission23 to Planas v. Commission on Elections.24 It should continue to

exercise its jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence
that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal scholarship by the
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.”25 He went on to state: “Judicial review, they have urged, is an undemocratic shoot
on an otherwise respectable tree. It should be cut off, or at least kept pruned
and inconspicuous.”26 His view was precisely the opposite. Thus: “The power of constitutional
review, to be exercised by some part of the government, is implicit in the conception of a written
constitution delegating limited powers. A written constitution would promote discord rather than
order in society if there were no accepted authority to construe it, at the least in case of
conflicting action by different branches of government or of constitutionally unauthorized
governmental action against individuals. The limitation and separation of powers, if they are to
survive, require a procedure for independent mediation and construction to reconcile the
inevitable disputes over the boundaries of constitutional power which arise in the process of
government.”27 More than that, he took pains to emphasize:
_______________
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.
318

“Whether another method of enforcing the Constitution could have been devised, the short
answer is that no such method developed. The argument over the constitutionality of judicial
review has long since been settled by history. The power and duty of the Supreme Court to
declare statutes or executive action unconstitutional in appropriate cases is part of the living
Constitution. ‘The course of constitutional history,’ Mr. Justice Frankfurter recently remarked,
‘has cast responsibilities upon the Supreme Court which it would be “stultification” for it to
evade.’ ”28Nor is it only Dean Rostow who could point Frankfurter, reputed to belong to the same
school of thought opposed to judicial activism, if not its leading advocate during his long stay in
the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal
which neglects to meet the demands of judicial review. There is a statement of similar importance
from Professor Mason: “In Stein v. New YorkFrankfurter remarked, somewhat self-consciously
perhaps, that the ‘duty of deference cannot be allowed imperceptibly to slide into abdication.’
”29Professor Konefsky, like Dean Rostow, could not accept characterization of judicial review as
undemocratic. Thus his study of Holmes and Brandeis, the following appears: “When it is said
that judicial review is an undemocratic feature of our political system, it ought also to be
remembered that architects of that system did not equate constitutional government with
unbridled majority rule. Out of their concern for political stability and security for private rights,
* * *, they designed a structure whose keystone was to consist of barriers to the untrammeled
exercise of power by any group. They perceived no contradiction between effective government
and constitutional checks. To James Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he
viewed as the chief problem in erecting a system of free representative government: ‘In framing a
government which is to be administered by men over men, the great difficulty lies in
_______________
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).
319
VOL. 50, MARCH 31, 1973 319

this: you must first enable the government to control the governed; and in the next place oblige it
to control itself.’ ”30
There is thus an inevitability to the flowering of judicial review. Could it be that the tone of
discontent apparent in the writings of eminent authorities on the subject evince at the most fears
that the American Supreme Court might overstep the bounds allotted to the judiciary? It cannot
be a denial of the fitness of such competence being vested in judges and of their being called upon
to fulfill such a trust whenever appropriate to the decision of a case before them. That is why it
has been correctly maintained that notwithstanding the absence of any explicit provision in the
fundamental law of the United States Constitution, that distinguished American constitutional
historian, Professor Corwin, could rightfully state that judicial review “is simply incidental to the
power of courts to interpret the law, of which the Constitution is part, in connection with the
decision of cases.”31 This is not to deny that there are those who would place the blame or the
credit, depending upon one’s predilection, on Marshall’s epochal opinion in Marbury v.
Madison.32 Curtis belonged to that persuasion. As he put it: “The problem was given no answer
by the Constitution. A hole was left where the Court might drive in the peg of judicial supremacy,
if it could. And that is what John Marshall did.”33 At any rate there was something in the soil of
American juristic thought resulting in this tree of judicial power so precariously planted by
Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the
American legal scene. Through it, Chief Justice Hughes, before occupying that exalted position,
could state in a lecture: “We are under a Constitution, but the Constitution is what the judges say
it is * * *.”34 The above statement is more than just an aphorism that lends itself to inclusion in
judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson,
an exponent of the judicial restraint school of
_______________
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).
320

thought, this meaningful query: “The Constitution nowhere provides that it shall be what the
judges say it is. How, did it come about that the statement not only could be but could become
current as the most understandable comprehensive summary of American Constitutional
law?”35 It is no wonder that Professor Haines could pithily and succinctly sum up the place of the
highest American tribunal in the scheme of things in this wise: “The Supreme Court of the
United States has come to be regarded as the unique feature of the American governmental
system.”36Let me not be misunderstood. There is here no attempt to close one’s eyes to a
discernible tendency on the part of some distinguished faculty minds to look askance at what for
them may be inadvisable extension of judicial authority. For such indeed is the case as reflected
in two leading cases of recent vintage, Baker v. Carr,37 decided in 1962 and Powell v.
MacCormack,38 in 1969, both noted in the opinion of the Chief Justice. The former disregarded
the warning of Justice Frankfurter in Colegrove v. Green39about the American Supreme Court
declining jurisdiction on the question of apportionment as to do so would cut very deep into the
very being of Congress.”40 For him, the judiciary “ought not to enter this political thicket.” Baker
has since then been followed; it has spawned a host of cases.41 Powell, on the question of the
power of a legislative body to exclude from its ranks a person whose qualifications
_______________
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. (1964); Wright v. Rockefeller, 376 US 52, 11 L ed 2d
512, 84 S Ct (1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1362 (1964); WMCA v. Lomenzo, 377 US 633,
12 L ed 2d 568, 84 S Ct. (1964); Maryland Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442 (1964); Davis
v. Mann, 377 US 678, 12 L ed 2d 609, 84 S Ct. 1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct. 1462
(1964); Lucas v. Colorado General Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 us
433, 13 L ed 2d 401, 85 S Ct. 498 (1965); Burns v. Richardson, 384 US 73, 16 L ed 2d
321
VOL. 50, MARCH 31, 1973 321

are uncontested, for many the very staple of what is essentially political, certainly goes even
further than the authoritative Philippine decision of Vera v. Avelino,42 It does look then that even
in the United States, the plea for judicial self-restraint, even if given voice by those competent in
the field of constitutional law, has fallen on deaf ears. There is in the comments of respondents an
excerpt from Professor Freund quoting from one of his essays appearing in a volume published in
1968. It is not without interest to note that in another paper, also included therein, he was less
than assertive about the necessity for self-restraint and apparently mindful of the claims of
judicial activism. Thus: “First of all, the Court has a responsibility to maintain the constitutional
order, the distribution of public power, and the limitations on that power.”43 As for Professor
Bickel, it has been said that as counsel for the New York Times in the famous Vietnam papers
case,44 he was less than insistent on the American Supreme Court exercising judicial self-
restraint. There are signs that the contending forces on such question, for some an unequal
contest, are now quiescent. The fervor that characterized the expression of their respective points
of view appears to have been minimized. Not that it is to be expected that it will entirely
disappear, considering how dearly cherished are, for each group, the convictions, prejudices one
might even say, entertained. At least what once was fitly characterized as the booming guns of
rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been
centered on the standards that should govern the exercise of the power of judicial review. In his
celebrated Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as
basis for decision what he termed neutral principles of constitutional law.45 It has brought forth a
plethora of law
_______________
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.
322

review articles, the reaction ranging from guarded conformity to caustic criticism.46 There was,
to be sure, no clear call to a court in effect abandoning the responsibility incumbent on it to keep
governmental agencies within constitutional channels. The matter has been put in temperate
terms by Professor Frank thus: “When allowance has been made for all factors, it nevertheless
seems to me that the doctrine of political questions ought to be very sharply confined to where the
functional reasons justify it and that in a give involving its expansion there should be careful
consideration also of the social considerations which may militate against it. The doctrine has a
certain specious charm because of its nice intellectualism and because of the fine deference it
permits to expertise, to secret knowledge, and to the prerogatives of others. It should not be
allowed to grow as a merely intellectual plant.”47
It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable
sources of the worth and significance of judicial review in the United States. I cannot resist the
conclusion then that the views advanced on this subject by distinguished counsel for petitioners,
with
_______________
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 Reflections on Current Constitutional Controversy, 109 U. Pa. L. Rev. 637 (1961); Henson, A Criticism of Criticism:
In re Meaning, 29 Fordham L. Rev. 553 (1961); Miller, A Note on the Criticism of Supreme Court Decisions, 10 J. Pub. L.
139 (1961), Wright, The Supreme Court Cannot be Neutral, 40 Texas L. Rev. 599 (1961); Arnold, Professor Hart’s
Theology, 73 Harv. L. Rev. 1298 (1960); Black, The Lawfulness of the Segration Decisions, 69 Yale L. J. 421 (1960);
Griswold, Of Time and Attitudes: Professor art and Judge Arnold, 74 Harv. L. Rev. 81 (1960); Karst, Legislative Facts in
Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller and Howell The Myth of Neutrality in Constitutional
Adjudication, 27U. Chi. L. Rev. 661 (1960); Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev.
571 (1960); Hart, Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959); Pollak, Racial Domination and
Judicial Integrity: A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959).
47 Cahn, Supreme Court and Supreme Law, 40 (1954).
323
VOL. 50, MARCH 31, 1973 323

Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of the
Solicitor-General, possess the greater weight and carry persuasion. So much then for the
invocation of the political question principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial point that had to
be met is whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV.
There is, of course, the view not offensive to reason that a sense of the realities should temper the
rigidity of devotion to the strict letter of the text to allow deference to its spirit to control. With
due recognition of its force in constitutional litigation,48 if my reading of the events and the
process that led to such proclamation, so clearly set forth in the opinion of the Chief Justice, is
not inaccurate, then it cannot be confidently asserted that there was such compliance. It would be
to rely on conjectural assumptions that did founder on the rock of the undisputed facts. Any other
conclusion would, for me, require an interpretation that borders on the strained. So it has to be if
one does not lose sight of how the article on amendments is phrased. A word, to paraphrase
Justice Holmes may not be a crystal, transparent and unchanged, but it is not, to borrow from
Learned Hand, that eminent jurist, a rubber band either. It would be unwarranted in my view
then to assert that the requirements of the 1935 Constitution have been met. There are American
decisions,49 and they are not
_______________
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, 2D
Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15 Mont. 8, 37 Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526
(1895); State v. Powell, 77 Miss. 543, 27 So. 927 (1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re
Denny, 156 Ind. 104, 59 NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109 Va. 475,
64 SE 342 (1909); People ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v. Speer, 156 Ky. 783, 162
SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915); State v. Marcus, 160 Wis. 354, 152 NW 419 (1915); State
v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In re Opinion of Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v.
Vouchan, 202
324

few in number, which require that there be obedience to the literal terms of the applicable
provision. It is understandable why it should be thus. If the Constitution is the supreme law,
then its mandate must be fulfilled. No evasion is tolerated. Submission to its commands can be
shown only if each and every word is given meaning rather than ignored or disregarded. This is
not to deny that a recognition conclusive effect attached to the electorate manifesting its will to
vote affirmatively on the amendments proposed poses an obstacle to the judiciary being insistent
on the utmost regularity. Briefly stated, substantial compliance is enough. A great many
American State decisions may be cited in support of such a doctrine.50
_______________
Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371 (1921); Switzer v. State, 103 Ohio St. 306, 133
NE 552 (1921); Johnson v. Craft, 87 So. 375, 205 Ala. 386 (1921); In re Opinion of the Justices, 237 Mars. 589, 130 NE 202
(1921); Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922); Hamilton v. Deland, 191 NW 829, 221 Mich. 541 (1923); In
re Initiative Petition, 89 Okl. 124, 214 P. 186 (1923); Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924); McAdams v.
Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Floyd, 130 SC 434, 126 SE 336 (1925); State v. Zimmerman, 187 Wis.
180, 204 NW 803 (1925); Brown v. City of New York, 125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel. Bahns v. City of
New Orleans, 163 La. 777 So. 718 (1927); Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48
Idaho 517, 283 P. 532 (1929); School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW 474 (1933); Collier
v. Gray, 116 Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55 R.I. 56, 178 A. 433 (1935); State ex rel Landis v.
Thompson, 120 Fla. 860,163 So. 270 (1935); Tausig v. Lawrence, 328 Pa. 408, 197 A. 235 (1938); Downs v. City of
Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); Pearson v. Taylor, 159
Fla. 775, 32 So. 2d 826 (1947); Palmer v. Dunn, 216 SC 558, 59 SE 158 (1950).
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); Senate File No. 31, 25 Neb. 864, 41 NW 981 (1889); State v.
Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People, 19 Colo. 441, 36 Pac. 221 (1894); Hays v. Hays, 5 Idaho 154, 47 P.
732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW 756 (1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert v.
Chicago, R.I. Ry. Co. 171 Mo. 84, 70 SW (1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis, 135
Mich. 556, 98 NW 262 (1904); West v. State, 50 Fla. 154,
325
VOL. 50, MARCH 31, 1973 325


Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be
misread, so that this Court is called upon to give meaning and perspective to what could be
considered words of vague generality, pregnant with uncertainty, still whatever obscurity it
possesses is illumined when the light of the previous legislation is thrown on it. In the first
Commonwealth Act,51 submitting to the Filipino people for approval or disapproval certain
amendments to the original
_______________
39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110 NW 113 (1907); Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254
(1908); In re Mcconaughy, 106 Minn. 392, 119 NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824 (1911);
Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee v. Phelps,
76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 Wash. 332, 136 P. 374 (1913); Tabor v. City of Walla Walla, 77 Wash.
579, 137 P. 1040 (1914); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey v. Persinger, 43 Okl. 41,141 P. 13
(1914); Cress v. Estes, 43 Okl. 213 P. 411 (1914); Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor, 117
Ark. 465, 175 SW 40 (1915); Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917); State v. Wetz, 40 N.D. 299, 168 NW 835
(1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319 (1919); Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin v. Nolan, 280
Mo. 401, 217 SW 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston, 116 S.C. 412, 107 SE
581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran, 141 Ind. 586, 119 A. 250 (1922);
Fahey v. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephens, 155 Ga. 529, 117 SE 439 (1923); Manos v. State, 98
Tax. Cr. 87, 263 SW 310 (1924); State v. Zimmermann, 187 Wis. 180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 235, 130
A. 407 (1925); Board of Liquidation of State Debt of Louisiana v. 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).
326

ordinance appended to the 1935 Constitution, it was made that the election for such purpose
was to “be conducted in conformity with the provisions of the Election Code insofar as the same
may be applicable.”52 Then came the statute,53 calling for the plebiscite on the three 1940
amendments providing for the plebiscite on the three 1930 amendments providing for a bicameral
Congress or a Senate and a House of Representatives to take the place of a unicameral National
Assembly,54 reducing the term of the President to four years but allowing his re-election with the
limitation that he cannot serve more than eight consecutive years,55 and creating an independent
Commission on Elections.56 Again, it was expressly provided that the election “shall be conducted
in conformity with the provisions of the Election Code in so far as the same may be
applicable.”57 The approval of the present parity amendment was by virtue of a Republic
Act58 which specifically made applicable the then Election Code.59There is a similar provision in
the legislation,60 which in cotemplation of the 1971 Constitutional Convention, saw to it that
there be an increase in the membership of the House of Representatives a maximum of one
hundred eighty and assured the eligibility of senators and representatives to become members of
such constituent body without forfeiting their seats, as proposed amendments to be voted on in
the 1967 elections.61 That is the
_______________
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
fifty-seven, otherwise known as the Election Code, and Commonwealth Numbered Six hundred and fifty-seven, entitled
“An Act to Reorganize the Commission on Elections,” is so far as they are not inconsistent herewith, are hereby made
applicable to the election provided for in this Act.”
60 Republic Act 4913 (1967).
61 Section 3 of Republic Act 4913 reads thus: “The provisions of
327
VOL. 50, MARCH 31, 1973 327

consistent course of interpretation followed by the legislative branch. It is most persuasive, if

not controlling. The restraints thus imposed would set limits to the Presidential action taken,
even on the assumption that either as an agent of the Constitutional Convention or under his
martial law prerogatives, he was not devoid of power to specify the mode of ratification. On two
vital points, who can vote and how they register their will, Article XV had been given a definitive
construction. That is why I fail to see sufficient justification for this Court affixing the
imprimatur of its approval on the mode employed for the ratification of the revised Constitution
as reflected in Proclamation No. 1102.4. Nor is the matter before us solely to be determined by
the failure to comply with the requirements of Article XV. Independently of the lack of validity of
the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty
resides according to the Constitution,62 then this Court cannot refuse to yield assent to such a
political decision of the utmost gravity, conclusive in its effect. Such a fundamental principle is
meaningless if it does not imply, to follow Laski, that the nation as a whole constitutes the “single
center of ultimate reference,” necessarily the possessor of that “power that is able to resolve
disputes by saying the last word.”63 If the origins of the democratic polity enshrined in the 1935
Constitution with the declaration that the Philippines is a republican state could be traced back
to Athens and to Rome, it is no doubt true, as McIver pointed out, that only with the recognition
of the nation as the separate political unit in public law is there the juridical recognition of the
people composing it “as the source of political authority.”64 From them, as Corwin
_______________
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. Sovereignty resides in the people and all
government authority emanates from them.” Article II, Section 1.
63 Laski, Grammar of Politics, 4th ed., 34 (1937).
64 McIver, The Web of Government, 84 (1947).
328

did stress, emanate “the highest possible embodiment of human will,”65 which is supreme and
must be obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in
the manner ordained by law. Even if such is not the case, however, once it is manifested, it is to
be accepted as final and authoritative. The government which is merely an agency to register its
commands has no choice but to submit. Its officials must act accordingly. No agency is exempt
such a duty, not even this Court. In that sense, the lack of regularity in the method employed to
register its wishes is fatal in its consequences. Once the fact of acceptance by people of a new
fundamental law is made evident, the judiciary is left with no choice but to accord it recognition.
The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not
controlling, they are not entirely bereft of persuasive significance. In Miller v. Johnson,66 decided
in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was
passed in Kentucky, providing for the calling of a convention for the purpose of framing a new
constitution and the election of delegates. It provided that before any form of constitution made
by them should become operative, it should be submitted to the vote of the state and ratified by a
majority of those voting. The constitution then in force authorized the legislature, the
preliminary steps having been taken, to call a convention “for the purpose of readopting,
amending, or changing” it contained no provision giving the legislature the power to require a
submission of its work to a vote of the people. The convention met in September, 1890. By April,
1891, it completed a draft of a constitution, submitted it to a popular vote, and then adjourned
until September following. When the convention reassembled, the delegates made numerous
changes in instrument. As thus amended, it was promulgated by the convention of September 28,
1891, as the new constitution. An
_______________
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.
329
VOL. 50, MARCH 31, 1973 329

action was brought to challenge its validity. It failed in the lower court. In affirming such
judgment dismissing the action, Chief Justice Holt stated: “If a set of men, not selected by the
people according to the forms of law, were to formulate an instrument and declare it the
constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This
would be revolution, and this the courts of the existing government must resist until they are
overturned by power, and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid as a constitution has been
made and promulgated according to the forms of law. It is a matter of current history that both
the executive and legislative branches of the government have recognized its validity as a
constitution, and are now daily doing so. * * * While the judiciary should protect the rights of the
people with great care and jealousy, because this is its duty, and also because; in times of great
popular excitement, it is usually their last resort, yet it should at the same time be careful not to
overstep the proper bounds of its power, as being perhaps equally dangerous; and especially
where such momentous results might follow as would be likely in this instance, if the power of
the judiciary permitted, and its duty requires, the overthrow of the work of the
convention.”67 In Taylor v. Commonwealth,68 a 1903 decision, it was contended that the Virginia
Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention
without being submitted for ratification or rejection by the people. The Court rejected such a
view. As stated in the opinion of Justice Harrison: “The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work of the convention has been recognized,
accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing
fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act
adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the 12th day of June, 1901, as the
_______________
67 Ibid., 523.
68 101 Va. 829, 44 SE 754.
330

Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its
provisions; and the people in their primary capacity by peacefully accepting it and acquiescing in
it, by registering as voters under it to the extent of thousands throughout the state, and by
voting, under its provisions, at a general election for their representatives in the Congress of the
United States. The Constitution having been thus acknowledged and accepted by the office
administering the government and by the people of the state, and there being no government in
existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in
holding that the Constitution in question, which went into effect at noon on the 10th day of July,
1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the
citizens of Virginia owe their obedience and loyal allegiance.”69
It cannot be plausibly asserted then that premises valid in law are lacking for the claim that
the revised Constitution has been accepted by the Filipino people. What is more, so it has been
argued, it is not merely a case of its being implied. Through the Citizens Assemblies, there was a
plebiscite with the result as indicated in Proclamation No. 1102. From the standpoint of
respondents then, they could allege that there was more than just mere acquiescence by the
sovereign people. Its will was thus expressed formally and unmistakably. It may be added that
there was nothing inherently objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the
opportunity to vote to be deplored. The greater the base of mass participation, the more there is
fealty to the democratic concept. It does logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This Court is to respect what had thus
received the people’s sanction. That is not for me though whole of it. Further scrutiny even then
is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to
whether such indeed was the result. This is
_______________
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).
331
VOL. 50, MARCH 31, 1973 331

no more than what the courts do in election cases. There are other factors to bear in mind. The
fact that the President so certified is well-nigh conclusive. There is in addition the evidence
flowing from the conditions of peace and stability. There thus appears to be conformity to the
existing order of things. The daily course of events yields such a conclusion. What is more, the
officials under the 1935 Constitution, including practically all Representatives and a majority of
the Senators, have signified their assent to it. The thought persists, however, that as yet
sufficient time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for such
ascertainment of popular will did take place during a period of martial law. It would have been
different had there been that freedom of debate with the least interference, thus allowing a free
market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of
choice. It would be a clear-cut decision either way. One could be certain as to the fact of the
acceptance of the new or of adherence to the old. This is not to deny that votes are cast by
individuals with their personal concerns uppermost in mind, worried about their immediate
needs and captive to their existing moods. That is inherent in any human institution, much more
so in a democratic polity. Nor is it open to any valid objection because in the final analysis the
state exists for the individuals who in their collectivity compose it. Whatever be their views, they
are entitled to respect. It is difficult for me, however, at this stage to feel secure in the conviction
that they did utilize the occasion afforded to give expression to what was really in their hearts.
This is not to imply that such doubt could not be dispelled by evidence to the contrary. If the
petitions be dismissed however, then such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my
esteemed brethren who vote for the dismissal of these petitions. I cannot yield an affirmative
response to the plea of respondents to consider the matter closed, the proceedings terminated
once and for all. It is not an easy decision to reach. It has occasioned deep thought and
considerable soul-searching. For there are countervailing
332

considerations that exert a compulsion not easy to resist. It can be asserted with truth, especially
in the field of social and economic rights, that with the revised Constitution, there is an
auspicious beginning for further progress. Then too it could resolve what appeared to be the
deepening contradictions of political life, reducing at times governmental authority to near
impotence and imparting a sense of disillusionment in democratic processes. It is not too much to
say therefore that there had indeed been the revision of a fundamental law to vitalize the very
values out of which democracy grows. It is one which has all the earmarks of being responsive to
the dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent
era that is the present. That is why for some what was done represented an act of courage and
faith, coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a majority,
there is not, while these lawsuits are being further considered, the least interference, with the
executive department. The President in the discharge of all his functions is entitled to obedience.
He remains commander-in-chief with all the constitutional powers it implies. Public officials can
go about their accustomed tasks in accordance with the revised Constitution. They can pursue
even the tenor of their ways. They are free to act according to its tenets. That was so these past
few weeks, even petitions were filed. There was not at any time any thought of any restraining
order. So it was before. That is how things are expected to remain even if the motions to dismiss
were not granted. It might be asked though, suppose the petitions should prevail? What then?
Even so, the decision of this Court need not be executory right away. Such a disposition of a case
before this Court is not novel. That was how it was done in the Emergency Powers Act
controversy.70 Once compliance is had with the requirements of Article XV of the 1935
Constitution, to assure that the coming force of the revised charter is free from any taint of
infirmity, then all doubts are set at rest.
_______________
70 Araneta v. Dinglasan, 84 Phil. 368 (1949).
333
VOL. 50, MARCH 31, 1973 333


For some, to so view the question before us is to be caught in a web of unreality, to cherish
illusions that cannot stand the test of actuality. What is more, it may give the impression of
reliance on what may, for the practical man of affairs, be no more than gossamer distinctions and
sterile refinements unrelated to events. That may be so, but I find it impossible to transcend
what for me are the implications of traditional constitutionalism. This is not to assert that an
occupant of the bench is bound to apply with undeviating rigidity doctrines which may have
served their day. He could at times even look upon them as mere scribblings in the sands to be
washed away by the advancing tides of the present. The introduction of novel concepts may be
carried only so far though. As Cardozo put the matter: “The judge, even when he is free, is still
not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He
is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system,
and subordinated to “the primordial necessity of order in the social life.” Wide enough in all
conscience is the field of discretion that remains.”71 Moreover what made it difficult for this Court
to apply settled principles, which for me have not lost their validity, is traceable to the fact that
the revised Constitution was made to take effect immediately upon ratification. If a period of time
were allowed to elapse precisely to enable the judicial power to be exercised, no complication
would have arisen. Likewise, had there been only one or two amendments, no such problem
would be before us. That is why I do not see sufficient justification for the orthodoxies of
constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it ought to have been
and the process of reasoning not without its shortcomings, the basic premises of a constitutional
democracy, as I understand them and as set forth in the preceding pages, compel me to vote the
way I did.
_______________
71 Cardozo, The Nature of the Judicial Process, 141 (1921).
334


TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous
issues of the cases at bar in all their complexity commands my concurrence.
I would herein make an exposition of the fundamental reasons and considerations for my
stand.
The unprecedented and precedent-setting issue submitted by petitioners for the Court’s
resolution is the validity and constitutionality of Presidential Proclamation No. 1102 issued on
January 17, 1973, certifying and proclaiming that the Constitution proposed by the 1971
Constitutional Convention “has been ratified by an overwhelming majority of all the votes cast by
the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has
thereby come into effect.”
More specifically, the issue submitted is whether the purported ratification of the proposed
Constitution by means of the Citizens Assemblies has substantially complied with the mandate of
Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, “shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for their ratification.”1
A necessary corollary issue is whether the purported ratification of the proposed Constitution
as signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have
substantially complied with its own mandate that “(T)his Constitution shall take immediately
upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and except
as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all
amendments thereto.”2
Respondents contend that “(A)lthough apparently what is
_______________
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.
335
VOL. 50, MARCH 31, 1973 335

sought to be annulled is Proclamation No. 1102, what petitioners really seek to invalidate is the
new Constitution,” and their actions must be dismissed, because:
— “the Court may not inquire into the validity of the procedure for ratification” which is “political in
character” and that “what is sought to be invalidated is not an act of the President but of the people;
— “(T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast
as declared and certified in Proclamation No. 1102 is conclusive on the courts;
— “Proclamation No. 1102 was issued by the President in the exercise of legislative power under martial
law. x x x Alternatively, or contemporaneously, he did so as “agent” of the Constitutional Convention”;
— “alleged defects, such as absence of secret voting, enfranchisement of persons less than 21 years, non
supervision (by) the Comelec are matters not required by Article XV of the 1935 Constitution”; (sic)
— “after ratification, whatever defects there might have been in the procedure are overcome
and mooted (and muted) by the fact of ratification”; and
— “(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the ratification
of the new Constitution must nonetheless be respected. For the procedure outlined in Article XV
was not intended to be exclusive of other procedures, especially one which contemplates popular and direct
participation of the citizenry x x x.”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
_______________
3 All quotations from respondents’ memo of arguments dated March 2, 1973, pp. 2-5; italics supplied.
336

Constitution has been ratified and has come into force.4

— The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been
consistently held by the Court in the Gonzales5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized “that the provisions of Section 1 of Article XV of the
Constitution, dealing with the procedure or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government. It must be added that ... they are no
less binding upon the people.”7
— In the same Tolentino case, this Court further proclaimed that “as long as any amendment is
formulated and submitted under the aegis of the present Charter, any proposal for such amendment which
is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive
the sanction of this Court.”8
— As continues to be held by a majority of this Court, proposed amendments to the Constitution “should
be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated
in only by qualified and duly registered voters”9 and under the supervision of the Commission on
Elections.10
— Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported
ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with the
mandatory requirements of Article XV of the (1935) Constitution, it would not be “invalidating” the proposed
new Constitution but would be simply declaring that the announced fact of ratification thereof by means of
the Citizens Assemblies
_______________
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 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.
337
VOL. 50, MARCH 31, 1973 337

referendums does not pass the constitutional test and that the proposed new Constitution
has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by respondent to be “plainly merely declaratory” of the
disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing
the self-same declaration as proof of the purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced
as having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102
and the question of whether “confusion and disorder in government affairs would (not) result”
from a judicial declaration of nullity of the purported ratification is raised by the Solicitor-
General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers
cases,11 wherein the Court in its Resolution of September 16, 1949 after judgment was
initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in
effect that the pre-war emergency powers delegated by Congress to the President, under
Commonwealth Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and
became inoperative at the latest in May, 1946 when Congress met in its first regular session on
May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights that had
arisen under executive orders “issued in good faith and with the best of intentions by three
successive Presidents, and some of them may have already produced extensive effects on the life
of the nation” — in the same manner as may have arisen under the bona fide acts of the
President now in the honest belief that the 1972 Constitution had been validly ratified by means
of the Citizens
_______________
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.
338

Assemblies referendums — and indicated the proper course and solution therefor, which were
duly abided by and confusion and disorder as well as harm to public interest and innocent parties
thereby avoided as follows:
“Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I
am not prepared to hold that all executive orders issued thereafter under Commonwealth Act No.
671, are per se null and void. It must be borne in mind that these executive orders had been
issued in good faith and with the best of intentions by three successive Presidents, and some of
them may have already produced extensive effects in the life of the nation. We have, for instance,
Executive Order No. 73, issued on November 12, 1945, appropriating the sum of P6,750,000 for
public works; Executive Order No. 86, issued on January 7, 1946, amending a previous order
regarding the organization of the Supreme Court; Executive Order No. 89, issued on January 1,
1946, reorganizing Courts of First Instance; Executive Order No. 184, issued on November 19,
1948, controlling rice and palay to combat hunger; and other executive orders appropriating
funds for other purposes. The consequences of a blanket nullification of all these executive orders
will be unquestionably serious and harmful. And I hold that before nullifying them, other
important circumstances should be inquired into, as for instance, whether or not they have been
ratified by Congress expressly or impliedly, whether their purposes have already been
accomplished entirely or partially, and in the last instance, to what extent; acquiescence of
litigants; de facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion
that each executive order must be viewed in the light of its peculiar circumstances, and, if
necessary and possible, nullifying it, precautionary measures should be taken to avoid harm to
public interest and innocent parties.”12
Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and
Guerrero petitions holding null and void the executive orders on rentals and export control but to
defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the
executive orders appropriating the 1949-1950 fiscal year budget for the government and P6
million for the holding of the 1949 national elections. After rehearsing, he further voted to also
declare null
_______________
12 Idem, at pp. 384-385; italics supplied.
339
VOL. 50, MARCH 31, 1973 339

and void the last two executive orders appropriating funds for the 1949 budget and elections,
completing the “sufficient majority” of six against four dissenting justices “to pronounce a valid
judgment on that matter.”13
Then Chief Justice Moran, who penned the Court’s majority resolution, explained his vote for
annulment despite the great difficulties and possible “harmful consequences” in the following
passage, which bears re-reading:
“However, now that the holding of a special session of Congress for the purpose of remedying the nullity
of the executive orders in question appears remote and uncertain, I am compelled to, and do hereby, give my
unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these two executive
orders were issued without authority of law.
“While in voting for a temporary deferment of the judgment I was moved by the belief that positive
compliance with the Constitution by the other branches of the Government, which is our prime concern in
all these cases, would be effected, and indefinite deferment will produce the opposite result because it would
legitimize a prolonged or permanent evasion of our organic law. Executive orders which are, in our opinion,
repugnant to the Constitution, would be given permanent life, opening the way or practices which may
undermine our constitutional structure.
“The harmful consequences which, as I envisioned in my concurring opinion, would come to pass should
the said executive orders be immediately declared null and void are still real. They have not disappeared by
reason of the fact that a special session of Congress is not now forthcoming. However, the remedy now lies in
the hands of the Chief Executive and of Congress, for the Constitution vests in the former the power to call a
special session should the need for one arise, and in the latter, the power to pass a valid appropriations act.
“That Congress may again fail to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel
Congress to remain in special
_______________
13 Idem, at p. 437.
340

session till it approves the legislative measures most needed by the country.
“Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life
in this country, if each of the great branches of the Government, within its own allocated sphere, complies
with its own constitutional duty, uncompromisingly and regardless of difficulties.
“Our Republic is still young, and the vital principles underlying its organic structure should be
maintained firm and strong, hard as the best of steel, so as to insure its growth and development along solid
lines of a stable and vigorous democracy.”14
The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and
void the rental and export control executive orders) likewise observed that “(T)he truth is that
under our concept of constitutional government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’ given the ability to act,
are called upon ‘to perform the duties discharge the responsibilities committed to respectively.’ ”15
It should be duly acknowledged that the Court’s task of discharging its duty and responsibility
has been considerably lightened by the President’s public manifestation of adherence to
constitutional processes and of working within the proper constitutional framework as per his
press conference of January 20,1973, wherein he stated that “(T)he Supreme Court is the final
arbiter of the Constitution. It can and will probably determine the validity of this Constitution. I
did not want to talk about this because actually there is a case pending before the Supreme
Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to
appointments,
_______________
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 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.”
341
VOL. 50, MARCH 31, 1973 341

the matter falls under a general provision which authorizes the Prime Minister to appoint
additional members to the Supreme Court. Until the matter of the new Constitution is decided, I
have no intention of utilizing that power.”16
Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi
held that the questions of whether the submission of the proposed constitutional amendment of
the State Constitution providing for an elective, instead of an appointive, judiciary and whether
the proposition was in fact adopted, were justifiable and not political questions, we may echo the
words therein of Chief Justice Whitfield that “(W)e do not seek a jurisdiction not imposed upon us
by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the
Constitution has imposed upon us. In the particular instance in which we are now acting, our
duty to know what the Constitution of the state is, and in accordance with our oaths to support
and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which
we have not sought, but one which, like all others, must be discharged.”17
In confronting the issues at bar, then, with due regard for my colleagues’ contrary views, we
are faced with the hard choice of maintaining a firm and strict — perhaps, even rigid — stand
that the Constitution is a “superior paramount law, unchangeable by ordinary means” save in the
particular mode and manner prescribed therein by the people, who, in Cooley’s words, so “tied up
(not only) the hands of their official agencies, but their own hands as well”18 in the exercise of
their sovereign will or a liberal and flexible stand that would consider compliance with the
constitutional article on the amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution
may be amended in toto or otherwise exclusively “by approval by a majority of the votes
_______________
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.
342

cast an election at which the amendments are submitted to the people for their
ratification,”19 participated in only by qualified and duly registered voters twenty-one years of age
or over20 and duly supervised by the Commission on Elections,21 in accordance with the cited
mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said requirements on the
theory urged by respondents that “the procedure outlined in Article XV was not intended to
be exclusive of other procedures especially one which contemplates popular and direct
participation of the citizenry,”22 that the constitutional age and literacy requirements and other
statutory safeguards for ascertaining the will of the majority of the people may likewise be
changed as “suggested, if not prescribed, by the people (through the Citizens Assemblies)
themselves,”23and that the Comelec is constitutionally “mandated to oversee ... elections (of
public officers) andnot plebiscites.”24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case
of Marbury vs. Madison25 the U.S. Supreme Court’s power of judicial review and to declare void
laws repugnant to the Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: “(T)he Constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, alterable
when the legislature shall please to alter it. If the former part of the alternative be true, then a
legislative act, contrary to the Constitution, is not law; if the latter part be true, then written
constitutions are absurd attempts on the part of a people, to limit a power, in its own nature,
illimitable.”
_______________
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).
343
VOL. 50, MARCH 31, 1973 343


As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936
landmark case of Angara vs. Electoral Commission,26 “(T)he Constitution sets forth in no
uncertain language the restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be inconceivable if the Constitution
had not provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations of good government and restrictions embodied in our
Constitution are real as they should be in any living Constitution.”
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine
Constitution as “a definition of the powers of government” placed upon the judiciary the great
burden of “determining the nature, scope and extent of such powers” and stressed that “when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments ... but only asserts the solemn and sacred obligation entrusted to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which the instrument secures and guarantees
to them.”
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs.
Maryland27 the “climactic phrase,”28 ”we must never forget that it is a constitution we are
expounding,” — termed by Justice Frankfurter as “the single most important utterance in the
literature of constitutional law — most important because most comprehensive and
_______________
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollak’s “The Constitution and the Supreme Court”, Vol. 1, p. 221.
344

comprehending.”29 This enduring concept to my mind permeated to this Court’s exposition and
rationale in the hallmark case of Tolentino, wherein we rejected the contentions on the
Convention’s behalf “that the issue ... is a political question and that the Convention being a
legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner are
beyond the control of Congress and the Courts.”30
This Court therein made its unequivocal choice of strictly requiring faithful (which really
includes substantial) compliance with the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in
an advance election of 1971 Constitutional Convention’s Organic Resolution No. 1 proposing to
amend Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21
years)30a“without prejudice to other amendments that will be proposed in the future ... on other
portions of the amended section,” this Court stated that “the constitutional provision in question
(as proposed) presents no doubt which may be resolved in favor of respondents and intervenors.
We do not believe such doubt can exist only because it is urged that the end sought to be achieved
is to be desired. Paraphrasing no less than the President of Constitutional Convention of 1934,
Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some laudable objective bear in
mind that someday somehow others with purportedly more laudable objectives may take
advantage of the precedent and continue the
_______________
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.
30a 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 disqualified by law, who are (twenty one) EIGHTEEN years of age or over
and are able to read and write ...”
345
VOL. 50, MARCH 31, 1973 345

destruction of the Constitution, making those who laid down the precedent of justifying
deviations from the requirements of the Constitution the victims of their own folly.”31
2. This Court held in Tolentino that:
“x x x as to matters not related to its internal operation and the performance of its assigned mission to
propose amendments to the Constitution, the Convention and its officers and members are allsubject 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 easeand facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional democracy
such as the one our founding fathers have chosen for this nation, and which we of the succeeding
generations generally cherish. And because the Constitution affects the lives, fortunes, future and every
other conceivable aspectof the lives of all the people within the country and those subject to its sovereignty,
every degree of care is taken in preparing and drafting it. A constitution worthy of the people for
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be conceived and prepared with as much
care and deliberation. From the very nature of things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose
upon themselves. This is not necessarily true of subsequent conventions called to amend the original
constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as
easily mutilated or changed, not only for reasons purely personal but more importantly, because written
constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long
as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule,
the original constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or conditions are
so incorporated in the original constitution, it does not
_______________
31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
346

lie in the delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are powerful and omnipotent as their original counterparts.”32
3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first
advanced in Gonzales vs. Comelec,33 thus:
"We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the voter not only sufficient time butample basis for
an intelligent appraisal of the nature of amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the context of the present state of things,
where the Convention hardly started considering the merits of hundreds, if not thousands, proposals to
amend the existing Constitution, to present to people any single proposal or a few of them cannot comply
with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1
of Article XV a plebiscite or “election” wherein the people are in the dark as to frame of reference they can
base their judgment on. We reject the rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are stating the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, ‘no proper
submission.’ ”34
4. Four other members of the Court35 in a separate concurrence in Tolentino, expressed their
“essential agreement” with Justice Sanchez’ separate opinion in Gonzales on the need for “fair
submission (and) intelligent rejection” as “minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed constitutional amendment” thus:
_______________
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.
347
VOL. 50, MARCH 31, 1973 347


“x x x amendments must be fairly laid before the people for their blessing or spurning. The people are not
to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as
the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences.
We believe the word “submitted” can only mean that the government, within its maximum capabilities,
should strain every effort to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying
that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the
meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs
is that the government, in submitting an amendment for ratification, should put every instrumentality or
agency within its structural framework to enlighten the people, educate them with respect to their act of
ratification or rejection. For as we have earlier stated, one thing is submission and another is ratification.
There must be fair submission, intelligent consent or rejection.”36
They stressed further the need for undivided attention, sufficient information and full debate,
conformably to the intendment of Article XV, section 1 of the Constitution, in this wise:
“A number of doubts or misgivings could conceivably and logically assail the average voter. Why should
the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and
not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old, so that
there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and
dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past
elections, has not performed so well? If the proposed amendment is voted down by the people, will the
Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed amendment ratified at this particular time?
Do some of the members of the Convention have future political plans which they want to begin to subserve
by the approval this year of this
_______________
36 Idem at pp. 1-2.
348

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 compulsory military
service under the colors? Will the contractual consent be reduced to 18 years? If I vote against the
amendment, will I not be unfair to my own child who will be 18 years old, come 1973?
“The above are just samplings from here, there and everywhere — from a domain (of searching questions)
the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the
already long litany. And the answers cannot except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
“Scanning the contemporary scene, we say that the people are not, and by election time will not
be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They
have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of the merits and demerits of the proposed
amendment by their traditional pervasive involvement in local elections and politics. They cannot thus
weigh in tranquility the need for and the wisdom proposed amendment.”37
5. This Court therein dismissed the plea of disregarding mandatory requirements of the
amending process “in favor of allowing the sovereign people to express their decision on the
proposed amendments” as “anachronistic in the real constitutionalism and repugnant to the
essence of the rule of law,” in the following terms:
“x x x The preamble of the Constitution says that the Constitution has been ordained by the ‘Filipino
people, imploring the aid of Divine Providence.’ Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said section, We must read it as if
the people had said, ‘This Constitution may be amended, but it is our will that the amendment must
be proposed and submitted to Us for ratification only in the manner herein provided.’ x x x Accordingly, the
real issue here cannot be whether or not the amending process delineated
_______________
37 Idem at p. 3.
349
VOL. 50, MARCH 31, 1973 349

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 thepeople for ratification or rejection conform with the mandate of the people themselves in
such regard, as expressed in, the Constitution itself.”38
6. This Court, in not heeding the popular clamor, thus stated its position: “(I)t would be tragic
and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in
deciding this case to be carried astray by considerations other than the imperatives of
the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger
measure than when it binds other departments of the government or any other official or entity,
the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in appropriate cases with the proper
parties and by striking down any act violative thereof. Here, as in all other cases, We are resolved
to discharge that duty.”39
7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court’s denial of
the motion for reconsideration, succinctly restated this Court’s position on the fundamentals, as
follows:
— On the premature submission of a partial amendment proposal, with a “temporary provisional or
tentative character”: — “x x x a partial amendment would deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent appraisal of the issue submitted for their ratification or
rejection. x x x Then, too, the submission to a plebiscite of a partial amendment, without a definite frame of
reference, is fraught with possibilities which may jeopardize the social fabric. For one thing, it opens the door
to wild speculations. It offers ample opportunities for overzealous leaders and members of opposing political
camps to
_______________
38Resolution 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.

350

unduly exaggerate the pros and cons of the partial amendment proposed. In short, it is apt to breed false
hopes and create wrong impressions. As a consequence, it is bound to unduly strain the people’s faith in the
soundness and validity of democratic processes and institutions.”
— On the plea to allow submission to the sovereign people of the “fragmentary and incomplete” proposal,
although inconsistent with the letter and spirit of the Constitution: “The view, has, also, advanced that the
foregoing considerations are not decisive on the issue before Us, inasmuch as the people are sovereign, and
the partial amendment involved in this case is being submitted to them. The issue before Us is whether or
not said partial amendment may be validly submitted to the people for ratification “in a plebiscite coincide
with the local elections in November 1971,” and this particular issue will not be submitted to the people.
What is more, the Constitution does not permit its submission to the people. The question sought to be
settled in the scheduled plebiscite is whether or not the people are in favor of the reduction of the voting age.
— On a “political” rather than “legalistic” approach: “Is this approach to the problem too “legalistic?” This
term has possible connotations. It may mean strict adherence to the law, which in the case at bar is
the Supreme Law of the land. On point, suffice it to say that, in compliance with the specific man of such
Supreme Law, the members of the Supreme Court taken the requisite “oath to support and defend the
Constitution.” x x x Then, again, the term “legalistic” may be used to suggest inversely that the somewhat
strained interpretation of the Constitution being urged upon this Court be tolerated or, at least, overlooked,
upon the theory that the partial amendment on voting age is badly needed and reflects the will of the people,
specially the youth. This course of action favors, in effect, adoption of apolitical approach, inasmuch as the
advisability of the amendment and an appraisal of the people’s feeling thereon political matters. In fact,
apart from the obvious message of the mass media, and, at times, of the pulpit, the Court has been literally
bombarded with scores of handwritten letters, almost all of which bear the penmanship and the signature of
girls, as well as letterhead of some sectarian educational institutions, generally stating that the writer is 18
years of age and urging that she or he be allowed to vote. Thus, the pressure of public opinion has brought to
bear heavily upon the Court for a reconsideration of its decision in the case at bar.
351
VOL. 50, MARCH 31, 1973 351


“As above stated, however, the wisdom of the amendment and the popularity thereof are political
questions beyond our province. In fact, respondents and the intervenors originally maintained that We have
no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised is a political
one. Aside from the absence of authority to pass upon political question, it is obviously improper and unwise
for the bench to develop into such questions owing to the danger of getting involved in politics, more likely of
a partisan nature, and, hence, of impairing the image and the usefulness of courts of justice as objective and
impartial arbiters of justiciable controversies.
“Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the people
and the very Convention itself. Indeed, the latter and the Constitution it is in the process of drafting stand
essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution would not be
worthy of its name, and the Convention called upon to draft it would be engaged in a futile undertaking, if
we did not exact faithful adherence to the fundamental tenets set forth in the Constitution and compliance
with its provisions were not obligatory. If we, in effect, approved, consented to or even overlooked a
circumvention of said tenets and provisions, because of the good intention with which Resolution No. 1 is
animated, the Court would thereby become the Judge of the good or bad intentions of the Convention and
thus be involved in a question essentially political in nature.
“This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of judicial
statesmanship in deciding the present case. Indeed, “politics” is the word commonly used to epitomize
compromise, even with principles, for the sake of political expediency or the advancement of the bid for
power of a given political party. Upon the other hand, statesmanship is the expression usually availed of to
refer to high politics or politics on the highest level. In any event, politics, political approach, political
expediency and statesmanship are generally associated, and often identified, with the dictum that “the end
justifies the means.” I earnestly hope that the administration of justice in this country and the Supreme
Court, in particular, will adhere to or approve or indorse such dictum.”40
_______________
40 All quotations are from the Chief Justice’s concurring opinion in Tolentino, pp. 4-7.
352


Tolentino, he pointed out that although “(M)ovants’ submittal that “(T)he primary purpose for the
submission of the proposed amendment lowering the voting age to the plebiscite on November 8,
1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our
population to participate in the ratification of the new Constitution in so far as “to allow young
people who would be governed by the Constitution to be given a say on what kind of Constitution
they will have” is a laudable end, x x x those urging the vitality and importance of the proposed
constitutional amendment and its approval ahead of the complete and final draft of the
Constitution must seek a valid solution to achieve it in a manner sanctioned by the amendatory
process ordained by our people in the present Constitution”41 — so that there may be “submitted,
not piece-meal, but by way of complete and final amendments as an integrated whole (integrated
either with the subsisting Constitution or with the new proposed Constitution)...”
9. The universal validity of the vital constitutional precepts and principles above-enunciated
can hardly be gainsaid. I fail to see the attempted distinction of restricting their application to
proposals for amendments of particular provisions of the Constitution and not to so-called
entirely new Constitutions. Amendments to an existing Constitution presumably may be only of
certain parts or in toto, and in the latter case would 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.
_______________
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9, 10.
353
VOL. 50, MARCH 31, 1973 353


III
1. To restate the basic premises, the people provided in Article XV of the Constitution for the
amending process only “by approval by a majority of the votes cast at an election at which the
(duly proposed) amendments are submitted to the people for their ratification.”
The people ordained in Article V, section 1 that only those thereby enfranchised and granted
the right of suffrage may speak the “will of the body politic,” viz, qualified literate voters twenty
one years of age or over with one year’s residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly approved in 1940 in
accordance with Article XV, for the creation of an independent Commission on Elections with
“exclusive charge” for the purpose of “insuring free, orderly and honest elections” and ascertaining
the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case of
proposed constitutional amendments, insuring proper submission to the electorate of such
proposals.42
2. A Massachussets case43 with a constitutional system and provisions analogous to ours, best
defined the uses of the term “people” as a body politic and “people” in the political sense who are
synonymous with the qualified voters granted the right to vote by the existing Constitution and
who therefore are “the sole organs through which the will of the body politic can be expressed.”
It was pointed out therein that “(T)he word ‘people’ may have somewhat varying significations
dependent upon the connection in which it is used. In some connections in the
_______________
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.
354

Constitution it is confined to citizens and means the same as citizens. It excludes aliens. It
includes men, women and children. It comprehends not only the sane, competent, law-abiding
and educated, but also those who are wholly or in part dependents and charges upon society by
reason of immaturity, mental or moral deficiency or lack of the common essentials of education.
All these persons are secured fundamental guarantees of the Constitution in life, liberty and
property and the pursuit of happiness, except as these may be limited for the protection of
society.”
In the sense of “body politic (as) formed by voluntary association of individuals” governed by a
constitution and common laws in a “social compact ... for the common good” and in another sense
of “people” in a “practical sense” for “political purposes” it was therein fittingly stated that in this
sense, “people” comprises many who, by reason of want of years, of capacity or of the educational
requirements of Article 20 of the amendments of the Constitution, can have no voice in any
government and who yet are entitled to all the immunities and protection established by the
Constitution. ‘People’ in this aspect is coextensive with the body politic. But it is obvious that
‘people’ cannot be used with this broad meaning of political signification. The ‘people’ in this
connection means that part of the entire body of inhabitants who under the Constitution are
entrusted with the exercise of the sovereign power and the conduct of government. The ‘people’ in
the Constitution in a practical sense means those who under the existing Constitution possess the
right to exercise the elective franchise and who, while that instrument remains in force
unchanged, will be the sole organs through which the will of the body politic can be expressed.
‘People’ for political purposes must be considered synonymous with qualified voters.’ ”
As was also ruled by the U.S. Supreme Court, “... While the people are thus the source of
political power, their governments, national and state, have been limited by constitutions, and
they have themselves thereby set bounds to their own power, as against the sudden impulse of
mere
355
VOL. 50, MARCH 31, 1973 355

majorities.”44
From the text of Article XV of our Constitution, requiring approval of amendment proposals
“by a majority of the votes cast at an election at which the amendments are submitted to
the people for their ratification,” it seems obvious as above-stated that “people” as therein used
must be considered synonymous with “qualified voters” as enfranchised under Article V, section 1
of the Constitution— since only “people” who are qualified voters can exercise the right of
suffrage and cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by
the Constitution and implementing statutes to ascertain and record the will of the people in free,
orderly and honest elections supervised by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for the process of amending in toto or in
part the supreme law of the land.
Even at barrio level45 the Revised Barrio Charter fixes certain safeguards for the holding of
barrio plebiscites thus: “SEC. 6. Plebiscite. — A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio assembly, there being a
quorum, or when called by at least four members of the barrio council: Provided, however, That
no plebiscite shall be held until after thirty days from its approval by either body, and such
plebiscite has been given the widest publicity in the barrio, stating the date, time and place
thereof, the questions or issues to be decided, action to be taken by the voters, and such other
information relevant to the holding of the plebiscite.”46
As to voting at such barrio plebiscites, the Charter further requires that “(A)ll duly
registered barrio assembly members qualified to vote may vote in the plebiscite. Voting
procedures
_______________
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 x x.” Rep. Act 3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
356

may be made either in writing as in regular elections, and/or declaration by the voters to the
board of election tellers.”47
The subjects of the barrio plebiscites are likewise delimited thus: “A plebiscite may be called to
decide on the recall of any member of the barrio council. A plebiscite shall be called to approve
any budgetary, supplemental appropriations or special tax ordinances” and the required majority
vote is specified: “(F)or taking action on any of the above enumerated measures, majority vote of
all the barrio assembly members registered in the list of the barrio secretary is necessary.”48
The qualifications for voters in such barrio plebiscites and elections of barrio officials49 comply
with the suffrage qualifications of Article V, section 1 of the Constitution and provide that “(S)EC.
10. Qualifications of Voters and Candidates. — Every citizen of the Philippines, twenty one
years of age or over, able to read and write, who has been a resident of the barrio during the six
months immediately preceding the election, duly registered in the list of voters by the barrio
secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections.”50
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under
the above-cited constitutional articles have not been complied with and that no election or
plebiscite for ratification as therein provided as well as in section 16 of Article XVII of the
proposed Constitution itself51 has been called or held, there cannot be said to have been a
_______________
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. x x.” Idem, sec. 8.
50 Idem, sec. 10, italics supplied. The same section further disqualifies persons convicted by final judgment to suffer
one year or more of imprisonment “within two years after service” or who have violated their allegiance to the Republic
and insane or feeble-minded persons.
51 Supra, p. 2.
357
VOL. 50, MARCH 31, 1973 357
valid ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of the reports or
certificates of results purportedly showing unaccountable discrepancies in seven figures in just
five provinces52 between the reports as certified by the Department of Local Governments and the
reports as directly submitted by the provincial and city executives, which latter reports
respondents disclaimed inter alia as not final and complete or as not signed;53whether 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,54 may be considered as
valid; the allegedly huge and uniform votes reported; and many others.
3. These questions only serve to justify and show the basic validity of the universal principle
governing written constitutions that proposed amendments thereto or in replacement thereof
may be ratified only in the particular mode or manner prescribed therein by the people. Under
Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one way
therein provided, i.e. in an election or plebiscite held in accordance with law and duly supervised
by the Commission on Elections, and which is participated in only by qualified and duly
registered voters. In this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the
_______________
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 five hundred sixty one (14,976,561) members of all the Barangays voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted for its
rejection; but a majority of those who approved the new Constitution conditioned their votes on the demand that
the interim National Assembly provided in its Transitory Provisions should not be convened.”
358

vote and interested parties would have an opportunity to thresh out properly before the Comelec
all such questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question the very statements and
pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the
mandatory amending process required by the (1935) Constitution was not observed, the cases at
bar need not reach the stage of answering the host of questions, raised by petitioners against the
procedure observed by the Citizens Assemblies and the reported referendum results — since the
purported ratification is rendered nugatory by virtue of such non-observance.
5. Finally, as to respondents’ argument that the President issued Proclamation 1102 “as
“agent” of the Constitutional Convention”55 under Resolution No. 5844 approved on November 22,
1973, and “as agent of the Convention the President could devise other forms of plebiscite to
determine the will of the majority vis-a-vis the ratification of the proposed Constitution.”56
The minutes of November 22, 1972, of the Convention, however, do not at all support this
contention. On the contrary, the said minutes fully show that the Convention’s proposal and
“agency” was that the President issue a decree precisely calling a plebiscite for the ratification of
the proposed new Constitution on an appropriate date, under the charge of the Comelec, and with
a reasonable period for an information campaign, as follows:
“12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the
resolution portion of which read as follows:
_______________
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.”
359
VOL. 50, MARCH 31, 1973 359


‘RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention propose to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor, and that copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission on Elections for implementation.’
“He suggested that in view of the expected approval of the final draft of the new Constitution by the end of
November 1972 according to the Convention’s timetable, it would be necessary to lay the groundwork for the
appropriate agencies of the government to undertake the necessary preparation for the plebiscite.
“x x x x x
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because section
15, Article XVII on the Transitory Provision, which had already been approved on second and third
readings, provided that the new constitution should be ratified in a plebiscite called for the purpose by the
incumbent President. Delegate Duavit replied that the provision referred to did not include
the appropriation of funds for the plebiscite and that, moreover, the resolution was intended to serve formal
notice to the President and the Commission on Elections to initiate the necessary preparations.
“x x x x x
“12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information
campaign was necessary in order to properly apprise the people of the implications and significance of the
new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was modified to give
the President the discretion to choose the most appropriate date for the plebiscite.
“12.5 Delegate Laggui asked whether a formal communication to the President informing him of the
adoption of the new Constitution would not suffice considering that under Section 15 of the Transitory
Provisions, the President would be duty-bound to call a plebiscite for its ratification. Delegate Duavit replied
in the negative, adding that the resolution was necessary to serve notice to the proper authorities to prepare
everything necessary for the plebiscite.
360


“12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of
the plebiscite would be laid down by the Commission on Elections in coordination with the President.
“12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of martial
law in order to allow the people to assemble peaceably to discuss the new Constitution. Delegate Duavit
suggested that the Committee on Plebiscite and Ratification could coordinate with the COMELEC on the
matter.
“12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one more
interpellant and that a prior reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
“12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a resolution in
view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duavit disagreed,
pointing out that the said provision did not provide for the funds necessary for the purpose.
“13. Delegate Ozamiz then moved to close the debate and proceed to the period of amendment.
“13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution.
“13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was approved.
“Upon request of the Chair, Delegate Duavit restated the resolution for voting.
“14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion was lost.
“14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands.”57
_______________
57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate Sedfrey A. Ordoñez, et al. in the
plebiscite case L-359042, par. 12 of petition and admitted in par. 4 of answer of therein respondents dated Dec. 15, 1972.
361
VOL. 50, MARCH 31, 1973 361

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 difficult, and yet the more necessary” according to Rossiter, “will
be their fusion in time of crisis... The power of the state in crisis must not only be
_______________
* First decision promulgated by First Division of the Supreme Court.
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concentrated and expanded, it must be freed from the normal system of constitutional and legal
limitations. One of the basic features of emergency powers is the release of the government from
the paralysis of constitutional restraints” (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the government is
channeled through the person of the Chief Executive. “Energy in the executive,” according to
Hamilton, “is essential to the protection of the community against foreign attacks ... to the
protection of property against those irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of liberty against the enterprises and
assaults of ambition, of faction, and of anarchy.” (The Federalist, Number 70). “The entire
strength of the nation,” said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), “may
be used to enforce in any part of the land the full and free exercise of all national powers and the
security of all rights entrusted by the constitution to its care.” The marshalling and employment
of the “strength of the nation” are matters for the discretion of the Chief Executive. The
President’s powers in time of emergency defy precise definition since their extent and limitations
are largely dependent upon conditions and circumstances.
2. The power of the President to act decisively in a crisis has been grounded on the broad
conferment upon the Presidency of the Executive power, with the added specific grant of power
under the “Commander-in-Chief” clause of the constitution. The contours of such powers have
been shaped more by a long line of historical precedents of Presidential action in times of crisis,
rather than judicial interpretation. Lincoln wedded his powers under the “commander-in-chief”
clause with his duty “to take care that the laws be faithfully executed,” to justify the series of
extraordinary measures which he took — the calling of volunteers for military service, the
augmentation of the regular army and navy, the payment of two million dollars from
unappropriated funds in the Treasury to persons unauthorized to receive it, the closing of the
Post Office to “treasonable correspondence,” the blockade of southern ports, the suspension of the
writ of habeas corpus, the arrest and
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detention of persons “who were represented to him” as being engaged in or contemplating

“treasonable practices”— all this for the most part without the least statutory authorization.
Those actions were justified by the imperatives of his logic, that the President may, in an
emergency thought by him to require it, partially suspend the constitution. Thus his famous
question: “Are all laws but one to be unexecuted, and the Government itself go to pieces lest that
one be violated?” The actions of Lincoln “assert for the President,” according to Corwin, “an
initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war
emergency.” (Corwin, The President: Office & Powers, p. 280 [1948]). The facts of the civil war
have shown conclusively that in meeting the domestic problems as a consequence of a great war,
an indefinite power must be attributed to the President to take emergency measures. The concept
of “emergency” under which the Chief Executive exercised extraordinary powers underwent
correlative enlargement during the first and second World Wars. From its narrow concept as an
“emergency” in time of war during the Civil War and World War I, the concept has been
expanded in World War II to include the “emergency” preceding the war and even after it. “The
Second World War” observed Corwin and Koenig, was the First World War writ large, and the
quasi-legislative powers of Franklin Roosevelt as “Commander-in-Chief in wartime.”.. burgeoned
correspondingly. The precedents were there to be sure, most of them from the First World War,
but they proliferated amazingly. What is more, Roosevelt took his first step toward war some
fifteen months before our entrance into shooting war. This step occurred in September, 1940,
when he handed over fifty so-called overage destroyers to Great Britain. The truth is, they were
not overage, but had been recently reconditioned and recommissioned. ... Actually, what
President Roosevelt did was to take over for the nonce Congress’s power to dispose of property of
the United States (Article IV, Section 3) and to repeal at least two statutes.” (Corwin & Koenig,
The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office and
Powers, 1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet
President Wilson, during
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World War I on the basis of his powers under the “Commander-in-Chief” clause created “offices”
which were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirty-
five “executive agencies” were purely of Presidential creation. On June 7, 1941 on the basis of his
powers as “Commander-in-Chief,” he issued an executive order seizing the North American
Aviation plant of Inglewood, California, where production stopped as a consequence of a strike.
This was justified by the government as the exercise of presidential power growing out of the
“duty constitutionally and inherently resting upon the President to exert his civil and military as
well as his moral authority to keep the defense efforts of the United States a going concern” as
well as “to obtain supplies for which Congress has appropriated money, and which it has directed
the President to obtain.” On a similar justification, other plants and industries were taken over
by the government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S.
Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain the
claims that the President could, as the Nation’s Chief Executive and Commander-in-Chief of the
armed forces, validly order the seizure of most of the country’s steel mills. The Court however did
not face the naked question of the President’s power to seize steel plants in the absence of any
congressional enactment or expressions of policy. The majority of the Court found that this
legislative occupation of the field made untenable the President’s claim of authority to seize the
plants as an exercise of inherent executive power or as Commander-in-Chief. Justice Clark, in his
concurrence to the main opinion of the Court, explicitly asserted that the President does possess,
in the absence of restrictive legislation, a residual or resultant power above or in consequence of
his granted powers, to deal with emergencies that he regards as threatening the national
security. The same view was shared with vague qualification by Justices Frankfurter and
Jackson, two of the concurring Justices. The three dissenting Justices, speaking through Chief
Justice Vinson, apparently went further by quoting with approval a passage extracted from the
brief of the government in the case of United States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed.
673, 35 S. Ct. 309) where the court sustained the power of the President to order withdrawals
from the public domain not only without Congressional sanction but even
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VOL. 50, MARCH 31, 1973 365

contrary to Congressional statutes.

It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to
support the view that the President in times of a grave crisis does not possess a residual power
above or in consequence of his granted powers, to deal with emergencies that he regards as
threatening the national security. The lesson of the Steel Seizure case, according to Corwin and
Koenig, “Unquestionably ... tends to supplement presidential emergency power to adopt
temporary remedial legislation when Congress has been, in the judgment of the President,
unduly remiss in taking cognizance of and acting on a given situation.” (Corwin and Koenig, The
Presidency Today, New York University Press, 1956).
The accumulation of precedents has thus built up the presidential power under emergency
conditions to “dimensions of executive prerogative as described by John Locke, of a power to wit,
to fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the
fundamental law of nature and government, namely, that as much as may be all the members of
society are to be preserved.” (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore, that
the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102, since these measures were considered indispensable to effect the desired
reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for
petitioners to contend that we are not faced by an actual “shooting war” for today’s concept of the
emergency which justified the exercise of those powers has of necessity been expanded to meet
the exigencies of new dangers and crisis that directly threaten the nation’s continued and
constitutional existence. For as Corwin observed: “... today the concept of ‘war’ as a special type of
emergency warranting the realization of constitutional limitations tends to spread, as it were, in
both directions, so that there is not only “the war before the war,” but the ‘war after the war.’
Indeed, in the economic crisis from which the New Deal may be said to have
366

issued, the nation was confronted in the opinion of the late President with an ‘emergency greater
than war’; and in sustaining certain of the New Deal measures the Court invoked the justification
of ‘emergency.’ In the final result constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well, seem likely to do so still more
pronouncedly under fresh conditions of crisis.” (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
“The second crisis is rebellion, when the authority of a constitutional government is resisted openly by
large numbers of citizens who are engaged in violent insurrection against enforcement of its laws or are bent
on capturing it illegally or destroying it altogether. The third crisis, one recognized particularly in modern
times as sanctioning emergency action by constitutional governments, is economic depression. The economic
troubles which plagued all the countries of the world in the early thirties involved governmental methods of
an unquestionably dictatorial character in many democracies. It was thereby acknowledged that an
economic existence as a war or a rebellion. And these are not the only cases which have justified
extraordinary governmental action in nations like the United States. Fire, flood, drought, earthquake, riots,
great strikes have all been dealt with by unusual and of dictatorial methods. Wars are not won by debating
societies, rebellions are not suppressed by judicial injunctions, reemployment of twelve million jobless
citizens will not be effected through a scrupulous regard for the tenets of free enterprise, hardships caused
by the eruptions of nature cannot be mitigated letting nature take its course. The Civil War, the depression
of 1933 and the recent global conflict were not and could not have been successfully resolved by governments
similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge.” (Rossiter, Constitutional
Dictatorship — Crisis of Government in the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the referendum in question not
having been done inaccordance with the provisions of existing election laws, which only qualified
voters who are allowed to participate, under the
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supervision of the Commission on Elections, the new Constitution, should therefore be a nullity.
Such an argument is predicated upon an assumption, that Article XV of the 1935 Constitution
provides the method for the revision of the constitution, and automatically apply in the final
approval of such proposed new Constitution the provisions of the election law and those of Article
V and X of the old Constitution. We search in vain for any provision in the old charter specifically
providing for such procedure in the case of a total revision or a rewriting of the wholeconstitution.
1. There is clearly a distinction between revision and amendment of an existing constitution.
Revision may involve a rewriting of the whole constitution. The act of amending a constitution,
on the other hand, envisages a change of only specific provisions. The intention of an act to
amend is not the change of the entire constitution but only the improvement of specific parts of
the existing constitution of the addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete or unresponsive to the needs
of the times.1 The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a
completely new fundamental charter embodying new political,
_______________
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 field of application not
mere alternative procedures in the same field.” (McFadden v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
368

social and economic concepts.

According to an eminent authority on Political Law, “The Constitution of the Philippines and
that of the United States expressly provide merely for methods of amendment. They are silent on
the subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of the United States even
were such conventions called merely for the purpose of proposing and submitting amendments to
the people. For in the final analysis, it is the approval of the people that gives validityto any
proposal of amendment or revision.” (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or procedure for
the revision or for the approval of a new constitution, should it now be held, that the people have
placed such restrictions on themselves that they are not disabled from exercising their right as
the ultimate source of political power from changing the old constitution which, in their view, was
not responsive to their needs and in adopting a new charter of government to enable them to rid
themselves from the shackles of traditional norms and to pursue with new dynamism the
realization of their true longings and aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of the base of political participation, by
the inclusion of the youth in the process of ratification who after all constitute the preponderant
majority more in accord with the spirit and philosophy of the constitution that political power is
inherent in the people collectively? As clearly expounded by Justice Makasiar, in his opinion, in
all the cases cited where the Courts held that the submission of the proposed amendment was
illegal due to the absence of substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so detailed, that specified
the manner in which such submission shall be made, the persons qualified to vote for the same,
the date of election and other definite standards, from which the court could safely ascertain
whether or not the submission was in accordance with the Constitution. Thus the case of In re
McConaughy (119
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VOL. 50, MARCH 31, 1973 369

N.E. 408) relied upon in one of the dissenting opinions involved in the application of the
provisions of the state Constitution of Minnesota which clearly prescribed in detail the procedure
under which the Constitution may be amended or revised.2 This is not true with our Constitution.
In the case of revision there are no “standards meet for judicial judgment.”3The 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
_______________
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.
370

ratification of the proposed new Constitution. The adoption the new Charter was considered as a
necessary basis for all the reforms set in motion under the new society, to root out the causes of
unrest. The imperatives of the emergency underscored the urgency of its adoption. The people in
accepting such procedure and in voting overwhelmingly for the approval of the new Constitution
have, in effect, ratified the method and procedure taken. “When the people adopt completely
revised or new constitution,” said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-
330), “the framing or submission of the instrument is not what gives it binding force and effect.
The fiat of the people, and only the fiat of the people, can breathe life into a constitution.”
This has to be so because, in our political system, all political power is inherent in the people
and free governments are founded on their authority and instituted for their benefit. Thus
Section 1 of Article II of the 1935 Constitution declares that: “Sovereignty resides in the people
and all government authority emanate from them.” Evidently the term people refers to the
entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and
is only an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an entire
Constitution that is already effective as it has been accepted and acquiesced in by the people as
shown by their compliance with the decree promulgated thereunder, their cooperation in its
implementation, and is now maintained by the Government that is in undisputed authority and
dominance?
Of course it is argued that acquiescence by the people can be deduced from their acts of
conformity, because under a regime of martial law the people are bound to obey and act in
conformity with the orders of the President, and has absolutely no other choice. The flaw of this
argument lies in its application of a mere theoretical assumption based on the experiences of
other nations on an entirely different factual setting. Such an assumption flounders on the rock of
reality.
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It is true that as a general rule martial law is the use of military forces to perform the functions
of civil government. Some courts have viewed it as a military regime which can be imposed in
emergency situations. In other words, martial rule exists when the military rises superior to the
civil power in the exercise of some or all the functions of government. Such is not the case in this
country. The government functions thru its civilian officials. The supremacy of the civil over the
military authority is manifest. Except for the imposition of curfew hours and other restrictions
required for the security of the State, the people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive features,
generally associated with a regime of Martial law in other countries. “Upon the other hand the
masses of our people have accepted it, because of its manifold blessings. The once downtrodden
rice tenant has at long last been emancipated — a consummation devoutly wished by every
Philippine President since the 1930’s. The laborer now holds his head high because his rights are
amply protected and respected.”* A new sense of discipline has swiftly spread beyond the
corridors of government into the social order. Responding to the challenges of the New Society,
the people have turned in half a million loose firearms, paid their taxes on undeclared goods and
income in unprecedented numbers and amount, lent their labors in massive cooperation — in
land reform, in the repair of dikes, irrigation ditches, roads and bridges, in reforestation, in the
physical transformation of the environment to make ours a cleaner and greener land. “The entire
country is turning into one vast garden growing food for the body, for thought and for the
soul.”* More important the common man has at long last been freed from the incubus of fear.
“Martial law has paved the way for a 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
_______________
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
372

have been widely recognized as prime sources of the nation’s difficulties — land tenancy, official corruption,
tax evasion and abuse of oligarchic economic power. Clearly he knows his targets ... there is marked public
support for his leadership...” (Bulletin Today, March 3 and 4, 1973).
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of
The New York Times:

During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of legislators to
approve urgently needed reforms. He found his second term further frustrated by spread riots, a Maoist
uprising in Luzon and a much more serious Moslem insurrection in the southern islands from Mindanao
across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims this war is
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, a 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 for a birth control
program with the tacit acceptance of the Catholic Church. He has started labor reforms and increased
wages. (Daily Express, April 15, 1973)
As explained in this writer’s opinion of April 24, 1973 on the “Constancia” and “Manifestation”
of counsel for petitioners:
The new Constitution is considered effective “if the norms created in conformity with it are by
and large applied and obeyed. As soon as the old Constitution loses its effectiveness
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and the new Constitution has become effective, the acts that appear with the subjective meaning
of creating or applying legal norms are no longer interpreted by presupposing the old basic norm,
but by presupposing the new one. The statutes issued under the old Constitution and not taken
over are no longer regarded as valid, and the organs authorized by the old Constitution no longer
competent.” (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by understanding that
in the final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the
President, which is merely declaratory of the fact of approval or ratification, but the legitimacy of
the government. It is addressed more to the framework and political character of this
Government which now functions under the new Charter. It seeks to nullify a Constitution that
is already effective.
In such a situation, We do not see how the question posed by petitioners could be judicially
decided. “Judicial power presupposes an established government capable of enacting laws and
enforcing their execution, and of appointing judges to expound and administer them. If it decides
at all as a court, it necessarily affirms the existence and authority of the government under which
it is exercising judicial power.” (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been effected through
political action, the Court whose existence is affected by such change is, in the words of Mr.
Melville Fuller Weston, “precluded from passing upon the fact of change by a logical difficulty
which is not to be surmounted.”5 Such change in the organic law relates to the
_______________
5 “A written constitution is susceptible of change in two ways: by revolution, which implies action not pursuant to any
provision of the constitution itself; and by revision, which implies action pursuant to some procedural provision in the
constitution. This distinction is concerned with the quare and not with the quantum of change. It may be significant,
however, that the alleged alteration does or does not purport to affect the existence of the court itself. In
374

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
_______________
the nature of things, a revolutionary charge does not admit judicial power as such to determine the fact of its occurrence.
If revolutionary constitution sets up a court differently constituted from the 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 logical explanation of the Duke of York’scase. For the court to give serious judicial consideration to such
a question would present “the singular spectacle of a court sitting as a court to declare that we are not a court.” (Brittle v.
People, 2 Neb. 198, 214 [1873].) And even the alleged new constitution purports to leave intact the former court and to
permit its work to go on without hiatus, the decision which the judges must make is still an individual choice to be made
by them as a matter of practical politics. Two commissions are being held out to them, and if they will act as a court they
must assess under which commission they are acting. To put the matter another way, it must be true that in the first case
above — of two constitutions purporting to establish two different courts, — the men who were judges under the old
regime and the men who are called to be judges under the new have each to decide as individuals what they are to do; and
it may be that they choose at grave peril with the factional outcome still uncertain. And, although it is equally obvious,
the situation is logically identical where the same men are nominated to constitute the court under both the old and new
constitution, at a time when the alleged change is occurring — if it is — peaceably and against a placid popular
background. Men under such circumstances may write most praiseworthily principles of statesmanship, upon sovereignty
and, its nature modes of action, and upon the bases of government, to justify the choice between the two commissions.
They can assert their choice in the course of purported judicial action. But they cannot decide as a court, for the decision,
once made, by a retroactive hypothesis excludes any assumption of controversiality in the premises.
“Where the alleged change occurs not through revolutionary measures but through what has been called revision, these
logical difficulties disappear in one aspect, but become far more embarrassing in another. Where the alteration purports
to be made along the lines of a procedural method laid down in the constitution, there is a standard which the court can
apply and, by so
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horizontal distribution of powers.”6 It involves in essence a matter which “the sovereign has
entrusted to the so-called
_______________
doing, it can perceive judicially whether or not the change has followed the prescribed lines. If it has, there is no difficulty
in pronouncing as a matter of law its accomplishment. Only one exception is possible, namely, the ease where the
alteration purports at once to abolish the court or to depose its personnel. Then, although there would be a question of law
to be decided, it may be wondered who there is to decide it. Suppose, however, the mode of change has failed in some way
to conform to a directory provision of the amending clause of the constitution; is the court to declare the attempt at
alteration unsuccessful? It would seem as a matter of law that it must do so; and yet what is the situation if the
proponents of the change say, “It is true that this measure failed under the amending clause, but as a revolutionary
measure it was a success and we insist upon its recognition.” Clearly the members of the court are now more badly than
ever entangled in the logical difficulties which attend a purported judicial pronouncement upon the achievement or 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 offices of any branch of the government. The popular
inertia is likely to allow the court successfully to assume the question to be one of law. The path of fallacy is not too
strikingly fallacious to the uncritical observer. It may lead to just results. The judges’ personal inclinations will be to show
deference to the expression of popular sentiment which has been given. And yet, if they declare the change in force, they
are truly making a personal declaration that they believe the change to be the directly expressed will of the sovereign,
which will they assert to be law, but the fact of existence of which will — and this is the real decision — is not
ascertainable in the given case by any legal means. It is submitted that this is true, and that the conclusions offered in
the discussion of revolutionary change are true, also, whether the quantum of change involved be vast or almost
negligible.
“The net result of the preceding discussion is this: that in almost the whole field of problems which the Duke of
York’s case and the American constitutional amendment cases present, the court as a court is precluded from passing
upon the fact of change by a logical difficulty which is not to be surmounted. It follows that there is no room for
considering whether the court ought graciously and deferentially to look to the executive or legislative for a decision that
a change has or has not taken place.
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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 fit instruments of
decision where what is essentially at stake is the composition of those large contests of policy
traditionally fought out in non-judicial forums, by which governments and the actions of
governments are made and unmade.”
The diversity of views contained in the opinions of the members of this Court, in the cases at
bar, cannot be a case on “right” or “wrong” views of the Constitution. It is one of attitudes and
values. For there is scarcely any principle, authority or interpretation which has not been
countered by the opposite. At bottom, it is the degree of one’s faith — in the nation’s leadership
and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this
Court in its judgment of March question becomes wholly moot except for this consideration, that,
when the judges as individuals or as a body of individuals come to decide which king or which
constitution they will support and assert to represent, it may often be good judgment for them to
follow the lead of the men who as a practical matter are likely to be looked to by the people as
more representative of themselves and conversely are likely to be more directly in touch with
popular sentiment. If, however, the judges hold too strong views of their own to be able to take
this course, they may follow their own leads at their own hazard. No question of law is involved.
(Political Questions, 38 Harvard Law Review [1924-25], pp. 305-309.)
_______________
6 & 7 Ibid., pp. 301, 305.
377
VOL. 50, MARCH 31, 1973 377


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
becomes effective thirty days after the certification of the election returns by the secretary of
state.
Sec. 2. Convention. The legislature may call constitutional conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not
been held, the secretary of state shall place on the ballot for the next general election the
question: “Shall there be a Constitutional Convention?” If a majority of the votes cast on the
question are in the negative, the question need not be placed on the ballot until the end of the
next ten-year period. If a majority of the votes cast on the question are in the affirmative,
delegates to the convention shall be chosen at the next regular statewide election, unless the
legislature provides for the election of the election delegates at a special election. The secretary of
state shall issue the call for the convention. Unless other provisions have been made by law, the
call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of
1955,
378

including, but not limited to, number of members, districts, election and certification of delegates,
and submission and ratification of revisions and ordinances. x x x.
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the
constitution, subject only to ratification by the people. No call for a constitutional convention
shall limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may
be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in
their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature
to submit such proposed amendment or amendments to the people in such manner, and at such
time, and after such publication as may be deemed expedient. Should more amendments than one
be submitted at the same election they shall be so prepared and distinguished, by numbers or
otherwise, that each can be voted on separately. If the people shall approve and ratify such
amendment or amendments, or any of them, by a majority of the qualified electors voting thereon
such amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch
of the Legislature shall deem it necessary to revise this Constitution, they shall recommend to
the electors to vote at the next general for or against a Convention for that purpose, and if a
majority of the electors voting at such election on the proposition for a Convention shall vote in
favor thereof, the Legislature shall, at its next session, provide by law for calling the same. The
Convention shall consist of a number of delegates not to exceed that of both branches of the
Legislature, who shall be chosen in the same manner, and have the same qualifications, as
Members of the Legislature. The delegates so elected shall meet within three months after their
election at such place as
379
VOL. 50, MARCH 31, 1973 379

the Legislature may direct. At a special election to be provided for by law, the Constitution that
may be agreed upon by such Convention shall be submitted to the people for their ratification or
rejection, in such manner as the Convention may determine. The returns of such election shall, in
such manner as the Convention shall direct, be certified to the Executive of the State, who shall
call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns
so certified to him; and it shall be the duty of the Executive to declare, by his proclamation, such
Constitution, as may have been ratified by a majority of all the votes cast at such special election,
to be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote
of two-thirds of the members elected to each house, recommend to the electors of the state, to vote
at the next general election for or against a convention to revise, alter and amend this
constitution; and if a majority of those voting on the question shall declare in favor of such
convention, the general assembly shall, at the next session, provide for the calling thereof. The
number of members of the convention shall be twice that of the senate and they shall be elected
in the same manner, at the same places, and in the same districts. The general assembly shall, in
the act calling the convention, designate the day, hour and place of its meeting; fix the pay of its
members and officers, and provide for the payment of the same, together with the necessary
expenses of the convention. Before proceeding, the members shall take an oath to support the
constitution of the United States, and of the state of Colorado, and to faithfully discharge their
duties as members of the convention. The qualifications of members shall be the same as of
members of the senate; and vacancies occurring shall be filled in the manner provided for filling
vacancies in the general assembly. Said convention shall meet within three months after such
election and prepare suchrevisions, alterations or amendments to the constitution as may be
deemed necessary; which shall be submitted to the electorsfor their ratification or rejection at an
election appointed by the convention for that purpose, not less
380

than two nor more than six months after adjournment thereof; and unless so submitted and
approved by a majority of the electors voting at the election, no such revision, alteration or
amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this
constitution may be proposed in either house of the general assembly, and if the same shall be
voted for by two-thirds of all the members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall be entered in full on
their respective journals; the proposed amendment or amendments shall be published with the
laws of that session of the general assembly, and the secretary of state shall also cause the said
amendment or amendments to be published in full in not more than one newspaper of general
circulation in each county, for four successive weeks previous to the next general election for
members of the general assembly; and at said election the said amendment or amendments shall
be submitted to the qualified electors of the state for their approval or rejection, and such as are
approved by a majority of those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted
the same as though but one amendment was submitted. But the general assembly shall have no
power to propose amendments to more than six articles of this constitution at the same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment
or amendments to this Constitution may be proposed in the Senate or House of Representatives;
and if the same shall be agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals, with the yeas and nays
taken thereon, and the
381
VOL. 50, MARCH 31, 1973 381

Secretary of State shall cause such proposed amendment or amendments to be published three
months before the next general election in at least three newspapers in each County in which
such newspaper shall be published; and if in the General Assembly next after the said election
such proposed amendment or amendments shall upon yea and nay vote be agreed to by two-thirds
of all the members elected to each House, the same shall thereupon become part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and
duties; vacancies. The General Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the qualified electors of the State at
the general election next thereafter the question, “Shall there be a Convention to revise the
Constitution and amend the same?”; and upon such submission, if a majority of those voting on
said question shall decide in favor of a Convention for such purpose, the General Assembly at its
next session shall provide for the election of delegates to such convention at the next general
election. Such Convention shall be composed of forty-one delegates, one of whom shall be chosen
from each Representative District by the qualified electors thereof, and two of whom shall be
chosen from New Castle County, two from Kent County and two from Sussex County by the
qualified electors thereof respectively. The delegates so chosen shall convene at the Capital of the
State on the first Tuesday in September next after their election. Every delegate shall receive for
his services such compensation as shall be provided by law. A majority of the Convention shall
constitute a quorum for the transaction of business. The Convention shall have the power to
appoint such officers, employees and assistants as it may be deem necessary, and fix their
compensation, and provide for the printing of its documents, journals, debates and proceedings.
The Convention shall determine the rules of its proceedings, and be the judge of the elections,
returns and qualifications of its members. Whenever there shall be a vacancy in the office of
delegate from any district or county by reason of failure to elect, ineligibility, death, resignation
or otherwise, a writ of election to fill such vacancy shall be issued by the Governor, and such
vacancy shall be filled by the
382

qualified electors of such district or county.

5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular
session, or at any special or extra-ordinary session thereof called for such purpose either in the
governor’s original call or any amendment thereof, may propose the revision or amendment of
any portion or portions of this Constitution. Any such revision or amendment may relate to one
subject or any number of subjects, but no amendment shall consist of more than one revised
article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the members elected to
each house, it shall be entered upon their respective journals with the yeas and nays and
published in one newspaper in each county where a newspaper is published for two times, one
publication to be made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon, and thereupon
submitted to the electors of the State for approval or rejection at the next general election,
provided, however, that such revision or amendment may be submitted for approval or rejection
in a special election under the conditions described in and in the manner provided by Section 3 of
Article XVII of the Constitution. If a majority of the electors voting upon the amendment adopt
such amendment the same shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of 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 countries where no newspaper is published, notice shall be given by posting at the
several polling precincts in such
383
VOL. 50, MARCH 31, 1973 383

counties for six weeks next preceding said election. The electors at said election may vote for or
against the revision in question. If a majority of the electors so voting be in favor of revision, the
Legislature chosen at such election shall provide by law for a Convention to revise the
Constitution, said Convention to be held within six months after the passage of such law. The
Convention shall consist of a number equal to the membership of the House of Representatives,
and shall be apportioned among the several counties in the same manner as members of said
House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or amendments to this
Constitution may be proposed in either branch of the legislature, and if the same shall be agreed
to by two-thirds of all the members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be entered on their journals,
and it shall be the duty of the legislature to submit such amendment or amendments to the
electors of the state at the next general election, and cause the same to be published without
delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of
the general circulation published in each county; and if a majority of the electors shall ratify the
same, such amendment or amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever 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.
384


Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred
and seventy, and in each tenth year thereafter, and also at such times as the General Assembly
may, by law, provide, the question, “Shall there be a Convention to revise the Constitution,
and amend the same?” shall be decided by the electors qualified to vote for members of the
General Assembly; and in case a majority of the electors so qualified, voting at such election, for
and against such proposition, shall decide in favor of a Convention for such purpose, the General
Assembly, at its next session, shall provide by law for the election of delegates to such
Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any
amendment or amendments to this constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals, respectively, with the yeas and
nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn
election thereafter, as the legislature shall direct; and, if a majority of the electors qualified to
vote for members of the legislature voting thereon shall ratify and approve such amendment or
amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in
the year 1961, in each sixteenth year thereafter and at such times as may be provided by law, the
question of a General Revision of the Constitution shall be submitted to the Electors qualified to
vote for members of the Legislature. In case a majority of the Electors voting on the question
shall decide in favor of a Convention for such purpose, at an Election to be held not later than
four months after the Proposal shall have been certified as approved, the Electors of each House
of Representatives District as then organized shall Elect One Delegate for each Electors of each
Senatorial District as then organized shall Elect One Delegate for each State Senator to which
the District
385
VOL. 50, MARCH 31, 1973 385

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. x x x No proposed constitution or amendment adopted by such
convention shall be submitted to the electors for approval as hereinafter provided unless by the
assent of a majority of all the delegates elected to the convention, the yeas and nays being
entered on the journal. Any proposed constitution or amendments adopted by such convention
shall be submitted to the qualified electors in the manner provided by such convention on the first
Monday in April following the final adjournment of the convention; but, in case an interval of at
least 90 days shall not intervene between such final adjournment and the date of such election.
Upon the approval of such constitution or amendments by a majority of the qualified electors
voting thereon such constitution or amendments shall take effect on the first day of January
following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid.
Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend
this Constitution, they may proposed such alterations or amendments, which proposed
amendments shall be published with the laws which have been passed at the same session, and
said amendments shall be submitted to the people for their approval or rejection at any general
election, and if it shall appear, in a manner to be provided by law, that a majority of all the
electors voting at said election shall have voted for and ratified such alterations or amendments,
the same shall be valid to all intents and purposes as a part of this Constitution. If two or more
alterations or amendments shall be submitted at the same time, it shall be so regulated that the
voters shall vote for or against each separately.
386


Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of
the legislature shall think it necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for members of the legislature, for
or against a convention; and if a majority of all the electors voting at said election shall have
voted for a convention, the legislature shall, at their next session, provide by law for calling the
same. The convention shall consist of as many members as the House of Representatives, who
shall be chosen in the same manner, and shall meet within three months after their election for
the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention. Any convention
called to revise this constitution shall submit any revision thereof by said convention to the
people of the State of Minnesota for their approval or rejection at the next general election held
not less than 90 days after the adoption of such revision, and, if it shall appear in the
manner provided by law that three-fifths of all the electors voting on the question shall have
voted for and ratified such revision, the same shall constitute a new constitution of the State of
Minnesota. Without such submission and ratification, said revision shall be of no force or effect.
Section 9 of Article IV of the Constitution shall not apply to election to the convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this
Constitution may be proposed in the Senate or Assembly; and if the same shall be agreed to by a
Majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the Yeas and Nays taken thereon,
and referred to the Legislature then next to be chosen, and shall be published for three months
next preceding the time of making such choice. And if in the Legislature next chosen as aforesaid,
such proposed amendment or amendments shall be agreed to by a majority of all the members
elected to each house, then it shall be the duty of the Legislature to submit such proposed
amendment
387
VOL. 50, MARCH 31, 1973 387

or amendments to the people, in such manner and at such time as the Legislature shall prescribe;
and if the people shall approve and ratify such amendment or amendments by a majority of the
electors qualified to vote for members of the Legislature voting thereon, such amendment or
amendments shall become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a
vote of two-thirds of the Members elected to each house, shall determine that it is necessary to
cause a revision of this entire Constitution they shall recommend to the electors at the next
election for Members of the Legislature, to vote for or against a convention, and if it shall appear
that a majority of the electors voting at such election, shall have voted in favor of calling a
Convention, the Legislature shall, at its next session provide by law for calling a Convention to be
held within six months after the passage of such law, and such Convention shall consist of a
number of Members not less that of both branches of the legislature. In determining what is a
majority of the electors voting such election, reference shall be had to the highest number of vote
cast at such election for the candidates of any office or on any question.
11. New 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 first annual meetings for
the choice of senators, after the expiration of seven years from the adoption of this constitution,
as amended, to insert expressly in the warrant this purpose, among the others for the meeting, to
wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and,
the meeting being warned accordingly, and not otherwise, the moderator shall take the sense of
the
388

qualified voters present as to the necessity of a revision; and a return of the number of votes for
and against such necessity, shall be made by the clerk sealed up, and directed to the general
court at their then next session; and if, it shall appear to the general court by such return, that
the sense of the people of the state has taken, and that, in the opinion of the majority of the
qualified voters in the state, present and voting at said meetings, there is a necessity for
a revision of the constitution, it shall be the duty of the general court to call a convention for that
purpose, otherwise the general court shall direct the sense of the people to be taken, and then
proceed in the manner before mentioned. The delegates to be chosen in the same manner, and
proportioned, as the representatives to the general court; provided that no alterations shall be
made in this constitution, before the same shall be laid before the towns and unincorporated
places, and approved by two thirds of the qualified voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.
Any amendment or amendments to this Constitution may be proposed in either branch of the
Legislature, and if the same shall be agreed to by a majority of all the members elected to each of
the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be
entered in their journals and referred by the Secretary of State to the people for their approval or
rejection, at the next regular general election, except when the Legislature, by a 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
389
VOL. 50, MARCH 31, 1973 389

proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new constitution. No convention
shall be called by the Legislature to propose alterations, revisions, or amendments to this
Constitution, or to propose a new Constitution, unless the law providing for such convention shall
first be approved by the people on a referendum vote at a regular or special election, and any
amendments, alterations, revisions, or new Constitution, proposed by such convention, shall be
submitted to the electors of the State at a general or special election and be approved by a
majority of the electors voting thereon, before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to the people at least once in every
twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution

may be proposed in either branch of the legislative assembly, and if the same shall be agreed to
by a majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their journals and referred by
the secretary of state to the people for their approval or rejection, at the next regular election,
except when the legislative assembly shall order a special election for that purpose. If a majority
of the electors voting on any such amendment shall vote in favor thereof, it shall thereby become
a part of this Constitution. The votes for and against such amendment, or amendments, severally,
whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the
secretary of state in the presence of the governor, and if it shall appear to the governor that the
majority of the votes cast at said election on said amendment, or amendments, severally, are cast
in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation, to declare
the said amendment, or amendments, severally, having received said majority of votes to have
been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in
effect as a part of the Constitution from the date of such proclamation. When two or more
amendments
390

shall be submitted in the manner aforesaid to the voters of this state at the same election, they
shall be so submitted that each amendment shall be voted on separately. No convention shall be
called to amend or propose amendments to this Constitution, or to propose a new Constitution,
unless the law providing for such convention shall first be approved by the people on a
referendum vote at a regular general election. This article shall not be construed to impair the
right of the people to amend this Constitution by vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution
granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this
Constitution may be proposed in either house of the Legislative Assembly and, if the proposed
revision is agreed to by at least two-thirds of all the members of each house, the proposed revision
shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary
of State to the people for their approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when the Legislative
Assembly orders a special election for that purpose. A proposed revision may deal with more than
one subject and shall be voted upon as one question. The votes for and against the proposed
revision shall be canvassed by the Secretary of State in the presence of the Governor and, if it
appears to the Governor that the majority of the votes cast in the election on the proposed
revision are in favor of the proposed revision, he shall, promptly following the canvass, declare,
by his proclamation, that the proposed revision has received a majority of votes and has been
adopted by the people as the Constitution of the State of Oregon, as the case may be.
The revision shall be in effect as the Constitution or as a part of this Constitution from the date of
such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution
may be proposed in either house of the Legislature, and if two-thirds of all the members elected of
the two houses, shall vote
391
VOL. 50, MARCH 31, 1973 391

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 the two houses, voting separately, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be
the duty of the legislature to submit such amendment or amendments to the electors of the state
at the next general election, in at least one newspaper of general circulation, published in each
county, and if a majority of the electors shall ratify the same, such amendment or amendments
shall become a part of this constitution.
392


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 a law for calling the same;
and such convention shall consist of a number of members, not less than double that of the most
numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity
until it has been submitted to and adopted by the people.
——o0o——
_______________
@ 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.

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Javellana vs. The Executive Secretary, 50 SCRA 30, March 31, 1973

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2/5/2021 CentralBooks:Reader

No. L-36142. March 31, 1973.

32 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 33

Javellana vs. The Executive Secretary

34 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 35

Javellana vs. The Executive Secretary

36 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 37

Javellana vs. The Executive Secretary

38 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

Makalintal and Castro, JJ.:

VOL. 50, MARCH 31, 1973 39

Javellana vs. The Executive Secretary

40 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 41

Javellana vs. The Executive Secretary

albeit I held that nonetheless, the Constitution of 1973 is already in force.

42 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 43

Javellana vs. The Executive Secretary

44 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 45

Javellana vs. The Executive Secretary

Zaldivar, J., dissenting and concurring:

46 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 47

Javellana vs. The Executive Secretary

48 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 49

Javellana vs. The Executive Secretary

50 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 51

Javellana vs. The Executive Secretary

52 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 53

Javellana vs. The Executive Secretary

54 SUPREME COURT REPORTS

Javellana vs. The Executive Secretary

ORIGINAL PETITIONS in the Supreme Court. Mandamus and prohibition.

Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

VOL. 50, MARCH 31, 1973 55

56 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 57

58 SUPREME COURT REPORTS ANNOTATED