Republic of the Philippines G.R. No. L-36165 March 31, 1973.
SUPREME COURT
Manila
EN BANC
 
G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
NATIONAL DEFENSE, THE SECRETARY OF JUSTICE
AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO
ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA,
EMILIO DE PERALTA AND LORENZO M.
TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
FINANCE , THE SECRETARY OF JUSTICE, THE
SECRETARY OF LAND REFORM, THE SECRETARY OF
NATIONAL DEFENSE, THE AUDITOR GENERAL, THE
BUDGET COMMISSIONER, THE CHAIRMAN OF
PRESIDENTIAL COMMISSION ON REORGANIZATION,
THE TREASURER OF THE PHILIPPINES, THE
COMMISSION ON ELECTIONS AND THE COMMISSIONER
OF CIVIL SERVICE, respondents.
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; TANCIO E. CASTAÑEDA, in his capacity
as Secretary General Services; Senator GIL J. PUYAT, in
his capacity as President of the Senate; and Senator
JOSE ROY, his capacity, as President Pro Tempore of the
of the Senate, respondents.
G.R. No. 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 NATIONAL
TREASURER, respondents.
G.R. 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, THE
HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada and Associates for petitioners Vidal Tan,
et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas.
Gonzales and Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie
Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V.
Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose
Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor
Vicente V. Mendoza and Solicitor Reynato S. Puno for other
respondents.
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:
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 ... of such plebiscite, the
setting of guidelines for the conduct of the same,
the prescription of the ballots to be used and the
question to be answered by the voters, and the
appropriation of public funds for the purpose,
are, by the Constitution, lodged exclusively in
Congress ...," and "there is no proper
submission to the people of said Proposed
Constitution set for January 15, 1973, there
being no freedom of speech, press and
assembly, and there being no sufficient time to
inform the people of the contents thereof."
Substantially identical actions were filed, on
December 8, 1972, by Pablo C. Sanidad against
the Commission on Elections (Case G.R. No. L-
35929) on December 11, 1972, by Gerardo
Roxas, et al., against the Commission on
Elections, the Director of Printing, the National
Treasurer and the Auditor General (Case G.R.
L-35940), by Eddie B. Monteclaro against the
Commission on Elections and the Treasurer of
the Philippines (Case G.R. No. L-35941), and by
Sedfrey 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 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.]
"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?
[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.
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.
If the Citizens Assemblies approve
of the New Constitution, then the
new Constitution should be
deemed ratified.
This, we are afraid, and therefore allege, is
pregnant with ominous possibilities.
14. That, in the meantime, speaking on
television and over the radio, on January 7,
1973, the President announced that the limited
freedom of debate on the proposed Constitution
was being withdrawn and that the proclamation
of martial law and the orders and decrees issued
thereunder would thenceforth strictly be
enforced [Daily Express, January 8, 1973];
15. That petitioners have reason to fear, and
therefore state, that the question added in the
last list of questions to be asked to the Citizens
Assemblies, namely: —
Do
you
appro
ve of
the
New
Cons
titutio
n? —
in relation to the question following it: —
Do you
still
want a
plebisci
te to be
called
to ratify
the new
Constit
ution?"
—
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' 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 —
"... 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 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]
"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].
"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."
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
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"
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 ... without merit." Identical defenses
were set up in the other cases under
consideration.
Immediately after the hearing held on January
17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on
the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed
it best that each Member write his own views
thereon and that thereafter the Chief Justice
should state the result or the votes thus cast on
the points in issue. Hence, the individual views
of my brethren in the Court are set forth in the
 opinions attached hereto, except that, instead of
writing their separate opinions, some Members
have preferred to merely concur in the opinion of
one of our colleagues.
Then the writer of said decision expressed his own opinion on
the issues involved therein, after which he recapitulated the
views of the Members of the Court, as follows:
1. There is unanimity on the justiciable nature of
the issue on the legality of Presidential Decree
No. 73.
2. On the validity of the decree itself, Justices
Makalintal, Castro, Fernando, Teehankee,
Esguerra and myself, or six (6) Members of the
Court, are of the opinion that the issue has
become moot and academic, whereas Justices
Barredo, Makasiar and Antonio voted to uphold
the validity of said Decree.
3. On the authority of the 1971 Constitutional
Convention to pass the proposed Constitution or
to incorporate therein the provisions contested
by the petitioners in L-35948, Justices
Makalintal, Castro, Teehankee and Esguerra
opine that the issue has become moot and
academic. Justices Fernando, Barredo,
Makasiar, Antonio and myself have voted to
uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the
view that the 1971 Constitutional Convention
had authority to continue in the performance of
its functions despite the proclamation of Martial
Law. In effect, Justices Barredo, Makasiar and
Antonio hold the same view.
5. On the question whether the proclamation of
Martial Law affected the proper submission of
the proposed Constitution to a plebiscite, insofar
as the freedom essential therefor is concerned,
Justice Fernando is of the opinion that there is a
repugnancy between the election contemplated
under Art. XV of the 1935 Constitution and the
existence of Martial Law, and would, therefore,
grant the petitions were they not moot and
academic. Justices Barredo, Antonio and
Esguerra are of the opinion that issue involves
questions of fact which cannot be
predetermined, and that Martial Law per se does
not necessarily preclude the factual possibility of
adequate freedom, for the purposes
contemplated.
6. On Presidential Proclamation No. 1102, the
following views were expressed:
a. Justices Makalintal, Castro,
Fernando, Teehankee, Makasiar,
Esguerra and myself are of the
opinion that the question of validity
of said Proclamation has not been
properly raised before the Court,
which, accordingly, should not
pass upon such question.
b. Justice Barredo holds that the
issue on the constitutionality of
Proclamation No. 1102 has been
submitted to and should be
determined by the Court, and that
the "purported ratification of the
Proposed Constitution ... based on
the referendum among Citizens'
Assemblies falls short of being in
strict conformity with the
requirements of Article XV of the
1935 Constitution," but that such
unfortunate drawback
notwithstanding, "considering all
other related relevant
circumstances, ... the new
Constitution is legally recognizable
and should be recognized as
legitimately in force."
c. Justice Zaldivar maintains
unqualifiedly that the Proposed
Constitution has not been ratified
in accordance with Article XV of
the 1935 Constitution, and that,
accordingly, it has no force and
effect whatsoever.
d. Justice Antonio feels "that the
Court is not competent to act" on
the issue whether the Proposed
Constitution has been ratified by
the people or not, "in the absence
of any judicially discoverable and
manageable standards," since the
issue "poses a question of fact.
7. On the question whether or not these cases
should be dismissed, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and
Esguerra voted in the affirmative, for the
reasons set forth in their respective opinions.
Justices Fernando, Teehankee, and the writer
similarly voted, except as regards Case No. 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 member3 dissenting, as regards all of the cases
dismissed the same, without special pronouncement as to
costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed
Case G.R. No. 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 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 Service4 on February 3, 1973, by Eddie
Monteclaro, personally and as President of the National Press
Club of the Philippines, against the Executive Secretary, the
Secretary of Public Information, the Auditor General, the
Budget Commissioner and the National Treasurer 5 and on
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan,
Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against
the Executive Secretary, the Secretary of National Defense,
the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio
Padilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon V.
Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected
Senator and Minority Floor Leader of the Senate," and others
as "duly elected members" thereof, filed Case G.R. No. 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 petitioners 8 would
expire on December 31, 1975, and that of the others 9 on
December 31, 1977; that pursuant to our 1935 Constitution,
"which is still in force Congress of the Philippines "must
convene for its 8th Session on Monday, January 22, 1973, at
10:00 A.M., which is regular customary hour of its opening
session"; that "on said day, from 10:00 A.M. up to the
afternoon," said petitioner "along with their other colleagues,
were unlawfully prevented from using the Senate Session
Hall, the same having been closed by the authorities in
physical possession and control the Legislative Building"; that
"(a)t about 5:00 to 6:00 P.M. the said day, the premises of the
entire Legislative Building were ordered cleared by the same
authorities, and no one was allowed to enter and have access
to said premises"; that "(r)espondent Senate President Gil J.
Puyat and, in his absence, respondent President Pro
Tempore Jose Roy we asked by petitioning Senators to
perform their duties under the law and the Rules of the
Senate, but unlawfully refrained and continue to refrain from
doing so"; that the petitioners ready and willing to perform
their duties as duly elected members of the Senate of the
Philippines," but respondent Secretary of National Defense,
Executive Secretary and Chief of Staff, "through their agents
and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the
Philippines"; that "the Senate premise in the Congress of the
Philippines Building ... are occupied by and are under the
physical control of the elements military organizations under
the direction of said respondents"; that, as per "official reports,
the Department of General Services ... is now the civilian
agency in custody of the premises of the Legislative Building";
that respondents "have unlawfully excluded and prevented,
and continue to so exclude and prevent" the petitioners "from
the performance of their sworn duties, invoking the alleged
approval of the 1972 (1973) Constitution of the Philippines by
action of the 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 ... can not have superseded and
revoked the 1935 Constitution," for the reasons specified in
the petition as amended; that, by acting as they did, the
respondents and their "agents, representatives and
subordinates ...have excluded the petitioners from an office to
which" they "are lawfully entitled"; that "respondents Gil J.
Puyat and Jose Roy have unlawfully refrained from convening
the Senate for its 8th session, assuming general jurisdiction
over the Session Hall and the premises of the Senate and ...
continue such inaction up to this time and ... a writ
of mandamus is warranted in order to compel them to comply
with the duties and functions specifically enjoined by law"; and
that "against the above mentioned unlawful acts of the
respondents, the petitioners have no appeal nor other speedy
and adequate remedy in the ordinary course of law except by
invoking the equitable remedies of mandamus and prohibition
with the provisional remedy of preliminary mandatory
injunction."
Premised upon the foregoing allegations, said petitioners
prayed that, "pending hearing on the merits, a writ of
preliminary mandatory injunction be issued ordering
respondents Executive Secretary, the Secretary of National
Defense, the Chief of Staff of the Armed Forces of the
Philippines, and the ... Secretary of General Service, as well
as all their agents, representatives and subordinates to vacate
the premises of the Senate of the Philippines and to deliver
physical possession of the same to the President of the
Senate or his authorized representative"; and that hearing,
judgment be rendered declaring null and Proclamation No.
1102 ... and any order, decree, proclamation having the same
import and objective, issuing writs of prohibition
and mandamus, as prayed for against 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 submiss of the proposed
constitution," the "procedure for ratification adopted ... through
the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is
without jurisdiction to act on these petitions"; 2) the questions
raised therein are "political in character and therefore
nonjusticiable"; 3) "there substantial compliance with Article
XV of the 1 Constitution"; 4) "(t)he Constitution was properly
submitted the people in a free, orderly and honest election; 5)
"Proclamation No. 1102, certifying the results of the election,
is conclusive upon the courts"; and 6) "(t)he amending
process outlined in Article XV of the 1935 Constitution is not
exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. 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 ...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-
36283 10 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
the understanding that said notes shall include his reply to the
notes already filed by the petitioners in G.R. Nos. L-36164 a
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 ..."; that Mr. Justice Antonio did not feel "that this Court
competent to act" in said cases "in the absence of any
judicially discoverable and manageable standards" and
because "the access to relevant information is insufficient to
assure the correct determination of the issue," apart from the
circumstance that "the new constitution has been promulgated
and great interests have already arisen under it" and that the
political organ of the Government has recognized its
provisions; whereas, Mr. Justice Esguerra had postulated that
"(w)ithout any competent evidence ... about the circumstances
attending the holding" of the "referendum or plebiscite" thru
the Citizens' Assemblies, he "cannot say that it was not
lawfully held" and that, accordingly, he assumed "that what
the proclamation (No. 1102) says on its face is true and until
overcome by satisfactory evidence" he could not "subscribe to
the claim that such plebiscite was not held accordingly"; and
that he accepted "as a fait accompli that the Constitution
adopted (by the 1971 Constitutional Convention) on
November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on
to say that, under these circumstances, "it seems remote or
improbable that the necessary eight (8) votes under the 1935
Constitution, and much less the ten (10) votes required by the
1972 (1973) Constitution, can be obtained for the relief sought
in the Amended Petition" in G.R. No.
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.
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:
... 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
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. It is well settled that the matter of ratification of
an amendment to the Constitution should be settled
by applying the provisions of the Constitution in force at the
time of the alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102
partake of the nature of a political, and, hence, non-justiciable
question?
The Solicitor General maintains in his comment the affirmative
view and this is his main defense. In support thereof, he
alleges that "petitioners would have this Court declare as
invalid the New Constitution of the Republic" from which — he
claims — "this Court now derives its authority"; that "nearly 15
million of our body politic from the age of 15 years have
mandated this Constitution to be the New Constitution and the
prospect of unsettling acts done in reliance on it caution
against interposition of the power of judicial review"; that "in
the case of the New Constitution, the government has been
recognized in accordance with the New Constitution"; that "the
country's foreign relations are now being conducted in
accordance with the new charter"; that "foreign governments
have taken note of it"; that the "plebiscite cases" are "not
precedents for holding questions regarding proposal and
ratification justiciable"; and that "to abstain from judgment on
the ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked
to "declare" the new Constitution invalid. What petitioners
dispute is the theory that it has been validly ratified by the
people, especially that they have done so in accordance with
Article XV of the 1935 Constitution. The petitioners maintain
that the conclusion reached by the Chief Executive in the
dispositive portion of Proclamation No. 1102 is not borne out
by the whereases preceding the same, as the predicates from
which said conclusion was drawn; that the plebiscite or
"election" required in said Article XV has not been held; that
the Chief Executive has no authority, under the 1935
Constitution, to dispense with said election or plebiscite; that
the proceedings before the Citizens' Assemblies did not
constitute and may not be considered as such plebiscite; that
the facts of record abundantly show that the aforementioned
Assemblies could not have been held throughout the
Philippines from January 10 to January 15, 1973; and that, in
any event, the proceedings in said Assemblies are null and
void as an alleged ratification of the new Constitution
proposed by the 1971 Constitutional Convention, not only
because of the circumstances under which said Assemblies
had been created and held, but, also, because persons
disqualified to vote under Article V of the Constitution were
allowed to participate therein, because the provisions of our
Election Code were not observed in said Assemblies,
because the same were not held under the supervision of the
Commission on Elections, in violation of section 2 of Article X
of the 1935 Constitution, and because the existence of Martial
Law and General Order No. 20, withdrawing or suspending
the limited freedom to discuss the merits and demerits of said
proposed Constitution, impaired the people's freedom in
voting thereon, particularly a viva voce, as it was done in
many instances, as well as their ability to have a reasonable
knowledge of the contents of the document on which they
were allegedly called upon to express their views.
Referring now more specifically to the issue on whether the
new Constitution proposed by the 1971 Constitutional
Convention has been ratified in accordance with the
provisions of Article XV of the 1935 Constitution is a political
question or not, I do not hesitate to state that the answer must
be in the negative. Indeed, such is the position taken by this
Court, 17 in an endless line of decisions, too long to leave any
room for possible doubt that said issue is inherently and
essentially justiciable. Such, also, has been the consistent
position of the courts of the United States of America, whose
decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned
after that of the United States. Besides, no plausible reason
has, to my mind, been advanced to warrant a departure from
said position, consistently with the form of government
established under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We
rejected the theory of the respondents therein that the
question whether Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, for the ratification
or rejection of the proposed new Constitution, was valid or
not, was not a proper subject of judicial inquiry because, they
claimed, it partook of a political nature, and
We unanimously declared that the issue was
a justiciable one. With identical unanimity, We overruled the
respondents' contention in the 1971 habeas
corpus cases, 19 questioning Our authority to determine the
constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ
of habeas corpus on August 21, 1971, despite the opposite
view taken by this Court in Barcelona v.
Baker 20 and Montenegro v. Castañeda, 21 insofar as it
adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We
did not apply and expressly modified, in Gonzales v.
Commission on Elections, 22 the 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 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 Appointments — may approve or disapprove
some appointments made by the President. It, also, has the
power of appropriation, to "define, prescribe, and apportion
the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power
vested by the Constitution, the "Supreme Court and ... such
inferior courts as may be established by law," may settle or
decide with finality, not only justiciable controversies between
private individuals or entities, but, also, disputes or conflicts
between a private individual or entity, on the one hand, and an
officer or branch of the government, on the other, or between
two (2) officers or branches of service, when the latter officer
or branch is charged with acting without jurisdiction or in
excess thereof or in violation of law. And so, when a power
vested in said officer or branch of the government
is absolute or unqualified, the acts in the exercise of such
power are said to be political in nature, and, consequently,
non-justiciable or beyond judicial review. Otherwise, courts of
justice would be arrogating upon themselves a power
conferred by the Constitution upon another branch of the
service to the exclusion of the others. Hence, in Tañada v.
Cuenco, 26 this Court quoted with approval from In re
McConaughy, 27 the following:
"At the threshold of the case we are met with the
assertion that the questions involved are
political, and not judicial. If this is correct, the
court has no jurisdiction as the certificate of the
state canvassing board would then be final,
regardless of the actual vote upon the
amendment. The question thus raised is a
fundamental one; but it has been so often
decided contrary to the view contended for by
the Attorney General that it would seem to be
finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that
a question is political, and not judicial, is that it
is a matter which is to be exercised by the
people in their primary political capacity, or that
it has been specifically delegated to some other
department or particular officer of the
government, with discretionary power to act.
See State vs. Cunningham, 81 Wis. 497, N.W.
724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32
Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills,
69 Fed. 852, 16 C.C.A. 516, 30 L.R.A.
90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683,
25 L.R.A. 143, 42 Am. St. Rep. 220. Thus
the Legislature may in its discretion determine
whether it will pass law or submit a proposed
constitutional amendment to the people. The
courts have no judicial control over such
matters, not merely because they involve
political questions, but because they are matters
which the people have by the Constitution
delegated to the Legislature. The Governor may
exercise the powers delegated him, free from
judicial control, so long as he observes the laws
act within the limits of the power conferred.
His discretionary acts cannot be controllable, not
primarily because they are of a politics nature,
but because the Constitution and laws have
placed the particular matter under his
control. But every officer under constitutional
government must act accordingly to law and
subject its restrictions, and every departure
therefrom or disregard thereof must subject him
to that restraining and controlling power of the
people, acting through the agency of the
judiciary; for it must be remembered that the
people act through courts, as well as through
the executive or the Legislature. One
department is just as representative as the
other, and the judiciary is the department which
is charged with the special duty of determining
the limitations which the law places upon all
official action. The recognition of this principle,
unknown except in Great Britain and America, is
necessary, to "the end that the government may
be one of laws and not of men" — words which
Webster said were the greatest contained in any
written constitutional document." (Emphasis
supplied.)
and, in an attempt to describe the nature of a political question
in terms, it was hoped, understandable to the laymen, We
added that "... the term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a
question of policy" in matters concerning the government of a
State, as a body politic. "In other words, in the language of
Corpus Juris Secundum (supra), it refers to "those questions
which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature
or executive branch of the government." It is concerned with
issues dependent upon the wisdom, not legality, of a
particular measure."
Accordingly, when the grant of power is qualified, conditional
or subject to limitations, the issue on whether or not the
prescribed qualifications or conditions have been met, or the
limitations respected, is justiciable or non-political, the crux of
the problem being one of legality or validity of the contested
act, not its wisdom. Otherwise, said qualifications, conditions
or limitations — particularly those prescribed or imposed by
the Constitution — would be set at naught. What is more, the
judicial inquiry into such issue and the settlement thereof are
the main functions of courts of justice under the Presidential
form of government adopted in our 1935 Constitution, and the
system of checks and balances, one of its basic predicates.
As a consequence, We have neither the authority nor the
discretion to decline passing upon said issue, but are under
the ineluctable obligation — made particularly more exacting
and peremptory by our oath, as members of the highest Court
of the land, to support and defend the Constitution — to settle
it. This explains why, in Miller v. Johnson, 28 it was held that
courts have a "duty, rather than a power", to determine
whether another branch of the government has "kept within
constitutional limits." Not satisfied with this postulate, the court
went farther and stressed that, if the Constitution provides
how it may be amended — as it is in our 1935 Constitution —
"then, unless the manner is followed, the judiciary as the
interpreter of that constitution, will declare the amendment
invalid." 29 In fact, this very Court — speaking through Justice
Laurel, an outstanding authority on Philippine Constitutional
Law, as well as one of the highly respected and foremost
leaders of the Convention that drafted the 1935 Constitution
— declared, as early as July 15, 1936, that "(i)n times of
social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which
can be called upon to determine the proper allocation of
powers between the several departments" of the
government. 30
The Solicitor General has invoked Luther v. Borden 31 in
support of his stand that the issue under consideration is 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 was submitted to
the people. Upon the return of the votes cast by them, the
convention declared that said Constitution had been adopted
and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large
number of citizens of the state, contested, however, the
validity of said proceedings. This notwithstanding, one
Thomas W. Dorr, who had been elected governor under the
new Constitution of the rebels, prepared to assert authority by
force of arms, and many citizens assembled to support him.
Thereupon, the charter government passed an Act declaring
the state under Martial Law and adopted measures to repel
the threatened attack and subdue the rebels. This was the
state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther,
for engaging in the support of the rebel government — which
was never able to exercise any authority in the state — broke
into his house.
Meanwhile, the charter government had taken measures to
call its own convention to revise the existing form of
government. Eventually, a new constitution was drafted by a
convention held under the authority of the charter
government, and thereafter was adopted and ratified by the
people. "(T)he times and places at which the votes were to be
given, the persons who were to receive and return them, and
the qualifications of the voters having all been previously
authorized and provided for by law passed by the charter
government," the latter formally surrendered all of its powers
to the new government, established under its authority, in May
1843, which had been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a
military force, had made an unsuccessful attempt to take
possession of the state arsenal in Providence, but he was
repulsed, and, after an "assemblage of some hundreds of
armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the
old government, no further effort was made to establish" his
government. "... until the Constitution of 1843" — adopted
under the auspices of the charter government — "went into
operation, the charter government continued to assert its
authority and exercise its powers and to enforce obedience
throughout the state ... ."
Having offered to introduce evidence to prove that the
constitution of the rebels had been ratified by the majority of
the people, which the Circuit Court rejected, apart from
rendering judgment for the defendants, the plaintiff took the
case for review to the Federal Supreme Court which affirmed
the action of the Circuit Court, stating:
It is worthy of remark, however, when we are
referring to the authority of State decisions, that
the trial of Thomas W. Dorr took place after the
constitution of 1843 went into operation. The
judges who decided that case held their
authority under that constitution and it is
admitted on all hands that it was adopted by the
people of the State, and is the lawful and
established government. It is the decision,
therefore, of a State court, whose judicial
authority to decide upon the constitution and
laws of Rhode Island is not questioned by either
party to this controversy, although the
government under which it acted was framed
and adopted under the sanction and laws of the
charter government.
The point, then, raised here has been already
decided by the courts of Rhode Island. The
question relates, altogether, to the constitution
and laws of that State, and the well settled rule
in this court is, that the courts of the United
States adopt and follow the decisions of the
State courts in questions which concern merely
the constitution and laws of the State.
Upon what ground could the Circuit Court of the
United States which tried this case have
departed from this rule, and disregarded and
overruled the decisions of the courts of Rhode
Island? Undoubtedly the courts of the United
States have certain powers under the
Constitution and laws of the United States which
do not belong to the State courts. But the power
of determining that a State government has
been lawfully established, which the courts of
the State disown and repudiate, is not one of
them. Upon such a question the courts of the
United States are bound to follow the decisions
of the State tribunals, and must therefore regard
the charter government as the lawful and
established government during the time of this
contest. 32
It is thus apparent that the context within which the case
of Luther v. Borden was decided is basically and
fundamentally different from that of the cases at bar. To begin
with, the case did not involve a federal question, but one
purely municipal in nature. Hence, the Federal Supreme Court
was "bound to follow the decisions of the State tribunals" of
Rhode Island upholding the constitution adopted under the
authority of the charter government. Whatever else was said
in that case constitutes, therefore, an obiter dictum. Besides,
no decision analogous to that rendered by the State Court of
Rhode Island exists in the cases at bar. Secondly, the states
of the Union have a measure of internal sovereignty upon
which the Federal Government may not encroach, whereas
ours is a unitary form of government, under which our local
governments derive their authority from the national
government. Again, unlike our 1935 Constitution, the charter
or organic law of Rhode Island contained no provision on the
manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the
question of recognition of government, than on recognition
of constitution, and there is a fundamental difference between
these two (2) types of recognition, the first being generally
conceded to be a political question, whereas the nature of the
latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner
prescribed in the Constitution in force at the time of the
purported ratification of the former, which
is essentially a justiciable question. There was, in Luther v.
Borden, a conflict between two (2) rival governments,
antagonistic to each other, which is absent in the present
cases. Here, the Government established under the 1935
Constitution is the very same government whose Executive
Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention
and now alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court
in Luther v. Borden, decided in 1849, on matters other than
those referring to its power to review decisions of a state court
concerning the constitution and government of that state, not
the Federal Constitution or Government, are manifestly
neither, controlling, nor even persuasive in the present cases,
having as the Federal Supreme Court admitted — no authority
whatsoever to pass upon such matters or to review decisions
of said state court thereon. In fact, referring to that case, the
Supreme Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is
always cited by those who assert that the courts
have no power to determine questions of a
political character. It is interesting historically,
but it has not the slightest application to the case
at bar. When carefully analyzed, it appears that
it merely determines that the federal courts will
accept as final and controlling a decision of the
highest court of a state upon a question of the
construction of the Constitution of the
state. ... . 33
Baker v. Carr, 34 cited by respondents, involved an action to
annul a Tennessee statute apportioning the seats in the
General Assembly among the counties of the State, upon the
theory that the legislation violated the equal protection clause.
A district court dismissed the case upon the ground, among
others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the
Federal Supreme Court reversed the appealed decision and
held that said issue was justiciable and non-political,
inasmuch as:"... (d)eciding whether a matter has in any
measure been committed by the Constitution
to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is
itself a delicate exercise in constitutional interpretation, and is
a responsibility of this Court as ultimate interpreter of the
Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court,
speaking through then Chief Justice Warren, reversed a
decision of the Court of Appeals of New York affirming that of
a Federal District Court, dismissing Powell's action for a
declaratory judgment declaring thereunder that he — whose
qualifications were uncontested — had been unlawfully
excluded from the 90th Congress of the U.S. Said dismissal
was predicated upon the ground, inter alia, that the issue was
political, but the Federal Supreme Court held that it was
clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review
of American jurisprudence on the matter. Owing to the lucidity
of its appraisal thereof, We append the same to this opinion
as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the
Court concluded:
The authorities are thus practically uniform in
holding that whether a constitutional amendment
has been properly adopted according to the
requirements of an existing Constitution is a
judicial question. There can be little doubt that
the consensus of judicial opinion is to the effect
that it is the absolute duty of the judiciary to
determine whether the Constitution has been
amended in the manner required by the
Constitution, unless a special tribunal has been
created to determine the question; and even
then many of the courts hold that the tribunal
cannot be permitted to illegally amend the
organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of
our 1935 Constitution prescribes the method or procedure for
its amendment, it is clear to my mind that the question
whether or not the revised Constitution drafted by the 1971
Constitutional Convention has been ratified in accordance
with said Art. XV is a justiciable one and 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
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; 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 ... 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 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,
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 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 the Constitutional Convention that drafted the 1935
Constitution. Indeed, section 1 of Art. V of the 1935
Constitution was largely based on the report of the committee
on suffrage of the Convention that drafted said Constitution
which report was, in turn, "strongly influenced by the election
laws then in force in the Philippines ... ." 40 " Said committee
had recommended: 1) "That the right of suffrage should
exercised only by male citizens of the Philippines." 2) "That
should be limited to those who could read and write." 3) "That
the duty to vote should be made obligatory." It appears that
the first recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was
eventually agreed to include, in section 1 of Art. V of the
Constitution, the second sentence thereof imposing upon the
National Assembly established by the original Constitution —
instead of the bicameral Congress subsequently created by
amendment said Constitution — the duty to "extend the right
of suffrage women, if in a plebiscite to, be held for that
purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote
affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also
debated upon rather extensively, after which it was rejected
by the Convention. 42 This accounts, in my opinion, for the
permissive language used in the first sentence of said Art. V.
Despite some debates on the age qualification — amendment
having been proposed to reduce the same to 18 or 20, which
were rejected, and the residence qualification, as well as the
disqualifications to the exercise of the right of suffrage — the
second recommendation limiting the right of suffrage to those
who could "read and write" was — in the language of Dr. Jose
M. Aruego, one of the Delegates to said Convention —
"readily approved in the Convention without any dissenting
vote," although there was some debate on whether the
Fundamental Law should specify the language or dialect that
the voter could read and write, which was decided in the
negative. 43
What is relevant to the issue before Us is the fact that the
constitutional provision under consideration was meant to be
and is a grant or conferment of a right to persons possessing
the qualifications and none of the disqualifications therein
mentioned, which in turn, constitute a limitation of
or restriction to said right, and cannot, accordingly, be
dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a
right is necessarily a negation of the authority of Congress or
of any other branch of the Government to deny said right to
the subject of the grant — and, in this sense only, may the
same partake of the nature of a guarantee. But, this does not
imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the
qualifications and having the disqualifications mentioned in
the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on
suffrage responsible for the adoption of section 1 of Art. V of
the Constitution was "strongly influenced by the election laws
then in force in the Philippines." Our first Election Law was Act
1582, passed on January 9, 1907, which was partly amended
by Acts 1669, 1709, 1726 and 1768, and incorporated into the
Administrative Code of 1916 — Act 2657 — as chapter 20
thereof, and then in the Administrative Code of 1917 — Act
2711 — as chapter 18 thereof, which, in turn, was amended
by Act 3387, approved on December 3, 1927. Sections 431
and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted
below. 44 In all of these legislative acts, the provisions
concerning the qualifications of voters partook of the nature of
a grant or recognition of the right of suffrage, and, hence, of
a denial thereof to those who lacked the requisite qualification
and possessed any of the statutory disqualifications. In short,
the history of section 1, Art. V of the Constitution, shows
beyond doubt than the same conferred — not guaranteed —
the authority to persons having the qualifications prescribed
therein and none of disqualifications to be specified in
ordinary laws and, necessary implication, denied such right to
those lacking any said qualifications, or having any of the
aforementioned disqualifications.
This view is further bolstered by the fact that the 1971
Constitutional Convention sought the submission to a
plebiscite of a "partial amendment" to said section 1 of Art. V
of the 1935 Constitution, by reducing the voting age from
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 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 ..." — 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 a plebiscite, lesser qualifications than those
prescribed in dealing with ordinary measures for which such
plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935
Constitution intended section 1 of Art. V thereof to
apply only to elections of public officers, not to plebiscites for
the ratification of amendments to the Fundamental Law or
revision thereof, or of an entirely new Constitution, and permit
the legislature to require lesser qualifications for such
ratification, notwithstanding the fact that the object thereof
much more important — if not fundamental, such as the basic
changes introduced in the draft of the revised Constitution
adopted by the 1971 Constitutional Convention, which a
intended to be in force permanently, or, at least, for many
decades, and to affect the way of life of the nation — and,
accordingly, demands greater experience and maturity on the
part of the electorate than that required for the election of
public officers, 49 whose average term ranges from 2 to 6
years.
It is admitted that persons 15 years of age or over, but below
21 years, regardless of whether or not they possessed the
other qualifications laid down in both the Constitution and the
present Election Code, 50 and of whether or not they are
disqualified under the provisions of said Constitution and
Code, 51 or those of Republic Act No. 3590, 52 have
participated and voted in the Citizens' Assemblies that have
allegedly ratified the new or revised Constitution drafted by
the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of
registered voters 21 years of age or over in the entire
Philippines, available in January 1973, was less than 12
million. Yet, Proclamation No. 1102 states that 14,976,56
"members of all the Barangays (Citizens Assemblies) voted
for the adoption of the proposed Constitution, as against ...
743,869 who voted for its rejection," whereas, on the question
whether or not the people still wanted a plebiscite to be called
to ratify the new Constitution, "... 14,298,814 answered that
there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite." In other words, it is conceded that the
number of people who allegedly voted at the Citizens'
Assemblies for exceeded the number of registered
voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens'
Assemblies — and We have more to say on this point in
subsequent pages — were fundamentally irregular, in that
persons lacking the qualifications prescribed in section 1 of
Art. V of the Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid
votes of those less than 21 years of age can be separated or
segregated from those of the qualified voters, the proceedings
in the Citizens' Assemblies must be considered null and
void. 53
It has been held that "(t)he power to reject
an entire poll ... should be exercised ... in a case where it
is impossible to ascertain with reasonable certainty the true
vote," as where "it is impossible to separate the legal votes
from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact
description and dependent mainly on the factual
milieu of the particular controversy, have the
effect of destroying the integrity and authenticity
of disputed election returns and of avoiding
their prima facie value and character. If
satisfactorily proven, although in a summary
proceeding, such circumstances as alleged by
the affected or interested parties, stamp the
election returns with the indelible mark of falsity
and irregularity, and, consequently, of
unreliability, and justify their exclusion from the
canvass.
Then, too, the 1935 Constitution requires "a majority of the
votes cast" for a proposed amendment to the Fundamental
Law to be "valid" as part thereof, and the term "votes cast"
has a well-settled meaning.
 The term "votes cast" ... was held in Smith v.
Renville County Commissioners, 65 N.W. 956,
64 Minn. 16, to have been used as an equivalent
of "ballots cast." 56
The word "cast" is defined as
"to deposit formally or officially." 57
It seems to us that a vote is cast when
a ballot is deposited indicating a "choice." ... The
word "cast" means "deposit (a ballot) formally or
officially ... .
... In simple words, we would define a "vote
cast" as the exercise on a ballot of the choice of
the voter on the measure proposed. 58
In short, said Art. XV envisages — with the term "votes cast"
— choices made on ballots — not orally or by raising — by
the persons taking part in plebiscites. This is but natural and
logical, for, since the early years of the American regime, we
had adopted the Australian Ballot System, with its major
characteristics, namely, uniform official ballots prepared and
furnished by the Government and secrecy in the voting, with
the advantage of keeping records that permit judicial inquiry,
when necessary, into the accuracy of the election returns. And
the 1935 Constitution has been consistently interpreted
in all plebiscites for the ratification rejection of proposed
amendments thereto, from 1935 to 1967. Hence, the viva
voce voting in the Citizens' Assemblies was and is null and
void ab initio.
b. How should the plebiscite be held? (COMELEC supervision
indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19
Constitution is that of Art. X thereof, particularly its sections 1
and 2. Indeed, section 1 provides that "(t)here shall be
an independent Commission on Elections ... ." The point to be
stressed here is the term "independent." Indeed, why was the
term used?
In the absence of said constitutional provision as to the
independence of the Commission, would it have been
depends upon either Congress or the Judiciary? The answer
must be the negative, because the functions of the
Commission — "enforcement and administration" of election
laws — are neither legislative nor judicial in nature, and,
hence, beyond the field allocated to either Congress or courts
of justice. Said functions are by their nature
essentially executive, for which reason, the Commission
would be under the "control" of the President, pursuant to
section 10, paragraph (1) of Art. VII of the Constitution, if Art.
X thereof did not explicitly declare that it (the Commission) is
an "independent" body. In other words, in amending the
original 1935 Constitution, by inserting therein said Art. X, on
the Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation
of the Commission on Elections as a constitutional organ,
election laws in the Philippines were enforced by the then
Department of the Interior, through its Executive Bureau, one
of the offices under the supervision and control of said
Department. The same — like other departments of the
Executive Branch of the Government — was, in turn, under
the control of the Chief Executive, before the adoption of the
1935 Constitution, and had been — until the abolition of said
Department, sometime ago — under the control of the
President of the Philippines, since the effectivity of said
Fundamental Law. Under the provisions thereof, the
Executive could so use his power of control over the
Department of the Interior and its Executive Bureau as to
place the minority party at such a great, if not decisive,
disadvantage, as to deprive it, in effect, of the opportunity to
defeat the political party in power, and, hence, to enable the
same to perpetuate itself therein. To forestall this possibility,
the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a
constitutional body independent primarily of the President of
the Philippines.
The independence of the Commission was sought to be
strengthened by the long term of office of its members — nine
(9) years, except those first appointed 59 — the longest under
the Constitution, second only to that of the Auditor General 60;
by providing that they may not be removed from office except
by impeachment, placing them, in this respect, on the same
plane as the President, the 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" only 61; that "(n)o pardon, parole, or suspension
sentence for the violation of any election law may be granted
without the favorable recommendation of the Commission" 62;
and, that its chairman and members "shall not, during the
continuance in office, engage in the practice of any profession
or intervene, directly or indirectly, in the management or
control of any private enterprise which in anyway may affected
by the functions of their office; nor shall they, directly or
indirectly, be financially interested in any contract with the
Government or any subdivision or instrumentality
thereof." 63 Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible
protect and insure the independence of each member of the
Commission.
With respect to the functions thereof as a body, section 2 of
said Art. X ordains that "(t)he Commission on Elections shall
have exclusive charge of the enforcement and administration
all laws relative to the conduct of elections," apart from such
other "functions which may be conferred upon it by law." It
further provides that the Commission "shall decide, save
those involving the right to vote, all administrative question
affecting elections, including the determination of the number
and location of polling places, and the appointment of election
inspectors and of other election officials." And, to forests
possible conflicts or frictions between the Commission, on one
hand, and the other offices or agencies of the executive
department, on the other, said section 2 postulates that
"(a)ll law enforcement agencies and instrumentalities of the
Government, when so required by the Commission, shall act
as its deputies for the purpose of insuring free, orderly, and
honest elections." Not satisfied with this, it declares, in effect,
that "(t)he decisions, orders, and ruling of the Commission"
shall not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the
Constitution, Rep. Act No. 6388, otherwise known as the
Election Code of 1971, implements the constitutional powers
of the Commission on Elections and grants additional powers
thereto, some of which are enumerated in sections 5 and 6 of
said Act, quoted below. 64 Moreover, said Act contains, inter
alia, detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election precincts; the
designation and arrangement of polling places, including
voting booths, to protect the secrecy of the ballot; formation of
lists of voters, the identification and registration of voters, the
proceedings therefor, as well as for the inclusion in, or
exclusion or cancellation from said list and the publication
thereof; the establishment of municipal, provincial and files of
registered voters; the composition and appointment of board
of election inspectors; the particulars of the official ballots to
be used and the precautions to be taken to insure authenticity
thereof; the procedure for the casting of votes; the counting of
votes by boards of inspectors; the rules for the appreciation of
ballots and the preparation and disposition of election returns;
the constitution and operation of municipal, provincials and
national boards of canvassers; the presentation of the political
parties and/or their candidates in each election precinct; the
proclamation of the results, including, in the case of election of
public officers, election contests; and the jurisdiction of courts
of justice in cases of violation of the provisions of said Election
Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate
set of provisions aimed at "insuring free, orderly, and honest
election," as envisaged in section 2 of Art. X of the
Constitution. Yet, none of the foregoing constitutional and
statutory provisions was followed by the so-called Barangays
or Citizens' Assemblies. And no reasons have been given, or
even sought to be given therefor. In many, if not most,
instances, the election were held a viva voce, thus depriving
the electorate of the right to vote secretly — one of the most,
fundamental and critical features of our election laws from
time immemorial — particularly at a time when the same was
of utmost importance, owing to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes,
openly, without complying with the requirements of the law
pertinent thereto, it was held that the "election officers"
involved "cannot be too strongly condemned" therefor and
that if they "could legally dispense with such requirement ...
they could with equal propriety dispense with all of
them, including the one that the vote shall be by secret ballot,
or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of
the proposed Constitution drafted by the 1971 Constitutional
Convention, or on December 1, 1972, Presidential Decree No.
73 (on the validity of which — which was contested in the
plebiscite cases, as well as in the 1972 habeas
corpus cases 66 — We need not, in the case of bar, express
any opinion) was issued, calling a plebiscite, to be held on
January 15, 1973, at which the proposed Constitution would
be submitted to the people for ratification or rejection;
directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code
of 1971, insofar as they are not inconsistent" with said decree
— excepting those "regarding right and obligations of political
parties and candidates" — "shall apply to the conduct of the
plebiscite." Indeed, section 2 of said Election Code of 1971
provides that "(a)ll elections of public officers except barrio
officials and plebiscites shall be conducted in the manner
provided by this Code." General Order No. 20, dated January
7, 1973, postponing until further notice, "the plebiscite
scheduled to be held on January 15, 1973," said nothing
about the procedure to be followed in plebiscite to take place
at such notice, and no other order or decree has been brought
to Our attention, expressly or impliedly repealing the
provisions of Presidential Decree 73, insofar as said
procedure is concerned.
Upon the other hand, said General Order No. 20 expressly
suspended "the provisions of Section 3 of Presidential Decree
No. 73 insofar as they allow free public discussion of
proposed Constitution ... temporarily suspending effects of
Proclamation No. 1081 for the purposes of free open dabate
on the proposed Constitution ... ." This specific mention of the
portions of the decrees or orders or instructions suspended by
General Order No. 20 necessarily implies that all other
portions of said decrees, orders or instructions — and, hence,
the provisions of Presidential Decree No. 73 outlining the
procedure to be followed in the plebiscite for ratification or
rejection of the proposed Constitution — remained in force,
assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A —
the text of which is quoted below 67 — the Executive
declared, inter alia, that the collective views expressed in the
Citizens' Assemblies "shall be considered in the formulation of
national policies or programs and, wherever practicable, shall
be translated into concrete and specific decision"; that such
Citizens' Assemblies "shall consider vital national issues ...
like the holding of the plebiscite on the new Constitution ...
and others in the future, which shall serve as guide or basis
for action or decision by the national government"; and that
the Citizens' Assemblies "shall conduct between January 10
and 15, 1973, a referendum on important national issues,
including those specified in paragraph 2 hereof, and submit
the results thereof to the Department of Local Governments
and Community Development immediately thereafter, ... ." As
in Presidential Decree No. 86, this Decree No. 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
No. 73. What is more, they were held under the supervision of
the very officers and agencies of the Executive Department
sought to be excluded therefrom by Art. X of the 1935
Constitution. Worse still, said officers and agencies of the
1935 Constitution would be favored thereby, owing to the
practical indefinite extension of their respective terms of office
in consequence of section 9 of the Transitory Provisions,
found in Art. XVII of the proposed Constitution, without any
elections therefor. And the procedure therein mostly followed
is such that there is no reasonable means of checking the
accuracy of the returns files by the officers who conducted
said plebiscites. This is another patent violation of Art. of the
Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme
set forth in the 1935 Constitution, as amended, to insure the
"free, orderly, and honest" expression of the people's will, the
aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens'
Assemblies, insofar as the same are claimed to have ratified
the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal
definition of an election, as well as that which is usually and
ordinarily understood by the term, is a choosing or as election
by those having a right to participate (in the selection) of those
who shall fill the offices, or of the adoption or rejection of any
public measure affecting the territory involved. 15 Cyc.
279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders
v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216,
47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24
N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon
Proclamation No. 1102, the validity of which is precisely being
contested by petitioners herein. Respondents claim that said
proclamation is "conclusive" upon this Court, or is, at least,
entitled to full faith and credence, as an enrolled bill; that the
proposed Constitution has been, in fact, ratified, approved or
adopted by the "overwhelming" majority of the people; that
Art. XV of the 1935 Constitution has thus been "substancially"
complied with; and that the Court refrain from passing upon
the validity of Proclamation No. 1102, not only because such
question is political in nature, but, also, because should the
Court invalidate the proclamation, the former would, in effect,
veto the action of the people in whom sovereignty resides and
from its power are derived.
The major flaw in this process of rationalization is that it
assumes, as a fact, the very premise on which it is predicated,
and which, moreover, is contested by the petitioners. As the
Supreme Court of Minnessota has aptly put it —
... every officer under a constitutional
government must act according to law and
subject to its restrictions, and every
departure therefrom or disregard thereof must
subject him to the restraining and controlling of
the people, acting through the agency of the
judiciary; for it must be remembered that the
people act through courts, as well as through the
executive or the Legislature. One department is
just as representative as the other, and the
judiciary is the department which is charged with
the special duty of determining the limitations
which the law places upon all official action. ... .
Accordingly, the issue boils downs to whether or not the
Executive acted within the limits of his authority when he
certified in Proclamation No. 1102 "that the Constitution
proposed by the nineteen hundred and 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.
Franciso Cruz, as President or acting President of the
National Association or Federation, whereupon Mr. Cruz,
acting in a ceremonial capacity, reported said results
(tabulated by the Department of Governments and
Community Development) to the Chief Executive, who,
accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a
member of any barrio council since 1972, so that he could
possibly have been a member on January 17, 1973, of
a municipal association of presidents of barrio or ward
citizens' assemblies, much less of a Provincial, City or
National Association or Federation of Presidents of any such
provincial or city associations.
Secondly, at the conclusion of the hearing of these cases
February 16, 1973, and in the resolution of this Court of same
date, the Solicitor General was asked to submit, together with
his notes on his oral argument, a true copy of aforementioned
report of Mr. Cruz to the President and of "(p)roclamation,
decree, instruction, order, regulation or circular, if any,
creating or directing or authorizing creation, establishment or
organization" of said municipal, provincial and national
associations, but neither a copy of alleged report to the
President, nor a copy of any "(p)roclamation, decree,
instruction, order, regulation or circular," has been submitted
to this Court. In the absence of said report, "(p)roclamation,
decree, instruction," etc., Proclamation No. 1102 is devoid of
any factual and legal foundation. Hence, the conclusion set
forth in the dispositive portion of said Proclamation No. 1102,
to the effect that the proposed new or revised Constitution had
been ratified by majority of the votes cast by the people, can
not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is
clearly untenable. If it were, acts of the Executive and those of
Congress could not possibly be annulled or invalidated by
courts of justice. Yet, such is not the case. In fact, even a
resolution of Congress declaring that a given person has been
elected President or Vice-President of the Philippines as
provided in the Constitution, 69 is not conclusive upon the
courts. It is no more than prima facie evidence of what is
attested to by said resolution. 70 If assailed directly in
appropriate proceedings, such as an election protest, if and
when authorized by law, as it is in the Philippines, the Court
may receive evidence and declare, in accordance therewith,
who was duly elected to the office involved. 71 If prior to the
creation of the Presidential Electoral Tribunal, no such protest
could be filed, it was not because the resolution of Congress
declaring who had been elected President or 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 McConaughy 72 is squarely in point. "As the
Constitution stood from the organization of the state" — of
Minnessota — "all taxes were required to be raised under the
system known as the 'general property tax.' Dissatisfaction
with the results of this method and the development of more
scientific and satisfactory methods of raising revenue induced
the Legislature to submit to the people an amendment to the
Constitution which provided merely that taxes shall be uniform
upon the same class of subjects. This proposed amendment
was submitted at the general election held in November,
1906, and in due time it was certified by the state canvassing
board and proclaimed by the Governor as having been legally
adopted. Acting upon the assumption that the amendment
had become a part of the Constitution, the Legislature
enacted statutes providing for a State Tax Commission and a
mortgage registry tax, and the latter statute, upon the same
theory, was held constitutional" by said Court. "The district
court found that the amendment had no in fact been adopted,
and on this appeal" the Supreme Court was "required to
determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of
Canvassers created by the Legislature and of
the proclamation made by the Governor based thereon, the
Court held: "It will be noted that this board does no more than
tabulate the reports received from the various county board
and add up and certify the results. State v. Mason, 45 Wash.
234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that
the decisions of election officers, and canvassing boards
are not conclusive and that the final decision must rest with
the courts, unless the law declares that the decisions of the
board shall be final" — and there is no such law in the cases
at bar. "... The correctness of the conclusion of the state board
rests upon the correctness of the returns made by the county
boards and it is inconceivable that it was intended that this
statement of result should be final and conclusive regardless
of the actual facts. The proclamation of the Governor
adds nothing in the way of conclusiveness to the legal effect
of the action of the canvassing board. Its purpose is to
formally notify the people of the state of the result of the voting
as found by the canvassing board. James on Const. Conv.
(4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results
of the election made by the canvassing board, in order that
the true results could be judicially determined. And so did the
court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the
"exclusive" charge of the Commission on Elections, "the
enforcement and administration of all laws relative to the
conduct of elections," independently of the Executive,
and there is not even a certification by the Commission in
support of the alleged results of the citizens' assemblies relied
upon in Proclamation No. 1102 — apart from the fact that on
January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the
Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over
the Philippines — it follows necessarily that, from a
constitutional and legal viewpoint, Proclamation No. 1102
is not even prima facie evidence of the alleged ratification of
the proposed Constitution.
Referring particularly to the cases before Us, it will be noted
that, as pointed out in the discussion of the preceding topic,
the new or revised Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with
the provisions of the 1935 Constitution. In fact, it has not even
been, ratified in accordance with said proposed Constitution,
the minimum age requirement therein for the exercise of the
right of suffrage being eighteen (18) years, apart from the fact
that Art. VI of the proposed Constitution requires "secret"
voting, which was not observed in many, if not most, Citizens'
Assemblies. Besides, both the 1935 Constitution and the
proposed Constitution require a "majority of the votes cast" in
an election or plebiscite called for the ratification of an
amendment or revision of the first Constitution or the
effectivity of the proposed Constitution, and the phrase "votes
cast" has been construed to mean "votes made in writing not
orally, as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents
in L-36165, asserts openly that Art. XV of the Constitution has
not been complied with, and since the alleged substantial
compliance with the requirements thereof partakes of the
nature of a defense set up by the other respondents in these
cases, the burden of proving such defense — which, if true,
should be within their peculiar knowledge — is clearly on such
respondents. Accordingly, if despite the extensive notes and
documents submitted by the parties herein, the members of
the Court do not know or are not prepared to say whether or
not the majority of the people or of those who took part in the
Citizens' Assemblies have assented to the proposed
Constitution, the logical step would be to give due course to
these cases, require the respondents to file their answers, and
the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of
the issues raised thereby. Otherwise, we would be placing
upon the petitioners the burden of disproving a defense set up
by the respondents, who have not so far established the truth
of such defense.
Even more important, and decisive, than the foregoing is the
circumstance that there is ample reason to believe that many,
if not most, of the people did not know that the Citizens'
Assemblies were, at the time they were held, plebiscites for
the ratification or rejection of the proposed Constitution.
Hence, in Our decision in the plebiscite cases, We said, inter
alia:
Meanwhile, or on December 17, 1972, the
President had issued an order temporarily
suspending the effects of Proclamation No.
1081, for the purpose of free and open debate
on the Proposed Constitution. On December 23,
the President announced the postponement of
the plebiscite for the ratification or rejection of
the Proposed Constitution. No formal action to
this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that
the plebiscite scheduled to be held on January
15, 1973, be postponed until further notice."
Said General Order No. 20, moreover,
"suspended in the meantime" the "order of
 December 17, 1972, temporarily suspending the
effects of Proclamation No. 1081 for purposes of
free and open debate on the proposed
Constitution.
In view of these events relative to the
postponement of the aforementioned plebiscite,
the Court deemed it fit to refrain, for the time
being, from deciding the aforementioned cases,
for neither the date nor the conditions under
which said plebiscite would be held were known
or announced officially. Then again, Congress
was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on
January 22, 1973, and since the main objection
to Presidential Decree No. 73 was that the
President does not have the legislative authority
to call a plebiscite and appropriate funds
therefor, which Congress unquestionably could
do, particularly in view of the formal
postponement of the plebiscite by the President
— reportedly after consultation with, among
others, the leaders of Congress and the
Commission on Elections — the Court deemed
it more imperative to defer its final action on
these cases.
And, apparently, the parties in said cases entertained the
same belief, for, on December 23, 1972 — four (4) days after
the last hearing of said cases 76 — the President announced
the postponement of the plebiscite scheduled by Presidential
Decree No. 73 to be held on January 15, 1973, after
consultation with the Commission on Elections and the
leaders of Congress, owing to doubts on the sufficiency of the
time available to translate the proposed Constitution into
some local dialects and to comply with some 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?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold
sessions?
[4] Do you like the plebiscite to be held later?
 [5] Do you like the way President Marcos is
running the affairs of the government? [Bulletin
Today, January 10, 1973; emphasis an
additional question.]
[6] Do you approve of the citizens assemblies as
the base of popular government to decide issues
of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify
the new Constitution?
[9] Do you want the elections to be held in
November, 1973 in accordance with the
provisions of the 1935 Constitution?
[10] If the elections would not be held, when do
you want the next elections to be called?
[11] Do you want martial law to continue?
[Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are
not proper in a plebiscite for the ratification of a proposed
Constitution or of a proposed amendment thereto. Secondly,
neither is the language of question No. 7 — "Do you approve
the new Constitution?" One approves "of" the act of another
which does not need such approval for the effectivity of said
act, which the first person, however, finds to be good, wise
satisfactory. The approval of the majority of the votes cast in
plebiscite is, however, essential for an amendment to the
Constitution to be valid as part thereof. Thirdly, if the
proceedings in the Citizens' Assemblies constituted a
plebiscite question No. 8 would have been unnecessary and
improper, regardless of whether question No. 7 were
answered affirmatively or negatively. If the majority of the
answers to question No. 7 were in the affirmative, the
proposed Constitution would have become effective and no
other plebiscite could be held thereafter in connection
therewith, even if the majority of the answers to question No.
8 were, also, in the affirmative. If the majority of the answers
to question No. 7 were in the negative, neither may another
plebiscite be held, even if the majority of the answers to
question No. 8 were in the affirmative. In either case, not more
than one plebiscite could be held for the ratification or
rejection of the proposed Constitution. In short, the insertion of
said two (2) questions — apart from the other questions
adverted to above — indicates strongly that the proceedings
therein did not partake of the nature of a plebiscite or election
for the ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the
proposed Constitution has been approved or adopted by the
people in the citizens' assemblies all over the Philippines,
when it is, to my mind, a matter of judicial knowledge that
there have been no such citizens' assemblies in many parts of
Manila and suburbs, not to say, also, in other parts of the
Philippines. In a letter of Governor Efren B. Pascual of
Bataan, dated January 15, 1973, to the Chief Executive, the
former reported:
... This report includes a resumee (sic) of the
activities we undertook in effecting
the referendum on the eleven questions you
wanted our people consulted on and the
Summary of Results thereof for each
municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however,
dealt only on the original five questions.
Consequently, when we received an instruction
on January 10 to change the questions, we
urgently suspended all scheduled Citizens
Assembly meetings on that day and called all
Mayors, Chiefs of Offices and other government
officials to another conference to discuss with
them the new set of guidelines and materials to
be used.
On January 11, ... another instruction from the
top was received to include the original five
questions among those to be discussed and
asked in the Citizens' Assembly meetings. With
this latest order, we again had to make
modifications in our instructions to all those
managing and supervising the holding of the
Citizens' Assembly meetings throughout the
province. ... Aside from the coordinators we had
from the Office of the Governor, the splendid
cooperation and support extended by almost all
government officials and employees in the
province, particularly of the Department of
Education, PC and PACD personnel, provided
us with enough hands to trouble shoot and
implement sudden changes in the instructions
anytime and anywhere needed. ...
... As to our people, in general, their enthusiastic
participation showed their preference and
readiness to accept this new method of
government to people consultation in
shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had
to suspend "all scheduled Citizens' Assembly meetings ..."
and call all available officials "... to discuss with them the new
set of guidelines and materials to be used ... ." Then, "on
January 11 ... another instruction from the top was received to
include the original five questions among those
be discussed and asked in the Citizens' Assembly meetings.
With this latest order, we again had to make modifications in
our instructions to all those managing and supervising holding
of the Citizens' Assembly meetings throughout province. ... As
to our people, in general, their enthusiastic participation
showed their preference and readiness to accept the new
method of government to people consultation in shaping
up government policies."
This communication manifestly shows: 1) that, as late a
January 11, 1973, the Bataan officials had still to discuss —
not put into operation — means and ways to carry out the
changing instructions from the top on how to organize the
citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies;
2) that the assemblies would involve no more
than consultations or dialogues between people and
government — not decisions be made by the people; and 3)
that said consultations were aimed only at "shaping
up government policies" and, hence could not, and did not,
partake of the nature of a plebiscite for the ratification or
rejection of a proposed amendment of a new or revised
Constitution for the latter does not entail the formulation of
a policy of the Government, but the making of decision by the
people on the new way of life, as a nation, they wish to have,
once the proposed Constitution shall have been ratified.
If this was the situation in Bataan — one of the provinces
nearest to Manila — as late as January 11, 1973, one can
easily imagine the predicament of the local officials and
people in the remote barrios in northern and southern Luzon,
in the Bicol region, in the Visayan Islands and Mindanao. In
fact, several members of the Court, including those of their
immediate families and their household, although duly
registered voters in the area of Greater Manila, were not even
notified that citizens' assemblies would be held in the places
where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to
the "duty cast upon the court of taking judicial cognizance of
anything affecting the existence and validity of any law or
portion of the
Constitution ... ." In line with its own pronouncement in
another case, the Federal Supreme Court of the United States
stressed, in Baker v. Carr, 78 that "a court is not at liberty
to shut its eyes to an obvious mistake, when the validity of the
law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question
under consideration can be answered or resolved otherwise
than in the negative.
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,
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 the
are bound to obey and act in conformity with the orders of the
President, under whose "control" they are, pursuant to the
1935 Constitution. They have absolutely no other choice,
specially in view of Proclamation No. 1081 placing the
Philippines under Martial Law. Besides, by virtue of the very
decrees, orders and instructions issued by the President
thereafter, he had assumed all powers of Government —
although some question his authority to do so — and,
consequently, there is hardly anything he has done since the
issuance of Proclamation No. 1102, on January 17, 1973 —
declaring that the Constitution proposed by the 1971
Constitutional Convention has been ratified by the
overwhelming majority of the people — that he could not do
under the authority he claimed to have under Martial Law,
since September 21, 1972, except the power of supervision
over inferior courts and its personnel, which said proposed
Constitution would place under the Supreme Court, and which
the President has not ostensibly exercised, except as to some
minor routine matters, which the Department of Justice has
continued to handle, this Court having preferred to maintain
the status quo in connection therewith pending final
determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot
generally be said to have "recognized" its own acts.
Recognition normally connotes the acknowledgment by a
party of the acts of another. Accordingly, when a subordinate
officer or office of the Government complies with the
commands of a superior officer or office, under whose
supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal
and constitutional viewpoint, there is no act of recognition
involved therein. Indeed, the lower officer or office, if he or it
acted otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 —
cited by respondents herein in support of the theory of the
people's acquiescence — involved a constitution ordained in
1902 and "proclaimed by a convention duly called by a direct
vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of that Convention
has been recognized, accepted and acted upon as
the only valid Constitution of the State" by —
1. The "Governor of the State in swearing fidelity to it and
proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution
ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by
its having been engaged for nearly a year, in legislating under
it and putting its provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to
support it and by enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully
accepting it and acquiescing in it, by registering as voters
under it to the extent of thousands throughout the State, and
by voting, under its provisions, at a general election for their
representatives in the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a
convention whose members were elected directly by the
people, was not submitted to the people for ratification or
rejection thereof. But, it was recognized, not by the
convention itself, but by other sectors of the Government,
namely, the Governor; the Legislature — not merely by
individual acts of its members, but by formal joint resolution of
its two (2) chambers; by the judiciary; and by the people, in
the various ways specified above. What is more, there was no
martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law,
the strict enforcement of which was announced shortly
before the alleged citizens' assemblies. To top it all, in the
Taylor case, the effectivity of the contested amendment was
not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the
Government, and complied with by the people who
participated in the elections held pursuant to the provisions of
the new Constitution. In the cases under consideration, the
legality of Presidential Decree No. 73 calling a plebiscite to be
held on January 15, 1973, was impugned as early as
December 7, 1972, or five (5) weeks before the scheduled
plebiscite, whereas the validity of Proclamation No. 1102
declaring on January 17, 1973, that the proposed Constitution
had been ratified — despite General Order No. 20, issued on
January 7, 1972, formally and officially suspending the
plebiscite until further notice — was impugned as early as
January 20, 1973, when L-36142 was filed, or three (3)
days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our
House of Representatives and Senate have acquiesced in the
new or revised Constitution, by filing written statements opting
to serve in the Ad Interim Assembly established in the
Transitory Provisions of said Constitution. Individual acts of
recognition by members of our legislature, as well as of other
collegiate bodies under the government, are invalid as acts of
said legislature or bodies, unless its members have performed
said acts in session duly assembled, or unless the law
provides otherwise, and there is no such law in the
Philippines. This is a 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". Then, in its issue of December 29, 1972, the same
paper imputed to the Executive an appeal "to diverse groups
involved in a conspiracy to undermine" his powers" under
martial law to desist from provoking a constitutional
crisis ... which may result in the exercise by me of authority I
have not exercised."
No matter how good the intention behind these statement may
have been, the idea implied therein was too clear
an ominous for any member of Congress who thought of
organizing, holding or taking part in a session of Congress,
not to get the impression that he could hardly do so without
inviting or risking the application of Martial Law to him. Under
these conditions, I do not feel justified in holding that the
failure of the members of Congress to meet since January 22,
1973, was due to their recognition, acquiescence in or
conformity with the provisions of the aforementioned
Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation
No. 1081, placing the entire Philippines under Martial Law,
neither am I prepared to declare that the people's inaction as
regards Proclamation No. 1102, and their compliance with a
number of Presidential orders, decrees and/or instructions —
some or many of which have admittedly had salutary effects
— issued subsequently thereto amounts, constitutes or attests
to a ratification, adoption or approval of said Proclamation No.
1102. In the words of the Chief Executive, "martial law
connotes power of the gun, meant coercion by the military,
and compulsion and intimidation." 83 The failure to use the
gun against those who comply with the orders of the party
wielding the weapon does not detract from the intimidation
that Martial Law necessarily connotes. It may reflect the good,
reasonable and wholesome attitude of the person who has the
gun, either pointed at others, without pulling the trigger, or
merely kept in its holster, but not without warning that he may
or would use it if he deemed it necessary. Still, the intimidation
is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or
acquiescence. This is specially so when we consider that the
masses are, by and large, unfamiliar with the parliamentary
system, the new form of government introduced in the
proposed Constitution, with the particularity that it is not even
identical to that existing in England and other parts of the
world, and that even experienced lawyers and social
scientists find it difficult to grasp the full implications of some
provisions incorporated therein.
As regards the applicability to these cases of the "enrolled bill"
rule, it is well to remember that the same refers to a document
certified to the President — for his action under the
Constitution — by the Senate President and the Speaker of
the House of Representatives, and attested to by the
Secretary of the Senate and the Secretary of the House of
Representatives, concerning legislative measures approved
by the two Houses of Congress. The argument of the Solicitor
General is, roughly, this: If the enrolled bill is entitled to full
faith and credence and, to this extent, it is conclusive upon the
President and the judicial branch of the Government, why
should Proclamation No. 1102 merit less consideration than in
enrolled bill?
Before answering this question, I would like to ask the
following: If, instead of being certified by the aforementioned
officers of Congress, the 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
Citizens Assemblies allegedly held all over the Philippines —
and the records do not show that any such certification, to the
President of the Philippines or to the President Federation or
National Association of presidents of Provincial Associations
of presidents of municipal association presidents of barrio or
ward assemblies of citizens — would not, legally and
constitutionally, be worth the paper on which it is written.
Why? Because said Department Secretary is not the officer
designated by law to superintend plebiscites or elections held
for the ratification or rejection of a proposed amendment or
revision of the Constitution and, hence, to tabulate the results
thereof. Worse still, it is the department which, according to
Article X of the Constitution, should not and must not be all
participate in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v.
Sandoval, 84 the Highest Court of the United States that courts
"will not stand impotent before an obvious instance of
a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or
expressly indicated their conformity to the proposed
Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be
said about the procedure followed in these five (5) cases. In
this connection, it should be noted that the Court has not
decided whether or not to give due course to the petitions
herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the
respective petitions — with three (3) members of the voting to
dismiss them outright — and then considers comments thus
submitted by the respondents as motions to dismiss, as well
as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity
of deciding the same with utmost dispatch, and the main
defense set up by respondents herein, namely, the alleged
political nature of said issue, placing the same, according to
respondents, beyond the ambit of judicial inquiry and
determination. If this defense was sustained, the cases could
readily be dismissed; but, owing to the importance of the
questions involved, a reasoned resolution was demanded by
public interest. At the same time, respondents had cautioned
against a judicial inquiry into the merits of the issues posed on
account of the magnitude of the evil consequences, it was
claimed, which would result from a decision thereon, if
adverse to the Government.
As a matter of fact, some of those issues had been raised in
the plebiscite cases, which were dismissed as moot and
academic, owing to the issuance of Proclamation No. 1102
subsequently to the filing of said cases, although before the
rendition of judgment therein. Still one of the members of the
Court (Justice Zaldivar) was of the opinion that the
aforementioned issues should be settled in said cases, and
he, accordingly, filed an opinion passing upon the merits
thereof. On the other hand, three (3) members of the Court —
Justices Barredo, Antonio and Esguerra — filed separate
opinions favorable to the respondents in the plebiscite cases,
Justice Barredo holding "that the 1935 Constitution has pro
tanto passed into history and has been legitimately
supplanted by the Constitution in force by virtue of
Proclamation 1102." 86 When the petitions at bar were filed,
the same three (3) members of the Court, consequently, voted
for the dismissal of said petitions. The majority of the
members of the Court did not share, however, either view,
believing that the main question that arose before the
rendition of said judgment had not been sufficiently discussed
and argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every
possible opportunity to do so and to elucidate on and discuss
said question. Thus, apart from hearing the parties in oral
argument for five (5) consecutive days — morning and
afternoon, or a total of exactly 26 hours and 31 minutes — the
respective counsel filed extensive notes on their or
arguments, as well as on such additional arguments as they
wished to submit, and reply notes or memoranda, in addition
to rejoinders thereto, aside from a sizeable number of
document in support of their respective contentions, or as
required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the
documents filed in support thereof so numerous and bulky,
that, for all intents and purposes, the situation is as if —
disregarding forms — the petitions had been given due course
and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe
that they should express their views on the aforementioned
issues as if the same were being decided on the merits, and
they have done so in their individual opinion attached hereto.
Hence, the resume of the votes cast and the tenor of the
resolution, in the last pages hereof, despite the fact that
technically the Court has not, as yet, formally given due
course to the petitions herein.
And, now, here are my views on the reliefs sought by the
parties.
In 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
Fundamental Law of the Land, without prejudice to the
submission of said proposed Constitution to the people at a
plebiscite for its ratification or rejection in accordance with
Articles V, X and XV of the 1935 Constitution and the
provisions of the Revised Election Code in force at the time of
such plebiscite.
Perhaps others would feel that my position in these cases
overlooks what they might consider to be the demands of
"judicial statesmanship," whatever may be the meaning of
such phrase. I am aware of this possibility, if not probability;
but "judicial statesmanship," though consistent with Rule of
Law, cannot prevail over the latter. Among consistent ends or
consistent values, there always is a hierarchy, a rule of
priority.
We must realize that the New Society has many
achievements which would have been very difficult, if not
impossible, to accomplish under the old dispensation. But, in
and for the judiciary, statesmanship should not prevail over
the Rule of Law. Indeed, the primacy of the law or of the Rule
of Law and faithful adherence thereto are basic, fundamental
and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the
Court of their individual opinions and/or concurrences as
appended hereto, the writer will now make, with the
concurrence of his colleagues, a resume or summary of the
votes cast by each of them.
It should be stated that by virtue of the various approaches
and views expressed during the deliberations, it was agreed
to synthesize the basic issues at bar in broad general terms in
five questions for purposes of taking the votes. It was further
agreed of course that each member of the Court would
expound in his individual opinion and/or concurrence his own
approach to the stated issues and deal with them and state
(or not) his opinion thereon singly or jointly and with such
priority, qualifications and modifications as he may deem
proper, as well as discuss thereon other related issues which
he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic
issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a
justiciable, or political and therefore 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
and myself, or six (6) members of the Court also hold that the
Constitution proposed by the 1971 Constitutional Convention
was not validly ratified in accordance with Article XV, section 1
of the 1935 Constitution, which provides only one way for
ratification, i.e., "in an election or plebiscite held in accordance
with law and participated in only by qualified and duly
registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether
or not the 1973 Constitution has been validly ratified pursuant
to Article XV, I still maintain that in the light of traditional
concepts regarding the meaning and intent of said Article, the
referendum in the Citizens' Assemblies, specially in the
manner the votes therein were cast, reported and canvassed,
falls short of the requirements thereof. In view, however, of
the fact that I have no means of refusing to recognize as a
judge that factually there was voting and that the majority of
the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of
plebiscite followed in past ratifications, I am constrained to
hold that, in the political sense, if not in the orthodox legal
sense, the people may be deemed to have cast their
favorable votes in the belief that in doing so they did the part
required of them by Article XV, hence, it may be said that in its
political aspect, which is what counts most, after all, said
Article has been substantially complied with, and, in effect, the
1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3)
members of the Court hold that under their view there has
been in effect substantial compliance with the constitutional
requirements for valid ratification.
3. On the third question of acquiescence by the Filipino
people in the aforementioned proposed Constitution, no
majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar,
Antonio and Esguerra hold that "the people have already
accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and
myself hold that there can be no free expression, and there
has even been no expression, by the people qualified to vote
all over the Philippines, of their acceptance or repudiation of
the proposed Constitution under Martial Law. Justice
Fernando states that "(I)f it is conceded that the doctrine
stated in some American decisions to the effect that
independently of the validity of the ratification, a new
Constitution once accepted acquiesced in by the people must
be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in
view of the shortness of time that has elapsed and the
difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant
feature of martial law." 88
Three (3) members of the Court express their lack of
knowledge and/or competence to rule on the question.
Justices Makalintal and Castro are joined by Justice
Teehankee in their statement that "Under a regime of martial
law, with the free expression of opinions through the usual
media vehicle restricted, (they) have no means of knowing, to
the point of judicial certainty, whether the people have
accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the
Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the
petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said
Constitution, in the final analysis, is the basic and ultimate
question posed by these cases to resolve which
considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar,
Fernando, Teehankee and myself voted to deny respondents'
motion to dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of
1973 is in force:
Four (4) members of the Court, namely, Justices
Barredo, Makasiar, Antonio and Esguerra hold
that it is in force by virtue of the people's
acceptance thereof;
Four (4) members of the Court, namely, Justices
Makalintal, Castro, Fernando and Teehankee
cast no vote thereon on the premise stated in
their votes on the third question that they could
not state with judicial certainty whether the
people have accepted or not accepted the
Constitution; and
Two (2) members of the Court, namely, Justice
Zaldivar and myself voted that the Constitution
proposed by the 1971 Constitutional Convention
is not in force;
with the result that there are not enough votes to declare that
the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra with the four (4) dissenting votes of the Chief Justice
and Justices Zaldivar, Fernando and Teehankee, all the
aforementioned cases are hereby dismissed. This being the
vote of the majority, there is no further judicial obstacle to the
new Constitution being considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra,
JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts
have almost uniformly exercised the authority to determine
the validity of the proposal, submission, or ratification of
constitutional amendments. It has been judicially
determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn.
400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz,
63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v.
Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422;
Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W.
779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am.
St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51
L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a
proposed amendment is a single amendment, within the
constitutional requirement that every amendment must be
separately submitted (State v. Powell, 77 Miss. 543, 27 South.
927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W.
891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny,
156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook,
127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo.
369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34
Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W.
1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals
invalidates the amendment (Koehler v. Hill, 60 Iowa, 543,14
N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal.
479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412;
Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19
Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the
description of the amendment and the form of the ballot are
sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v.
Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy
Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether
the method of submission sufficient (Lovett v. Ferguson,, 10
S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W.
849); whether the publication of the amendment or of a notice
relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl.
505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W.
849); whether the submission may be well by resolution as by
a legislative act approved by the executive (Com. v. Griest,
196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver,
101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33
S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47
Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A.
97); at what election the amendment be submitted (People v.
Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183,
the court said: "It is contended that the determination of the
question whether an amendment to the Constitution has been
carried involves the exercise of political, and not judicial,
power. If this be so, it follows that the promulgation of any
purported amendment by the executive or any executive
department is final, and that the action cannot be questioned
by the judiciary; but, with reference to the conditions
precedent to submitting a proposed amendment to a vote of
the people, it has been repeatedly held, by courts of the
highest respectability, that it is within the power of the
judiciary to inquire into the question, even in a collateral
proceeding. ... It is to be noted that under section 1 of article
20 of the Constitution of the state no amendment can become
a part of the Constitution until ratified by a vote of the people.
One prerequisite is equally as essential as the other. The
amendment must first receive the requisite majority in the
Legislature, and afterwards be adopted by the requisite
vote. ... It is the fact of a majority vote which makes the
amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in
the particular case the court was called upon to determine
between rival governments, or whether the Legislature, or
some board or official, had legally performed the duty
imposed by the Constitution or statutes. In re State v.
McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the
General Assembly, under the power granted by the
Constitution, could change the Constitution only in the
manner prescribed by it, and that it was the duty of the
court to determine whether all prerequisites had been
complied with. In Collier v. Frierson, 24 Ala. 100, it was held
that a Constitution can be changes only by the people in
convention or in a mode described by the Constitution itself,
and that if the latter mode is adopted every requisite of the
Constitution must be observed. 'It has been said," says the
court, "that certain acts are to be done, certain requisitions are
to be observed, before a change can be effected; but to what
purpose are these acts required, or these requisitions
enjoined, if the Legislature or any other department of the
government can dispense with them. To do so would be to
violate the instrument which they are sworn to support;
and every principle of public law and sound constitutional
policy requires the court to pronounce against every
amendment which is shown not to have been made in
accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of
a state may form an original Constitution, or abrogate an old
one and form a new one, at any time, without any political
restriction, except the Constitution of the United States, but if
they undertake to add an amendment, by the authority of
legislation to a Constitution already in existence, they can do it
only by the method pointed out by the Constitution to which
the amendment is added. The power to amend a Constitution
by legislative action does not confer the power to break it, any
more than it confers the power to legislate on any other
subject contrary to its prohibitions.' So, in State v. Timme, 54
Wis. 318, 11 N.W. 785, it was held that no amendments can
be made to the Constitution of the state without a compliance
with the provisions thereof, both in the passage of such
amendment by the Legislature and the manner of submitting it
to the people. The courts have not all agreed as to the
strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the
court determined judicially whether an amendment to the
Constitution had been legally adopted. After approving the
statement quoted from Collier v. Frierson, supra, that 'we
entertain no doubt that, to change the Constitution in an other
mode than by a convention, every requisite which is
demanded by the instrument itself must be observed, and the
omission of any one is fatal to the amendment,' the court held
that, 'as substance of right is grander and more potent than
methods of form,' there had been substantial compliance with
the constitutional requirement that a proposed amendment to
the Constitution must be entered at length on the legislative
journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the
electors at the general election of 1880. It did not declare that
the machinery of the general election law should control, or
that any particular officers or board would receive, count, or
canvass the votes cast. But the existing election machinery
was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had
been in terms so ordered. These methods had been followed
in the adoption of previous amendments, and was held that,
conceding the irregularity of the proceedings the Legislature
and the doubtful scope of the provisions for the election, yet in
view of the very uncertainty of such provision the past
legislative history of similar propositions, the universal prior
acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before
the people of the question of the amendment for decision, and
in view of the duty cast upon the court taking judicial
knowledge of anything affecting the existence and validity of
any law or portion of the Constitution, it must be adjudged that
the proposed amendment became part of the Constitution.
The effect was to hold that a provision of the Constitution
requiring the proposed amendment to be entered in full on the
journals was directory, and not mandatory. This liberal view
was approved in State v. Winnett (Neb.) 110 N. 1113, 10
L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac.
167, 102 Am. St. Rep. 34. But it has not been universally
accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the
court, in commenting upon the Kansas case said: 'The
reasoning by which the learned court reached the conclusion
it did is not based on any sound legal principles, but contrary
to them. Neither the argument nor the conclusion can
command our assent or approval. The argument is illogical,
and based on premises which are without any sound
foundation, and rests merely on assumption.' See, also, the
well-considered case of Kadderly v. Portland, 44 Or. 118, 74
Pac. 710, 75 Pac. 222. All these cases concede the
jurisdiction of the court to determine whether, in submitting a
proposed amendment to the people, the Legislature legally
observed the constitutional provisions as to the manner of
procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424,
25 L.R.A. 312, the court, at the instance of a citizen and a
taxpayer, restrained the Secretary of State from taking steps
to submit to the people a proposed amendment to the
Constitution agreed to by the Legislature on the ground that
the Legislature had not acted in conformity with the
Constitution and that the proposed amendment was of such a
character that it could not properly become a part of the
Constitution. The Supreme Court of Colorado, in People v.
Sours, supra, refused to exercise this authority.
"The entire question received elaborate consideration in
Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The
amendment, which concededly had been adopted by the
people, had not, before its submission, been entered in full
upon the legislative journals, as required by the Constitution,
and it was held that this was a material variance in both form
and substance from the constitutional requirements, and that
the amendment did not, therefore, become a part of the
Constitution. As to the claim that the question was political,
and not judicial, it was said that, while it is not competent for
courts to inquire into the validity of the Constitution and the
form of government under which they themselves exist, and
from which they derive their powers, yet, where the existing
Constitution prescribes a method for its own amendment, an
amendment thereto, to be valid, must be adopted in strict
conformity to that method; and it is the duty of the courts in a
proper case, when an amendment does not relate to their own
power or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have
been observed, and, if not, to declare the amendment invalid
and of no force. This case was followed in State v. Brookhart,
113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a
proposed amendment to the Constitution had been legally
adopted was treated as a judicial question. By the
Constitution a proposed amendment was required to be
approved by Legislatures before its submission to the people.
In this instance a bill was passed which contained 17
amendments. The next Legislature rejected 9 and adopted 8
of the amendments, and submitted them to the people. The
majority of the people voted for their adoption; but it was
contended that the Constitution contemplated and required
that the same bill and the same amendments, without change,
should approved by both Legislatures, and that it did not
follow because the second Legislature adopted separately 8
out of 17 amendments adopted by the first Legislature, it
would have adopted the 17, or any of them, if they had been
voted upon the second in the form adopted by the first body.
The substance of the contention was that there had not been
a concurrence of the two Legislatures on the same
amendments, according to the letter and spirit of the
Constitution. The court held that the power of the Legislature
in submitting amendments could not be distinguished from the
powers of convention, and that, as the people had spoken and
ratified the amendments, they became a part of the
Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it
was held that prior to 1876 a proposed amendment to
Constitution could not be submitted to the people at any other
than a general election; but, as the amendment under
consideration had been submitted after the Constitution been
changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question
whether an amendment to the Constitution had been legally
submitted and adopted by the people was held to be judicial,
and not political, in its nature. The amendment under
consideration changed the Constitution by providing for an
elective, instead of an appointive, judiciary. It was contented
that the amendments had been improperly submitted and
adopted by a majority of the qualified voters voting at election,
as required by the Constitution. The law did direct how the
result of the election should be determined. The
Legislature by joint resolution recited that the election had
been duly held throughout the state, and, as it appeared from
the returns made to the Secretary of State, that 21,169 votes
were cast in favor of, and 8,643 votes against, the
amendment, it resolved 'that said amendment be, and hereby
is, inserted into the Constitution of the state of Mississippi as
a part of the Constitution.' In fact, the amendment
was not submitted in the manner prescribed by the
Constitution, and it did not receive a majority of all the
qualified voters voting at the election. It was argued that the
rules prescribed by the Constitution "are all for the guidance of
the Legislature, and from the very nature of the thing the
Legislature must be the exclusive judge of all questions to be
measured or determined by these rules. Whether the question
be political, and certainly a legislative one, or judicial, to be
determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the
separate magistracy of the legislative department full power
to hear, consider, and adjudge that question. The Legislature
puts the question to the qualified electors.
The qualified electors answer back to the Legislature. "If it
shall appear" to the Legislature that its question has been
answered in the affirmative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts
have no authority to speak at any stage of the proceedings
between the sovereign and the Legislature, and when the
matter is thus concluded it is closed, and the judiciary is as
powerless to interfere as the executive.' But it was held that
the question whether the proposition submitted to the voters
constituted one, or more than one, amendment, whether the
submission was according to the requirements of the
Constitution, and whether the proposition was in fact adopted,
were all judicial, and not political, questions. 'We do not,' said
Chief Justice Whitfield, 'seek a jurisdiction not imposed upon
us by the Constitution. We could not, if we would, escape the
exercise of that jurisdiction which the Constitution has
imposed upon us. In the particular instance in which we are
now acting, our duty to know what the Constitution of the state
is, and in accordance with our oaths to support and maintain it
in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one
which, like all others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A.
251, it was held that it was the duty of the judicial department
of the government to determine whether the legislative
department or its officers had observed the constitutional
injunctions in attempting to amend the Constitution, and to
annul their acts if they had not done so. The case is an
interesting and 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 functions placed the subject-matter beyond the
cognizance of the judicial department of the state. The Court
of Appeals, after a full review of the authorities, reversed this
decision, and held that the questions were of a judicial nature,
and properly determinable by the court on their merits. Mr.
Justice Dixon, after stating the facts, said: 'It thus becomes
manifest that there was present in the Supreme Court, and is
now pending in this court, every element tending to maintain
jurisdiction over the subject-matter, unless it be true, as
insisted, that the judicial department of the government has
not the right to consider whether the legislative department
and its agencies have observed constitutional injunctions in
attempting to amend the Constitution, and to annul their acts
in case that they have not done so. That such a proposition is
not true seems to be indicated by the whole history of
jurisprudence in this country.' The court, after considering the
case on the merits, held that the proper conclusion had been
drawn therefrom, and that the amendment in question was
legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396,
presented the identical question which we have under
consideration. In reference to the contention that the
Constitution intended to delegate to the Speaker of the House
of Representatives the power to determine whether an
amendment had been adopted, and that the question was
political, and not judicial, the court observed: "The argument
has often been made in similar cases to the courts, and it is
found in many dissenting opinions; but, with probably
a few exceptions, it is not found in any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it
was held that the constitutional requirement of publication of a
proposed constitutional provision for three months prior to the
election at which it is to be submitted to the people
is mandatory and that noncompliance therewith renders the
adoption of an amendment of no effect."
ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential
Decree No. 86 dated December 31, 1972, the Barangays
(Citizens Assemblies) have petitioned the 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 MAR
the people believe that the submission of the proposed COS
Constitution to the Citizens Assemblies or Barangays should
taken as a plebiscite in itself in view of the fact that freedom of By the President:
debate has always been limited to the leadership in political,
economic and social fields, and that it is now necessary to (SGD.) ALEJANDRO MELCHOR
bring this down to the level of the people themselves through Executive Secretary
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 Separate Opinions
referendum shall include the matter of ratification of the
Constitution proposed by the 1971 Constitutional Convention.  

The Secretary of the Department of Local Government and MAKALINTAL, J., concurring:

Community Development shall insure the implementation of
this Order. CASTRO, J., concurring:

Done in the City of Manila, this 7th day of January in the year The preliminary question before this Court was whether or not
of Our Lord, nineteen hundred and seventy-three. the petitioners had made out a sufficient prima facie case in
their petitions to justify their being given due course.
(SGD Considering on the one hand the urgency of the matter and on
.) the other hand its transcendental importance, which
FER suggested the need for hearing the side of the respondents
DINA before that preliminary question was resolved, We required
ND them to submit their comments on the petitions. After the
E. comments were filed We considered them as motions to
dismiss so that they could be orally argued. As it turned out,
the hearing lasted five days, morning and afternoon, and
could not have been more exhaustive if the petitions had been
given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens
Assemblies as certified and proclaimed by the President on
January 17, 1973 (Proclamation No. 1102) was not an act of
ratification, let alone a valid one, of the proposed Constitution,
because it was not in accordance with the existing
Constitution (of 1935) and the Election Code of 1971. Other
grounds are relied upon by the petitioners in support of their
basic proposition, but to our mind they are merely subordinate
and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that
amendments (proposed either by Congress in joint session or
by a Convention called by it for the purpose) "shall be valid
part of this Constitution when approved by a majority of votes
cast at an election at which the amendments submitted to the
people for their ratification." At the time Constitution was
approved by the Constitutional Convention on February 8,
1935, and ratified in a plebiscite held on following May 14, the
word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept,
but a procedure prescribed by statute ascertaining the
people's choices among candidates for public offices, or their
will on important matters submitted to the pursuant to law, for
approval. It was in this sense that word was used by the
framers in Article XV (also in Articles VI and VII), and in
accordance with such procedure that plebiscites were held to
ratify the very same Constitution in 1935 as well as the
subsequent amendments thereto, thus: in 1939 (Ordinance
appended to the Constitution); 1940 (establishment of a
bicameral legislature; eligibility of the President and the Vice
President for re election; creation of the Commission of
Elections); 1947 (Parity Amendment); and 1967 (increase in
membership of the House of Representatives and eligibility of
members of Congress to run for the Constitutional Convention
without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all
elections of public officers except barrio officials
and plebiscites shall be conducted in the manner provided by
this Code." This is a statutory requirement designed, as were
the other election laws previously in force, to carry out the
constitutional mandate relative to the exercise of the right
suffrage, and with specific reference to the term "plebiscites,"
the provision of Article XV regarding ratification of
constitutional amendments.
The manner of conducting elections and plebiscites provided
by the Code is spelled out in other sections thereof. Section
99 requires that qualified voters be registered in a permanent
list, the qualifications being those set forth in Article V, Section
1, of the 1935 Constitution on the basis of age (21), literacy
and residence. These qualifications are reiterated in Section
101 of the Election Code. Section 102 enumerates the
classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure
for registering voters, the records, of registration and the
custody thereof, the description and printing of official ballots,
the actual casting of votes and their subsequent counting by
the boards of inspectors, the rules for appreciation of ballots,
and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft
Constitution, several additional circumstances should be
considered:
(1) This draft was prepared and approved by a Convention
which had been convened pursuant to Resolution No. 2
passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the
Convention shall be valid and considered part of
the Constitution when approved by a majority of
the votes cast in an election at which they are
submitted to the people for their ratification
pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect
immediately upon its ratification by a majority of
the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall
supersede the Constitution of nineteen hundred
and 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
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
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."
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 COMMENTS ON
concerning plebiscite was reworded as follows: "Do you like
the plebiscite to be held later?" The implication, it may QUESTION No. 1
likewise be noted, was that the Assemblies should express
their views as to the plebiscite should be held, not as to In order to broaden the base of
whether or not it should be held at all. citizens' participation in
government.
The next day, January 11, it was reported that six additional
questions would be submitted, namely: QUESTION No. 2

(1) Do you approve of the citizens assemblies as But we do not want the Ad Interim
the base of popular government to decide issues Assembly to be convoked. Or if it
of national interest? is to be convened at all, it should
not be done so until after at least
(2) Do you approve of the new Constitution? seven (7) years from the approval
of the New Constitution by the
(3) Do you want a plebiscite to be called to ratify Citizens Assemblies.
the new Constitution?
QUESTION No. 3
(4) Do you want the elections to be held in
November, 1973 accordance with the provisions If the Citizens Assemblies approve
of the 1935 Constitution? of the New Constitution, then the
new Constitution should be
(5) If the elections would not be held, when do deemed ratified.
you want the next elections to be called?
The vote of the Citizens
(6) Do you want martial law to continue? Assemblies should already be
[Bulletin Today, January 11, 1973; emphasis considered the plebiscite on the
supplied]. New Constitution.

Appended to the six additional questions above quoted were QUESTION No. 4
the suggested answers, thus:
 We are sick and tired of too
frequent elections. We are fed up
with politics, of so many debates
and so much expenses.
QUESTION No. 5
Probably a period of at least seven
(7) years moratorium on elections
will be enough for stability to be
established in the country, for
reforms to take root and normalcy
to return.
QUESTION No. 6
We want President Marcos to
continue with Martial Law. We
want him to exercise his powers
with more authority. We want him
to be strong and firm so that he
can accomplish all his reform
program and establish normalcy in
the country. If all other measures
fail, we want President Marcos to
declare a revolutionary
government along the lines of the
new Constitution without the ad
interim Assembly.
So it was that on January 11, 1973, the second day of the
purported referendum, the suggestion was broached, for the
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 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 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, 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.
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
enter upon the inquiry proposed in this case, and should come
to the conclusion that the government under which it acted
had been put aside and displaced by an opposing
government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook
to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is
exercising judicial power." In other words, since the court
would have no choice but to decide in one way alone in order
to be able to decide at all, the question could not be
considered proper for judicial determination.
It should be noted that the above statement from Luther vs.
Borden would be applicable in the cases at bar only on the
premise that the ratification of the Constitution was a
revolutionary act and that the government now functioning it is
the product of such revolution. However, we are not prepared
to agree that the premise is justified.
In the first, place, with specific reference to the questioned
ratification, several significant circumstances may be noted.
(1) The Citizens Assemblies were created, according to
Presidential Decree No. 86, "to broaden the base of citizen
participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on
important national issues." (2) The President announced,
according to the Daily Express of January 2, 1973, that "the
referendum will be in the nature of a loose consultation with
the people." (3) The question, as submitted to them on the
particular point at issue here, was "Do you a approve of the
Constitution?" (4) President Marcos, in proclaiming that the
Constitution had been ratified, stated as follows: "(S)ince the
referendum results show that more than 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 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 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.
On January 19, 1973 the Daily Express published statement
of the President made the day before, from which the
following portion is quoted:
... the times are too grave and the stakes too
high for us permit the customary concessions to
traditional democratic process to hold back our
people's clear and unequivocal resolve and
mandate to meet and overcome the
extraordinary challenges presented by these
extraordinary times.
On the same occasion of the signing of Proclamation No.
1102 the President made pointed reference to "the demand of
some of our citizens ... that when all other measures should
fail, that the President be directed to organize and establish a
Revolutionary Government," but in the next breath added: "...
if we do ratify the Constitution, how can we speak of
Revolutionary Government? They cannot be compatible ..."
"(I)t is my feeling," he said, "that the Citizens' Assemblies
which submitted this recommendation merely sought
articulate their impatience with the status quo that has brought
about anarchy, confusion and misery to the masses ..." The
only alternatives which the President clearly implied by the
foregoing statements were the ratification of the new
Constitution and the establishment of a revolutionary
government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been ratified. The third
obvious alternative was entirely ruled out, namely, a return to
the 1935 Constitution, for it was the status quo under that
Constitution that had caused "anarchy, confusion and misery."
The message seems clear: rather than return to such status
quo, he would heed the recommendation of the Citizens'
Assemblies to establish a revolutionary government, because
that would be the only other way to carry out the reforms he
had envisioned and initiated — reforms which, in all fairness
and honesty, must be given credit for the improved quality of
life in its many aspects, except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and
certainly unmistakable, in the foregoing pronouncements, it is
that the step taken in connection with the ratification of the
Constitution was meant to be irreversible, and that nothing
anyone could say would make the least difference. And if this
is a correct and accurate assessment of the situation, then we
would say that since it has been brought about by political
action and is now maintained by the government that is in
undisputed authority and dominance, the matter lies beyond
the power of judicial review.
On the other hand, by avowals no less significant if not so
emphatic in terms, President Marcos has professed fealty to
the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of
Revolution as an instrument of individual and
social change ... but that in a democratic society,
revolution is of necessity, constitutional,
peaceful, and legal.
In his TV address of September 23, 1972, President Marcos
told the nation:
I have proclaimed martial law in accordance with
the powers vested in the President by the
Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil
government functions. The Government of
the Republic of the Philippines which was
established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested
in me by the Constitution to save the Republic
and reform our society...
I have had to use this constitutional power in
order that we may not completely lose the civil
rights and freedom which we cherish...
 ... We are against the wall. We must now defend
the Republic with the stronger powers of the
Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the
Newsweek Magazine (published in the issue of January 29,
1973), the following appears:
xxx xxx xxx
Q. Now that you have gotten off
the constitutional track, won't you
be in serious trouble if you run into
critical problems with your
programs?
R. I have never gotten off the
constitutional track. Everything I
am doing is in accordance with the
1935 Constitution. The only thing
is that instead of 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 that
was followed was not in accordance with the 1935
Constitution and related statutes, we have discharged our
sworn duty as we conceive it to be. The President should now
perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a
consideration, if only to dispel any cloud of doubt that may
now and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated
for resolution is whether or not the new Constitution, since its
submission to the Citizens Assemblies, has found acceptance
among the people, such issue being related to the political
question theory propounded by the respondents. We have not
tarried on the point at all since we find no reliable basis on
which to form a judgment. Under a regime of martial law, with
the free expression of opinions through the usual media
vehicles restricted, we have no means of knowing, to the point
of judicial certainty, whether the people have accepted the
Constitution. In any event, we do not find the issue decisive
insofar as our vote in these cases is concerned. To interpret
the Constitution — that is judicial. That the Constitution should
be deemed in effect because of popular acquiescence — that
is political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant
petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no
more than mere reiterations of the Supplemental Petitions
filed by Counsel Lorenzo M. Tañada on January 15, 1973 in
the so called Plebiscite Cases decided by this Court on
January 22, 1978. Of course, there are amplifications of some
of the grounds previously alleged and in the course of the
unprecedented five-day hearing that was held from February
12 to 16 last, more extensive and illuminating arguments were
heard by Us, but, in my estimation, and with due recognition
of the sincerety, brilliance and eloquence of counsels, nothing
more cogent and compelling than what had already been
previously presented by Counsel Tañada is before Us now.
Accordingly, I cannot see any reason why I should change the
position I took in regard to the earlier cases. I reiterate,
therefore, the vote I cast when these petitions were initially
considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the
issues before the Court and the significance to our people and
in history of the individual stands of the members of the Court
in relation to said issues and to the final outcome of these
cases, and considering that I reserved before the filing of a
more extended opinion, I will take this opportunity to explain
further why I hold that the 1973 Constitution is already in
force, if only to clarify that apart from the people's right of
revolution to which I made pointed reference in my previous
opinion, I can see now, after further reflection, that the vote of
the people in the referendum in the Citizens Assemblies held
on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly
as a political act than as a purely legal one with the result that
such vote to consider the 1973 Constitution as ratified without
the necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution
itself, 1937 of women's suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the 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 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 draft of a complete constitution, instead of mere specific
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
amendments of particular portions of the Constitution of 1935.
Needless to say, before martial law was declared, there was
full and unlimited coverage of the workings in the convention
by the mass media. At the same time, public debates and
discussions on various aspects of proposed amendments
were not uncommon.
Earlier, on November 22, 1972, the Convention had
Resolution No. 5843 proposing "to President Ferdinand
Marcos that a decree be issued calling a plebiscite for
ratification of the proposed new Constitution on appropriate
date as he shall determine and providing for necessary funds
therefor." Acting under this authority, December 1, 1972, the
President issued Presidential Decree No. 73 submitting the
draft constitution for ratification by the people at a plebiscite
set for January 15, 1973. This order contained provisions
more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous
proposed amendments.
In connection with the plebiscite thus contemplated, General
Order No. 17 was issued ordering and enjoining the
authorities to allow and encourage public and free discussions
on proposed constitution. Not only this, subsequently, under
date of December 17, 1972, the President ordered the
suspension the effects of martial law and lifted the suspension
of privilege of the writ of habeas corpus insofar as activities
connected with the ratification of the draft constitution were
concerned. These two orders were not, however, to last very
long. On January 7, 1973, the President, invoking information
related to him that the area of public debate and discussion
had opened by his previous orders was being taken
advantage of by subversive elements to defeat the purposes
for which they were issued and to foment public confusion,
withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3,
1972 Presidential Decree No. 86 creating Citizens Assemblies
"so as to afford ample opportunities for the citizenry to
express their views on important national issues" and one of
the questions presented to said assemblies was: "Do you like
the plebiscite on the proposed Constitution to be held later"
So, the same order of January 7, 1973, General Order No. 20,
the President ordered, "that the plebiscite scheduled to be
held January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President
issued Presidential Decree, No. 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 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;
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?
(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
But we do not want the Ad Interim
Assembly to be convoke. 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.
The Solicitor General claims, and there seems to be showing
otherwise, that the results of the referendum were determined
in the following manner:
Thereafter, the results of the voting were
collated and sent to the Department of Local
Governments. The transmission of the results
was made by telegram, telephone, the provincial
government SSB System in each province
connecting all towns; the SSB communication of
the PACD connecting most provinces; the
Department of Public Information Network
 System; the Weather Bureau Communication
System connecting all provincial capitals and the
National Civil Defense Network connecting all
provincial capitals. The certificates of results
were then flown to Manila to confirm the
previous figures received by the aforementioned
means of transmission. The certificates of
results tallied with the previous figures taken
with the exception of few cases of clerical errors.
The Department adopted a system of
regionalizing the receiving section of the
Citizens Assemblies operation at the
Department wherein the identity of the barrio
and the province was immediately given to a
staff in charge of each region. Every afternoon
at 2:00 o'clock, the 11 regions submitted the
figures they received from the field to the central
committee to tabulate the returns. The last
figures were tabulated at 12 midnight of January
16, 1973 and early morning of January 17, 1973
and were then communicated to the President
by the Department of Local Governments.
The development culminated in the issuance by the President
of Proclamation 1102 on January 17, 1973. Said proclamation
reads:
PROCLAMATION NO. 1102 ANNOUNCING
THE RATIFICATION BY THE FILIPINO
PEOPLE OF THE CONSTITUTION
PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the
nineteen hundred 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 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.
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 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 from six to eight in ordinary cases and from
eight to ten for the declaration of unconstitutionality of a treaty,
executive agreement2 or law, the Court would have to resolve
first as a prejudicial question whether the Court is acting in
these cases as the 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
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 their legality,
not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative
and cumbersome, but more importantly, because the courts
must at the first instance accord due respect to the acts of the
other departments, as otherwise, the smooth running of the
government would have to depend entirely on the unanimity of
opinions among all its departments, which is hardly possible,
unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being
its sole interpreter, which is contrary to all norms of juridical
and political thinking. To my knowledge, there is yet no
country in the world that has recognized judicial supremacy as
its basic governmental principle, no matter how desirable we
might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity
of Our acting on the assumption that this Court is still
functioning under the 1935 Constitution. It is undeniable that
the whole government, including the provincial, municipal and
barrio units and not excluding the lower courts up to the Court
of Appeals, is operating under the 1973 Constitution. Almost
daily, presidential orders and decrees of the most legislative
character affecting practically every aspect of governmental
and private activity as well as the relations between the
government and the citizenry are pouring out from
Malacañang under the authority of said Constitution. On the
other hand, taxes are being exacted and penalties in
connection therewith are being imposed under said orders
and decrees. Obligations have been contracted and business
and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and
employees in big numbers are going on in obedience to them.
For the ten justices of the Supreme Court to constitute an
island of resistance in the midst of these developments, which
even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the
internal workings within the judiciary amount its different
components, what with the lower courts considering such
orders and decrees as forming part of the law of the land in
making their orders and decisions, whereas the Supreme
Court is holding, as it were, their effectivity at bay if it is not
being indifferent to or ignoring them.
It is suggested that the President, being a man of law,
committed to abide by the decision of the Supreme Court, and
if the Court feels that it cannot in the meantime consider the
enforcement of the new Constitution, he can wait for its
decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President,
considers the Supreme Court as still operating under the
Constitution. Quite on the contrary, it is a fact that he has
given instructions for the payment of the justices in
accordance with the rate fixed in the New Constitution. Not
only that, official alter ego, the Secretary of Justice, has been
shoving this Court, since January 18, 1973, all matters related
to the administrative supervision of the lower courts which by
the new charter has been transferred from the Department of
Justice to the Supreme Court, and as far as I know, President
has not countermanded the Secretary's steps in that direction.
That, on the other hand, the President has not augmented the
justices of the Court to complete the prescribed number of
fifteen is, in my appraisal, of no consequence considering that
with the presence of ten justices who are the Court now, there
is a working quorum, and the addition of new justices cannot
in anyway affect the voting on the constitutional questions
now before Us because, while there sufficient justices to
declare by their unanimous vote illegality of Proclamation
1102, the votes of the justices to added would only be
committed to upholding the same, since they cannot by any
standard be expected to vote against legality of the very
Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid
preferable and, even imperative, is that We are dealing here
with a whole constitution that radically modifies or alters only
the form of our government from presidential parliamentary
but also other constitutionally institutions vitally affecting all
levels of society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935
Constitution, with a few improvements. A cursory perusal of
the former should convince anyone that it is in essence a new
one. While it does retain republicanism as the basic
governmental tenet, the institutional changes introduced
thereby are rather radical and its social orientation is
decidedly more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but note
that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity
clauses, involving as they do the statement of general
principles, the citizenship and suffrage qualifications, the
articles on the form of government, the judiciary provisions,
the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the
provisions on the national economy as well as the patrimony
of the nation, not to mention the distinctive features of the
general provisions. What is more, the transitory provisions
notably depart from traditional and orthodox views in that, in
general, the powers of government during the interim period
are more or less concentrated in the President, to the extent
that the continuation or discontinuance of what is now
practically a 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
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 Elections. Furthermore, they emphatically
deny the veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce and
its results were manufactured or prefabricated, considering
that Mr. Francisco Cruz, who is supposed to have submitted
the final report to the President, which served as basis for
Proclamation 1102, had no official authority to render the
same, and it is inconceivable and humanly impossible for
anyone to have been able to gather, tabulate and canvass the
15 million votes allegedly reported within the short period of
time employed. Of course, they also contend that in any
event, there was no proper submission because martial
law per se creates constructive duress which deprives the
voters of the complete freedom needed for the exercise of
their right of choice and actually, there was neither time nor
opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as
counsel for the respondents is that the matter raised in the
petitions is a political one which the courts are not supposed
to inquire into, and, anyway, there has been a substantial
compliance with Article XV of the 1935 Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable
fact is that the voting in the referendum resulted in the
approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the
parties. In my separate opinion in the Plebiscite Cases, I
already made the observation that in view of the lack of
solemnity and regularity in the voting as well as in the manner
of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old
Constitution has been complied with, albeit I held that
nonetheless, the Constitution of 1973 is already in force. In
order, however, to make myself clearer on some relevant
points, I would like to add a few considerations to what I have
already said in the former cases.
In my opinion in those cases, the most important point I took
into account was that in the face of the Presidential
certification through Proclamation 1102 itself that the New
Constitution has been approved by a majority of the people
and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of
the referendum was as the President had stated. I can believe
that the figures referred to in the proclamation may not
accurate, but I cannot say in conscience that all of them are
manufactured or prefabricated, simply because I saw with
own eyes that people did actually gather and listen
discussions, if brief and inadequate for those who are abreast
of current events and general occurrences, and that they did
vote. I believe I can safely say that what I have seen have
also been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not believe to
be possible, that in fact there were actually no meetings held
and no voting done in more places than those wherein there
were such meetings and votings, I am not prepared to
discredit entirely the declaration that there was voting and that
the majority of the votes were in favor of the New Constitution.
If in fact there were substantially less than 14 million votes of
approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a
valid ratification.
It is contended, however, that the understanding was that the
referendum among the Citizens Assemblies was to be in the
nature merely of a loose consultation and not an outright
submission for purposes of ratification. I can see that at the
outset, when the first set of questions was released, such may
have been the idea. It must not be lost sight of, however, that
if the newspaper reports are to be believed, and I say this only
because petitioners would consider the newspapers as the
official gazettes of the administration, the last set of six
questions were included precisely because the reaction to the
idea of mere consultation was that the people wanted greater
direct participation, thru the Citizens Assemblies, in 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 yo
approve of the New Constitution? and (2) Do you want
plebiscite to be called to ratify the new Constitution? should
be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters
mentioned. Accordingly, I take it that if the majority had
expressed disapproval of the new Constitution, the logical
consequence would have been the complete abandonment of
the idea of holding any plebiscite at all. On the other hand, it is
very plain to see that since the majority has already approved
the new Constitution, a plebiscite would be superfluous. Clear
as these rationalizations may be, it must have been thought
that if the holding of a plebiscite was to be abandoned, there
should be a direct and expressed desire of the people to such
effect in order to forestall as much as possible any serious
controversy regarding the non-holding of the plebiscite
required by the letter of Section 16 of Article XVII, the
effectivity clause, of the new Constitution. Oddly enough, the
"comments" accompanying the questions do strongly suggest
this view. And as it turned out, the majority found no necessity
in holding a plebiscite.
In connection with the question, Do you approve of the New
Constitution? capital is being made of the point that as so
framed, the thrust of the said question does not seek an
answer of fact but of opinion. It is argued that it would have
been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have
been weighty were it not unrealistic. I remember distinctly that
the observation regarding the construction of the subject
question was not originally made by any of the talented
counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be
the cause of envy of even professors of English. None of the
other members of the Court, as far as I can recall, ever
noticed how the said question is phrased, or if anyone of Us
did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the
distinguished and learned counsels nor any member of the
Court understood the said question otherwise than calling for
a factual answer instead of a mere opinion, how could anyone
expect the millions of unlettered members of the Citizens
Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference
until Justice Castro gave it emphasis. Besides, reading the
question in the light of the accompanying "comment"
corresponding to it in particular, I am certain that any one who
answered the same understood it in no other sense than a
direct inquiry as to whether or not, as a matter of fact, he
approves the New Constitution, and naturally, affirmative
answer must be taken as a categorical vote of approval
thereof, considering, particularly, that according to the
reported result of the referendum said answer was even
coupled with the request that the President defer the
convening of the Interim National Assembly.
It is also contended that because of this reference in answer
to that question to the deferment of the convening of the
interim assembly, the said answer is at best a conditional
approval not proper nor acceptable for purposes of ratification
plebiscite. The contention has no basis. In interest of
accuracy, the additional answer proposed in pertinent
"comment" reads as follows: "But we do not want Ad Interim
Assembly to be convoked etc." On the assumption that the
actual answer, as reported, was of similar tenor, it is not fair to
ascribe to it the imposition of a condition. At most, the
intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a
martial law was declared, the circumstances surrounding
making of the Constitution acquired a different and more
meaningful aspect, namely, the formation of a new society.
From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet
situation created by the subversive elements was to introduce
immediately effective reforms calculated to redeem the people
from the depth of retrogression and stagnation caused by
rampant graft and corruption in high places, influence
peddling, oligarchic political practices, private armies,
anarchy, deteriorating conditions of peace and order, the so
inequalities widening the gap between the rich and the poor,
and many other deplorable long standing maladies crying for
early relief and solution. Definitely, as in the case of rebellious
movement that threatened the Quirino Administration, the
remedy was far from using bullets alone. If a constitution was
to be approved as an effective instrument towards the
eradication of such grave problems, it had to be approved
without loss of time and sans the cumbersome processes
that, from the realistic viewpoint, have in the past obstructed
rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident objective in
having a new constitution is to establish new directions in the
pursuit of the national aspirations and the carrying out of
national policies. Only by bearing these considerations in
mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as
evidence of corruption of the will of those who attended the
assemblies, but actually, they may also be viewed in the same
light as the sample ballots commonly resorted to in the
elections of officials, which no one can contend are per
se means of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are
not generally possible, nor practical, considering the need for
faster decisions and more resolute action. After all voting on a
whole new constitution is different from voting on one, two or
three specific proposed amendments, the former calls for
nothing more than a collective view of all the provisions of the
whole charter, for necessarily, one has to take the good
together with the bad in it. It is rare for anyone to reject a
constitution only because of a few specific objectionable
features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the
people the paths open to them in their quest for the
betterment of their conditions, and as long as it is not shown
that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will,
I am not convinced that the existence of said "comments"
should make any appreciable difference in the court's
appraisal of the result of the referendum.
I must confess that the fact that the referendum was held
during martial law detracts somehow from the value that the
referendum would otherwise have had. As I intimated,
however, in my former opinion, it is not fair to condemn and
disregard the result of the referendum barely because of
martial law per se. For one thing, many of the objectionable
features of martial law have not actually materialized, if only
because the implementation of martial law since its inception
has been generally characterized by restraint and
consideration, thanks to the expressed wishes of the
President that the same be made "Philippine style", which
means without the rigor that has attended it in other lands and
other times. Moreover, although the restrictions on the
freedom of speech, the press and movement during martial
law do have their corresponding adverse effects on the area
of information which should be open to a voter, in its real
sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ
of habeas corpus. The reason is simply that a man may freely
and correctly vote even if the needed information he
possesses as to the candidates or issues being voted upon is
more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of
the cause thereof, that is something else which may actually
cause him to cast a captive vote. Thus it is the suspension of
the writ of habeas corpus accompanying martial law that can
cause possible restraint on the freedom choice in an election
held during martial law. It is a fact, however, borne by history
and actual experience, that in the Philippines, the suspension
of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that
only those who run afoul the law, saving inconsequential
instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is
recorded that in the elections 1951 and 1971, held while the
privilege of writ of habeas corpus was under suspension, the
Filipino voters gave the then opposition parties overwhelming
if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not
trying to show that the result of the referendum may
considered as sufficient basis for declaring that the New
Constitution has been ratified in accordance with the
amending clause of the 1935 Constitution. I reiterate that in
point of law, I find neither strict nor substantial compliance.
The foregoing discussion is only to counter, if I may, certain
impression regarding the general conditions obtaining during
and in relation to the referendum which could have in one way
or another affected the exercise of the freedom of choice and
the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may
be relevant in my subsequent discussions of the acceptance
by the people of the New Constitution they may also be
considered.
IV
It is my sincere conviction that the Constitution of 1973 has
been accepted or adopted by the people. And on this premise,
my considered opinion is that the Court may no longer decide
these cases on the basis of purely legal considerations.
Factors which are 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 referring to the results announced in the
proclamation itself. Giving substantial allowances for possible
error and downright manipulation, it must not be overlooked
that, after all, their having been accepted and adopted by the
President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate
officials, elevated them to the category of an act of a
coordinate department of the government which under the
principle separation of powers is clothed with presumptive
correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due
to the unorthodoxy of the procedure adopted and the difficulty
of an accurate checking of all the figures, I am unable to
conceive of any manageable means of acquiring information
upon which to predicate a denial, I have no alternative but to
rely on what has been officially declared. At this point, I would
venture to express the feeling that if it were not generally
conceded that there has been sufficient showing of the
acceptance in question by this time, there would have been
already demonstrative and significant indications of a rather
widespread, if not organized resistance in one form or
another. Much as they are to be given due recognition as
magnificent manifestations of loyalty and devotion to
principles, I cannot accord to the filing of these cases as
indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the
Court in Tolentino vs. Comelec, 41 SCRA 702, I made strong
and unequivocal pronouncements to the effect that any
amendment to the Constitution of 1935, to be valid, must
appear to have been made in strict conformity with the
requirements of Article XV thereof. What is more, that
decision asserted judicial competence to inquire into the
matter of compliance or non compliance as a justiciable
matter. I still believe in the correctness of those views and I
would even add that I sincerely feel it reflects the spirit of the
said constitutional provision. Without trying to strain any point
however, I, submit the following considerations in the context
of the peculiar circumstances of the cases now at bar, which
are entirely different from those in the backdrop of the
Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not
just an amendment of a particular provision of an existing
Constitution; here, it is, as I have discussed earlier above, an
entirely new Constitution that is being proposed. This
important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat
and Roy, who was himself the petitioner in the case I have
just referred to is, now inviting Our attention to the exact
language of Article XV and suggesting that the said Article
may be strictly applied to proposed amendments but may
hardly govern the ratification of a new Constitution. It is
particularly stressed that the Article specifically refers to
nothing else but "amendments to this Constitution" which if
ratified "shall be valid as part of this Constitution." Indeed,
how can a whole new constitution be by any manner of
reasoning an amendment to any other constitution and how
can it, if ratified, form part of such other constitution? In fact, in
the Tolentino case I already somehow hinted this point when I
made reference in the resolution denying the motion for
reconsideration to the fact that Article XV must be followed "as
long as any amendment is formulated and submitted under
the aegis of the present Charter." Said resolution even added.
"(T)his is not to say that the people may not, in the exercise of
their inherent revolutionary powers, amend the Constitution or
promulgate an entirely new one otherwise.".
It is not strange at all to think that the amending clause of a
constitution should be confined in its application only to
proposed changes in any part of the same constitution itself,
for the very fact that a new constitution is being adopted
implies a general intent to put aside the whole of the old one,
and what would be really incongrous is the idea that in such
an eventuality, the new Constitution would subject its going
into effect to any provision of the constitution it is to
supersede, to use the language precisely of Section 6, Article
XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born,
they very rarely, if at all, come into being, by virtue of any
provision of another constitution. 3 This must be the reason
why every constitution has its own effectivity clause, so that if,
the Constitutional Convention had only anticipated the idea of
the referendum and provided for such a method to be used in
the 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 regular session. It must be assumed
that being composed of experienced, knowledgeable and
courageous members, it would not have been difficult for said
parliamentary bodies to have conceived some ingenious way
of giving evidence of their determined adherence to the
Constitution under which they were elected. Frankly, much as
I admire the efforts of the handful of senators who had their
picture taken in front of the padlocked portals of the Senate
chamber, I do not feel warranted to accord such act as
enough token of resistance. As counsel Tolentino has
informed the court, there was noting to stop the senators and
the congressmen to meet in any other convenient place and
somehow officially organize themselves in a way that can
logically be considered as a session, even if nothing were
done than to merely call the roll and disperse. Counsel
Tolentino even pointed out that if there were not enough
members to form a quorum, any smaller group could have
ordered the arrest of the absent members. And with particular
relevance to the present cases, it was not constitutionally
indispensable for the presiding officers to issue any call to the
members to convene, hence the present prayers
for mandamus have no legal and factual bases. And to top it
all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out
of less than 120 members of the House of Representatives,
have officially and in writing exercised the option given to
them to join the Interim National Assembly under the New
Constitution, thereby manifesting their acceptance of the new
charter.
Now, having these facts in mind, and it being obvious that of
the three great departments of the government under the
1935 Constitution, two, the Executive and the Legislative,
have already accepted the New Constitution and recognized
its enforceability and enforcement, I cannot see how this
Supreme Court can by judicial fiat hold back the political
developments taking place and for the sake of being the
guardian of the Constitution and the defender of its integrity
and supremacy make its judicial power prevail against the
decision of those who were duly chosen by the people to be
their authorized spokesmen and representatives. It is not
alone the physical futility of such a gesture that concerns me.
More than that, there is the stark reality that the Senators and
the Congressmen, no less than the President, have taken the
same oath of loyalty to the Constitution that we, the Justices,
have taken and they are, therefore, equally bound with Us to
preserve and protect the Constitution. If as the
representatives of the people, they have already opted to
accept the New Constitution as the more effective instrument
for fulfillment of the national destiny, I really wonder if there is
even any idealistic worth in our desperately clinging by
Ourselves alone to Our sworn duty 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 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
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 whether or not we, as members of the Supreme Court are
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
being true to our duty to our people by refusing to follow suit
and accept the realities of the moment, despite our being
convinced of the sincerity and laudableness of their
objectives, only because we feel that by the people's own act
of ratifying the Constitution of 1935, they have so encased
themselves within its provisions and may, therefore, no longer
take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they
act in strict conformity therewith. I cannot believe that any
people can be so stifled and enchained. In any event, I
consider it a God-given attribute of the people to disengage
themselves, if necessary, from any covenant that would
obstruct their taking what subsequently appears to them to be
the better road to the promotion and protection of their
welfare. And once they have made their decision in that
respect, whether sophisticatedly or crudely, whether in legal
form or otherwise, certainly, there can be no court or power on
earth that can reverse them.
I would not be human if I should be insensitive to the
passionate and eloquent appeals of Counsels Tañada and
Salonga that these cases be decided on the basis of
conscience. That is exactly what I am doing. But if counsel
mean that only by granting their petitions can this Court be
worthily the bulwark of the people's faith in the government, I
cannot agree, albeit my admiration and respect are all theirs
for their zeal and tenacity, their industry and wisdom, their
patriotism and devotion to principle. Verily, they have brought
out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from
foreign invasion, we need not fear playing opposite roles, as
long as we are all animated by sincere love of country and
aim exclusively at the attainment of the national destiny. Our
heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna,
Mabini and so also with our patriots of the recent generations,
Quezon, Osmeña, Roxas, Laurel and Recto, to mention only
some of them, had their differences of views — and they did
not hesitate to take diametrically opposing sides — that even
reached tragic proportions, but all of them are admired and
venerated.
It is my faith that to act with absolute loyalty to our country and
people is more important than loyalty to any particular precept
or provision of the Constitution or to the Constitution itself. My
oath to abide by the Constitution binds me to whatever course
of action I feel sincerely is demanded by the welfare and best
interests of the people.
In this momentous juncture of our history, what is imperative
is national unity. May God grant that the controversies the
events leading to these cases have 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).
In 1957, Mr. Chief Justice Roberto Concepcion, then
Associate Justice, in behalf of the Court, defined a political
question as one which, under the Constitution, is "to be
decided by the people in their sovereign capacity, or in regard
to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada,
et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for
ratification." Under Article XV of the 1935 Constitution, the
power to propose constitutional amendments is vested in
Congress or in a constitutional convention; while the power to
ratify or reject such proposed amendments or new
Constitution is reserved by the sovereign people. The
nullification of Proclamation No. 1102 would inevitably render
inoperative the 1973 Constitution, which is in fact the express
prayer of the petitioners in G.R. No. L-36164. Regardless of
the modality of submission or ratification or adoption — even if
it deviates from or violates the procedure delineated therefore
by the old Constitution — once the new Constitution is ratified,
adopted and/or acquiesced in by the people or ratified even
by a body or agency not duly authorized therefor but is
subsequently adopted or recognized by the people and by the
other official organs and functionaries of the government
established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification,
adoption or acquiescence and of the consequent effectivity of
the new Constitution. This is as it should be in a democracy,
for the people are the repository of all sovereign powers as
well as the source of all governmental authority (Pole vs.
Gray, 104 SO 2nd 841 [1958]). This basic democratic concept
is expressly restated in Section 1 of Article II of the
Declaration of Principles of the 1935 and 1973 Constitutions,
thus: "Sovereignty resides in the people and all government
authority emanates from them."
The legality of the submission is no longer relevant; because
the ratification, adoption and/or acquiescence by the people
cures any infirmity in its submission or any other irregularities
therein which are deemed mandatory before submission as
they are considered merely directory after such ratification or
adoption or acquiescence by the people. As Mr. Justice
Brewer, then of the Kansas State Supreme Court and later
Associate Justice of the Federal Supreme Court, stated in re
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint
499, 506): "The two important, vital elements of the
Legislature and a majority of the popular vote. Beyond these,
other provisions are mere machineries and forms. They may
not be disregarded, because by them certainty as to the
essentials is secured. But they are not themselves the
essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64,
1939).
This was the ruling by the American Supreme Court in the
1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed.
1385), where Chief Justice Hughes, speaking for the majority,
stated that:
... Thus the political departments of the
government dealt with the effect of both previous
rejection and attempted withdrawal and
determined that both were ineffectual in the
presence of an actual ratification ... . This
decision by the political departments of the
Government as to the validity of the adoption of
the Fourteenth amendment has been accepted.
We think that in accordance with this historic
precedent the question of the efficacy of
ratifications by state legislatures, in the light of
previous rejection or attempted withdrawal,
should be regarded as a political question
pertaining to the political departments, with the
ultimate authority in the Congress in the
exercise of its control over the promulgation of
the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his
concurring opinion, in which Mr. Justices Roberts, Frankfurter,
and Douglas join, thus:
The Constitution grants Congress exclusive
power to control submission of constitutional
amendments. Final determination by Congress
that ratification by three-fourths of the States has
taken place "is conclusive upon the courts." In
the exercise of that power, Congress, of course,
is governed by the Constitution. However,
whether submission, intervening procedure or
Congressional determination of 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:
Indeed, the power to amend the Constitution or
to propose amendments thereto is not included
in the general grant of legislative powers to
Congress. It is part of the inherent powers of
the people — as the repository of sovereignty in
a republican state, such as ours — to make, and
hence, to amend their own Fundamental Law.
Congress may propose amendments to the
same explicitly grants such power. Hence, when
exercising the same, it is said that Senators and
Members of the House of Representatives
act, not as members, but as component
elements of a constituent assembly. When
acting as such, the members of Congress derive
their authority from the Constitution, unlike the
people, when performing the same function, for
their authority does not emanate from the
Constitution — they are the very source of all
powers of government, including the
Constitution itself. (21 SCRA 787)
We did not categorically and entirely overturn the doctrine
in Mabanag vs. Lopez Vito (78 Phil. 1) that both the proposal
to amend and the ratification of such a constitutional
amendment are political in nature forming as they do the
essential parts of one political scheme — the amending
process. WE merely stated therein that the force of the ruling
in the said case of Mabanag vs. Lopez Vito has been
weakened by subsequent cases. Thus, We pronounced
therein:
It is true that in Mabanag vs. Lopez Vito, this
Court characterizing the issue submitted thereto
as a political one, declined to pass upon the
question whether or not a given number of votes
cast in Congress in favor of a proposed
amendment to the Constitution — which was
being submitted to the people for ratification —
satisfied the three fourths vote requirement of
the fundamental law. The force of this precedent
has been weakened, however, by Suanes vs.
Chief Accountant of the Senate, Avelino vs.
Cuenco, Tañada vs. Cuenco and Macias vs.
 Commission on Elections. In the first, we held
the officers and employees of the Senate
Electoral Tribunal are supervision and control,
not of that of the Senate President, claimed by
the latter; in the second, this Court proceeded to
determine the number of Senators necessary
for a quorum in the Senate; in the third we
nullified the election, by Senators belonging to
the party having the largest number of votes in
said chamber purporting to act on behalf of the
party having the second largest number of votes
therein, of two (2) Senators belonging to the first
party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of Congress
purporting to apportion the representative
districts for the House of Representatives, upon
the ground that the apportionment had not been
made as may be possible according to the
number of inhabitants of each province. Thus we
rejected the theory advanced in these four (4)
cases, that the issues therein raised were
political questions the determination of which is
beyond judicial review. (21 SCRA pp. 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
began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General
Cornwallis at Yorktown, Virginia, on October 19,
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted
their Articles of Confederation and Perpetual Union, that was
written from 1776 to 1777 and ratified on March 1, 1781
(Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six
thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal
Constitutional Convention "for the sole and express purpose
of revising the articles of confederation ... ." (Appendix I,
Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787.
Article XIII of the Articles of Confederation and Perpetual
Union stated specifically:
The articles of this confederation shall be
inviolably observed in every state, and the union
shall be perpetual; nor shall any alterations at
any time hereafter be made in any of them;
unless such alteration be agreed to in a
congress of the united states, and be afterwards
confirmed by the legislatures of every state.
(See the Federalist, Appendix II, Modern Library
Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of
Confederation and Perpetual Union for the alteration for the
ratification of the Federal Constitution as drafted by the
Philadelphia Convention were not followed. Fearful the said
Federal Constitution would not be ratified by the legislatures
as prescribed, the Philadelphia Convention adopted a
resolution requesting the Congress of the Confederation to
pass a resolution providing that the Constitution should be
submitted to elected state conventions and if ratified by the
conventions in nine (9) states, not necessarily in all thirteen
(13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton
University recorded that:
It would have been a counsel of perfection to
consign the new constitution to the tender
mercies of the legislatures of each and all of the
13 states. Experience clearly indicated that
ratification then would have had the same
chance as the scriptural camel passing through
the eye of a needle. It was therefore determined
to recommend to Congress that the new
Constitution be submitted to conventions in the
several states especially elected to pass upon it
and that, furthermore, the new government
should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The
Federalist, Modern Library Ed., 1937,
Introduction by Edward Earle Mead, pp. 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
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 objected by some members, that they had
no power, no authority, to construct a new
government. They had no authority, if their
decisions were to be final; and no authority
whatsoever, under the articles of confederation,
to adopt the course they did. But they knew that
their labors were only to be suggestions; and
that they as well as any private individuals, and
any private individuals as well as they, had a
right to propose a plan of government to the
people for their adoption. They were, in fact, a
mere assemblage of private citizens, and their
work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office
would have had. The people, by their expressed
will, transformed this suggestion, this proposal,
into an organic law, and the people might have
done the same with a constitution submitted to
them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised
or new constitution, the framing or submission of
the instrument is not what gives it binding force
and effect. The fiat of the people and only the
fiat of the people, can breathe life into a
constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never
justified in placing by implication a limitation
upon the sovereign. This would be an
authorized exercise of sovereign power by the
court. In State v. Swift, 69 Ind. 505, 519, the
Indiana Supreme Court said: "The people of a
State may form an original constitution, or
abrogate an old one and form a new one, at any
time, without any political restriction except the
constitution of the United States; ... ." (37 SE
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 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, ... ." (R.M. MacIver, The Web of Government, 1965 ed.,
p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and
Perpetual Union that was in force from July 12, 1776 to 1788,
forged as it was during the war of independence was a
revolutionary constitution of the thirteen (13) states. In the
existing Federal Constitution of the United States which was
adopted seven (7) or nine (9) years after the thirteen (13)
states won their independence and long after popular support
for the government of the Confederation had stabilized was
not a product of a revolution. The Federal Constitution was a
"creation of the brain and purpose of man" in an era of peace.
It can only be considered revolutionary in the sense that it is a
radical departure from its predecessor, the Articles of
Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal
Constitution of the United States is not the successor to the
Articles of Confederation and Perpetual Union. The fallacy of
the statement is so obvious that no further refutation is
needed.
As heretofore stated, the issue as to the validity of
Proclamation No. 1102 strikes at the validity and enforceability
of the 1973 Constitution and of the government established
and operating thereunder. Petitioners pray for a declaration
that the 1973 Constitution is inoperative (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
previous doctrine, we do not content ourselves
with a mere citation of the cases, but state more
at length than we otherwise would the issues
and the doctrine expounded in the leading and
absolutely controlling case — Luther v.
Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this
inquiry, proposed by the plaintiff, and it should
be decided that the character government had
no legal existence during the period of time
above mentioned, — if it had been annulled by
the adoption of the opposing government,
— then the laws passed by its legislature during
that time were nullities; its taxes wrongfully
collected, its salaries and compensations to its
officers illegally paid ; its public accounts
improperly settled and the judgments and
sentences of its courts in civil and criminal
cases null and void, and the officers who carried
their decisions into operation answerable as
trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the
Constitution of the United States shall guarantee
to every state in the Union a republican form of
government, and shall protect each of them
against invasion; and on the application of the
Legislature or of the Executive (when the
legislature cannot be convened) against
domestic violence.
"Under this article of the Constitution it rests with
Congress to decide what government is
established one in a state. For, as the United
State guarantee to each state a republican
government, Congress must necessarily decide
what government is established in the state
before it can determine whether it is republican
or not. And when the senators and
representatives of a state are admitted into the
Councils of the Union, the authority of the
government under which they were appointed,
as well as its republican character, is recognized
by the proper constitutional authority. And its
decision is binding on every other department of
the government, and could not be questioned in
a judicial tribunal. It is true that the contest in this
case did not last long enough to bring the matter
to this issue; and as no senators or
representatives were elected under the authority
of the government of which Mr. Dorr was the
head, Congress was not called upon to decide
the controversy. Yet the right to decide is placed
there and not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which
indirectly or incidentally refer to the subject, but
conclude by directing attention to the statement
by the court, speaking through Mr. Chief Justice
Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44
L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where,
after disposing of a contention made concerning
the 14th Amendment, and coming to consider a
proposition which was necessary to be decided
concerning the nature and effect of the guaranty
of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be
read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee
to every state in this Union a republican form of
government, and shall protect each of them
against invasion; and on application of the
legislature, or the Executive (when the
legislature cannot be convened), against
domestic violence."
xxx xxx xxx
 "It was long ago settled that the enforcement of
this guaranty belonged to the political
department. Luther v. Borden, 7 How. 1, 12
L.ed. 581. In that case it was held that the
question, which of the two opposing
governments of Rhode Island, namely, the
charter government or the government
established by a voluntary convention, was the
legitimate one, was a question for the
determination of the political department; and
when that department had decided, the courts
were bound to take notice of the decision and
follow it."
xxx xxx xxx
As the issues presented, in their very essence,
are, and have long since by this Court been,
definitely determined to be political and
governmental, and embraced within the scope of
the scope of the powers conferred upon
Congress, and not, therefore within the reach of
judicial power, it follows that the case presented
is not within our jurisdiction, and the writ of error
must therefore be, and it is, dismissed for want
of jurisdiction. (223 U.S. pp. 142-151; emphasis
supplied).
Even a constitutional amendment that is only promulgated by
the Constitutional Convention without authority therefor and
without submitting the same to the people for ratification,
becomes valid, when recognized, accepted and acted upon
the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of Taylor vs.
Commonwealth (44 SE 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. ... Substance more
than form must be regarded in considering
whether the complete constitutional system for
submitting the proposal to amend the
constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the
Court stated:
There may be technical error in the manner in
which a proposed amendment is adopted, or in
its advertisement, yet, if followed, unobjected to,
by approval of the electors, it becomes part of
the Constitution. Legal complaints to the
submission may be made prior to taking the
vote, but, if once sanctioned, the amendment is
embodied therein, and cannot be attacked,
either directly or collaterally, because of any
mistake antecedent thereto. Even though it be
submitted at an improper time, it is effective for
all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A.
263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its
authority, such act becomes valid upon ratification or adoption
or acquiescence by the people. Thus, in the 1905 case of Ex
parte Birmingham and A.R. Company (42 SO pp. 118 & 123),
the Alabama Supreme Court upheld this principle and stated
that: "The authorities are almost uniform that this ratification of
an unauthorized act by the people (and the people are the
principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters
ratifying the new Constitution are registered in the book of
voters; it is enough that they are electors voting on the new
Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251,
emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW
2nd 370, 375), the Supreme Court of Wisconsin ruled that
"irregularity in the procedure for the submission of the
proposed constitutional amendment will not defeat the
ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103
SO 2nd 769), the Alabama Supreme Court pronounced that
"the irregularity in failing to publish the proposed constitutional
amendment once in each of the 4 calendar weeks next
preceding the calendar week in which the election was held or
once in each of the 7-day periods immediately preceding the
day of the election as required by the Constitution, did not
invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi
Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45
462), where they admitted irregularities or illegalities
committed in the procedure for submission of the proposed
constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a sufficient
number of ballot boxes 'secured by good and substantial
locks,' as provided by Section 3249, Code of 1942, Rec., to be
used in the holding of the special election on the constitutional
amendment, and (b) the alleged failure of the State Election
Commissioners to comply with the requirements of Code
Sections 3204 and 3205 in the appointment of election
commissioners in each of the 82 counties. The irregularities
complained of, even if proved, were not such irregularities
would have invalidated the election." (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of
the Constitutional Convention and during the deliberations of
the Constitutional Convention from June 1, 1971 until martial
law was proclaimed on Sept. 21, 1972, the salient reforms
contained in the 1973 Constitution which have long been
desired by the people, had been thoroughly discussed in the
various committees of the Constitutional Convention, on the
floor of the Convention itself, in civic forums and in all the
media of information. Many of the decrees promulgated by the
Chief Executive from Sept. 22, 1972 to Jan. 17, 1973
implement some of the reforms and had been ratified in Sec.
3(2) of Article XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the
majority of the people cannot freely vote for these reforms and
are not complying with the implementing decrees promulgated
by the President.
Free election is not inevitably incompatible with martial law.
We had free elections in 1951 and 1971 when the opposition
won six out of eight senatorial seats despite the suspension of
the privileges of the writ of habeas corpus (see Lansang vs.
Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which
suspension implies constraint on individual freedom as the
proclamation of martial law. In both situations, there is no total
blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas
or Liberals, as well as officials of the Legislative and Executive
branches of the government elected and/or appointed under
the 1935 Constitution have either recognized or are now
functioning under the 1973 Constitution, aside from the fact of
its ratification by the sovereign people through the Citizens
Assemblies. 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
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 of great
popular excitement, it is usually their last resort,
yet it should at the same time be careful to
overstep the proper bounds of its power, as
being perhaps equally dangerous; and
especially where such momentous results might
follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty
required, the overthrow of the work of the
convention.
After the American Revolution the state of
Rhode Island retained its colonial character as
its constitution, and no law existed providing for
the making of a new one. In 1841 public
meetings were held, resulting in the election of a
convention to form a new one, — to be
submitted to a popular vote. The convention
framed one, submitted it to a vote, and declared
it adopted. Elections were held for state officers,
who proceeded to organize a new government.
The charter government did not acquiesce in
these proceedings, and finally declared the state
under martial law. It called another convention,
which in 1843 formed a new
constitution. Whether the charter government, or
the one established by the voluntary convention,
was the legitimate one, was uniformly held by
the courts of the state not to be a judicial, but a
political question; and the political department
having recognized the one, it was held to be the
duty of the judiciary to follow its decision. The
supreme court of the United States, in Luther v.
Borden, 7 How. 1, while not expressly deciding
the principle, as it held the federal court, yet in
the argument approves it, and in substance
says that where the political department has
decided such a matter the judiciary should abide
by it.
Let us illustrate the difficulty of a court deciding
the question: Suppose this court were to hold
that the convention, when it reassembled, had
no power to make any material amendment, and
that such as were made are void by reason of
the people having theretofore approved the
instrument. Then, next, this court must
determine what amendments were material; and
we find the court, in effect, making a
constitution. This would be arrogating
sovereignty to itself. Perhaps the members of
the court might differ as to what amendments
are material, and the result would be confusion
and anarchy. One judge might say that all the
amendments, material and immaterial, were
void; another, that the convention had then the
implied power to correct palpable errors, and
then the court might differ as to what
amendments are material. If the instrument as
ratified by the people could not be corrected or
altered at all, or if the court must determine what
changes were material, then the instrument, as
passed upon by the people or as fixed by the
court would be lacking a promulgation by the
convention; and, if this be essential, then the
question would arise, what constitution are we
now living under, and what is the organic law of
the state? A suggestion of these matters shows
what endless confusion and harm to the state
might and likely would arise. If, through error of
opinion, the convention exceeded its power, and
the people are dissatisfied, they have ample
remedy, without the judiciary being asked to
overstep the proper limits of its power. The
instrument provides for amendment and
change. If a wrong has been done, it can, in the
proper way in which it should be remedied, is by
the people acting as a body politic. It is not a
question of whether merely an amendment to a
constitution, made without calling a convention,
has been adopted, as required by that
constitution. If it provides how it is to be done,
then, unless the manner be followed, the
judiciary, as the interpreter of that constitution,
will declare the amendment invalid. Koehler v.
Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15
N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12
Pac. Rep. 835. But it is a case where a new
constitution has been formed and promulgated
according to the forms of law. Great interests
have already arisen under it; important rights
exist by virtue of it; persons have been
convicted of the highest crime known to the law,
according to its provisions; the political power of
the government has in many ways recognized it;
and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and
now the organic law of our commonwealth.
We need not consider the validity of the
amendments made after the convention
reassembled. If the making of them was in
excess of its powers, yet, as the entire
instrument has been recognized as valid in the
manner suggested, it would be equally an abuse
of power by the judiciary and violative of the
rights of the people, — who can and properly
should remedy the matter, if not to their liking, —
if it were to declare the instrument of a portion
invalid, and bring confusion and anarchy upon
the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102
and consequently of the adoption of the 1973 Constitution it
would be exercising a veto power on the act of the sovereign
people, of whom this Court is merely an agent, which to say
the least, would be anomalous. This Court cannot dictate to
our principal, the sovereign people, as to how the approval of
the new Constitution should be manifested or expressed. The
sovereign people have spoken and we must abide by their
decision, regardless of our notion as to what is the proper
method of giving assent to the new Charter. In this respect,
WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last
January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres.
Election Contest No. 3, Jan. 8, 1973), was 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." * (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
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 Constitution was ratified by the overwhelming vote of
close to 15 million citizens because there was no official
certification to the results of the same from the Department of
Local Governments. But there was such certification as per
Annex 1 to 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. 112-11 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 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. "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
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 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.
[1949] 83 Phil. 17), if they believe most vehemently in the
justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or
acquiesced in by the people since January 18, 1973 until the
present. The proclaimed conviction of petitioners in L-36165
on this issue would have a ring of credibility, if they proceeded
first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he
who exhorts others to be brave must first demonstrate his own
courage. Surely, they will not affirm that the mere filing of their
petition in 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., concurring:
Pursuant to Our reservation, We now discuss the other issues
raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S
RATIFICATION, ADOPTION OR ACQUIESCENCE
CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which
affirm the proposition that the question as to whether a
constitutional amendment or the revised or new Constitution
has been validly submitted to the people for ratification in
accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption
of validity to the constitutional amendment or the revised or
new Constitution after the government officials or the people
have adopted or ratified or acquiesced in the new Constitution
or amendment, although there was an illegal or irregular or no
submission at all to the people. (Collier vs. Gray, 4th Dec. Dig.
935 [1934], Hammond vs. Clark, 71 SE 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 aforesaid branches of the Government in its
proceedings, including the printing of its own journals (Tañada
and Fernando, Constitution of the Philippines, 1952 ed., Vol. I,
pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz
vs. Autry, 91 Pac. 193). Implicit in that independence, for the
purpose of maintaining the same unimpaired and in order that
its work will not be frustrated, the Convention has the power to
fix the date for the plebiscite and to provide funds therefor. To
deny the Convention such prerogative, would leave it at the
tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be
disposed to submit the proposed Constitution drafted by the
Constitutional Convention to the people for ratification, much
less appropriate the necessary funds therefor. That could
have been the fate of the 1973 Constitution, because the
same abolished the Senate by creating a unicameral National
Assembly to be presided by a Prime Minister who wields both
legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new
Constitution exercises primarily ceremonial prerogatives. The
new Constitution likewise shortened abruptly the terms of the
members of the present Congress (whose terms end on
December 31, 1973, 1975 and 1977) which provides that the
new Constitution shall take effect immediately upon its
ratification (Sec. 16, Article XVII, 1973 Constitution). The fact
that Section 2 of the same Article XVIII secures to the
members of Congress membership in the interim National
Assembly as long as they opt to serve therein within thirty (30)
days after the ratification of the proposed Constitution, affords
them little comfort; because the convening of the interim
National Assembly depends upon the incumbent President
(under Sec. 3[1], Art. XVII, 1973 Constitution). Under the
foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be
disposed to call a plebiscite and appropriate funds therefor to
enable the people to pass upon the 1973 Constitution,
ratification of which means their elimination from the political
scene. They will not provide the means for their own
liquidation.
Because the Constitutional Convention, by necessary
implication as it is indispensable to its independence and
effectiveness, possesses the power to call a plebiscite and to
appropriate funds for the purpose, it inescapably must have
the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate
time for such a referendum as well as the amount necessary
to effect the same; for which reason the Convention thru
Resolution No. 29 approved on November 22, 1972, which
superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a decree be issued
calling a plebiscite for the ratification of the proposed new
Constitution such appropriate date as he shall determine and
providing for the necessary funds therefor, ...," after stating in
"whereas" clauses that the 1971 Constitutional Convention
expected to complete its work by the end of November, 1972
that the urgency of instituting reforms rendered imperative the
early approval of the new Constitution, and that the national
and local leaders desire that there be continuity in the
immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his
subaltern the power to promulgate subordinate rules and
regulations to implement the law, this authority to delegate
implementing rules should not be denied to the Constitutional
Convention, a 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 ... ." (Emphasis supplied). Hence, as
consultative bodies representing the localities including the
barrios, their creation by the President thru Presidential
Decree No. 86 of December 31, 1972, cannot be successfully
challenged.
The employment by the President of these Citizens'
Assemblies for consultation on the 1973 Constitution or on
whether there was further need of a plebiscite thereon, —
both issues of national concern — is still within the delegated
authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded
Resolution No. 5843, does not prescribe that the plebiscite
must be conducted by the Commission on Elections in
accordance with the provisions of the 1971 Revised Election
Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily
included the necessary phrase for the purpose, some such
phrase like "to call a plebiscite to be supervised by the
Commission on Elections in accordance with the provisions of
the 1971 Revised Election Code (or with existing laws)." That
the Constitutional Convention omitted such phrase, can only
mean that it left to the President the determination of the
manner by which the plebiscite should be conducted, who
shall supervise the plebiscite, and who can participate in the
plebiscite. The fact that said Resolution No. 29 expressly
states "that copies of this resolution as approved in plenary
session be transmitted to the President of the Philippines and
the Commission on Elections for implementation," did not in
effect designate the Commission on Elections as supervisor of
the plebiscite. The copies of said resolution that were
transmitted to the Commission on Elections at best serve
merely to notify the Commission on Elections about said
resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was
left to the discretion of the President, who, because he is in
possession of all the facts funnelled to him by his intelligence
services, was in the superior position to decide when the
plebiscite shall be held, how it shall be conducted and who
shall oversee it.
It should be noted that in approving said Resolution No. 29,
the Constitutional Convention itself recognized the validity of,
or validated Presidential Proclamation No. 1081 placing the
entire country under martial law by resolving to "propose to
President Ferdinand E. Marcos that a decree be issued calling
a plebiscite ... ." The use of the term "decree" is significant for
the basic orders regulating the conduct of all inhabitants are
issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial law.
Consequently, the issuance by the President of Presidential
Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor pursuant to
said Resolution No. 29, is a valid exercise of such delegated
authority.
Such delegation, unlike the delegation by Congress of the
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:
... Once this work of drafting has been
completed, it could itself direct the submission to
the people for ratification as contemplated in
Article XV of the Constitution. Here it did not do
so. With Congress not being in session, could
the President, by the decree under question, call
for such a plebiscite? Under such
circumstances, a negative answer certainly
could result in the work of the Convention being
rendered nugatory. The view has been
repeatedly expressed in many American state
court decisions that to avoid such undesirable
consequence the task of submission becomes
ministerial, with the political branches devoid of
any discretion as to the holding of an election for
that purpose. Nor is the appropriation by him of
the amount necessary to be considered as
offensive to the Constitution. If it were done by
him in his capacity as President, such an
objection would indeed have been formidable,
not to say insurmountable. If the appropriation
were made in his capacity as agent of the
Convention to assure that there be submission
to the people, then such an argument loses
force. The Convention itself could have done so.
It is understandable why it should be thus. If it
were otherwise, then a legislative body, the
appropriating arm of the government, could
conceivably make use of such authority to
compel the Convention to submit to its wishes,
on pain of being rendered financially distraught.
The President then, if performing his role as its
agent, could be held as not devoid of such
competence. (pp. 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 ground
that it contains provisions which are ultra vires or beyond the
power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of
government from Presidential to Parliamentary and including
such provisions as Section 3 of Article IV, Section 15 of Article
XIV and Sections 3(2) and 12 of Article XVII in the 1973
Constitution.
Article IV —
Sec. 3. The right of the people to be secure in
their persons, houses, papers, and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall not
be violated, and no search warrant or warrant of
arrest shall issue except upon probable cause to
be determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of
the complainant and the witnesses may
produce, and particularly describing the place to
be searched, and the persons or things to be
seized.
Article XIV —
Sec. 15. Any provision of paragraph one,
Section fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter
into international treaties or agreements as the
national welfare and interest may require."
(Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees,
instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of
the law of the land, and shall remain valid, legal,
binding and effective even after lifting of martial
law or the ratification of this Constitution, unless
modified, revoked, or superseded by
subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent
President, or unless expressly and explicitly
modified or repealed by the regular National
Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and
contracts entered into by the Government, or
any subdivision, agency, or instrumentality
thereof, including government-owned or
controlled corporations, are hereby recognized
as legal, valid and binding. When the national
 interest so requires, the incumbent President of
the Philippines or the interim Prime Minister may
review all contracts, concessions, permits, or
other forms of privileges for the exploration,
development, exploitation, or utilization of
natural resources entered into, granted, issued
or acquired before the ratification of this
Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942,
L-35948, L-35953, L-35961, L-35965, & L-35979), Chief
Justice Roberto Concepcion, concurred in by Justices
Fernando, Barredo, Antonio and the writer, overruled this
objection, thus:
... Regardless of the wisdom and
moral aspects of the contested
provisions of the proposed
Constitution, it is my considered
view that the Convention was
legally 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 ...; because
the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about
the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite
Cases, cited the foregoing pronouncement in the Del Rosario
case, supra, and added: "... it seems to me a sufficient answer
that once convened, the area open for deliberation to a
constitutional convention ..., is practically limitless" (citing Cf.
Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner,
25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297,
77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga.
313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31
[1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School
District vs. City of Pontiac, 247 NW 474, 262 Mich. 338
[1933]).
Mr. Justice Barredo, in his concurring opinion in said
Plebiscite Cases, expressed the view "that when the people
elected the delegates to the Convention and when the
delegates themselves were campaigning, such limitation of
the scope of their function and objective was not in their
minds."
V (1) Article XV of the 1935 Constitution simply provides that
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?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
"such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election
at which the amendments are submitted to the people for
ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election called
by Congress at which the amendments are submitted for
ratification by the qualified electors defined in Article V hereof,
supervised by the Commission on Elections in accordance
with the existing election law and after such amendments
shall have been published in all the newspapers of general
circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign
people, who have the sole power of ratification, which
imposition by the Court is never justified (Wheeler vs. Board
of Trustees, supra).
In effect, petitioners and their counsels are amending by a
strained and tortured construction Article XV of the 1935
Constitution. This is a clear case of usurpation of sovereign
power they do not possess — through some kind of
escamotage. This Court should not commit such a grave error
in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular
submission, due to absence of substantial compliance with
the procedure prescribed by the Constitution and/or the law,
nullifies the proposed amendment or the new Constitution, the
procedure prescribed by the state Constitution is so detailed
that it specifies that the submission should be at a general or
special election, or at the election for members of the State
legislature only or of all state officials only or of local officials
only, or of both state and local officials; fixes the date of the
election or plebiscite limits the submission to only electors or
qualified electors; prescribes the publication of the proposed
amendment or a new Constitution for a specific period prior to
the election or plebiscite; and designates the officer to
conduct the plebiscite, to canvass and to certify the results,
including the form of the ballot which should so state the
substance of the proposed amendments to enable the voter to
vote on each amendment separately or authorizes expressly
the Constitutional Convention or the legislature to determine
the procedure or certain details thereof. See the State
Constitutions of Alabama [1901]; Arizona [1912]; Arkansas
[1874]; Colorado [1976]; Connecticut [1818]; Florida [1887];
Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857];
Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland
[1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments
may be proposed to this Constitution by the
legislature in the manner following: The
proposed amendments shall be read in the
house in which they originate on three several
days, and, if upon the third reading, 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 appointed an election shall be
held for the vote of the qualified electors of the
state upon the proposed amendments. If such
election be held on the day of the general
election, the officers of such general election
shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be
held on a day other than that of a general
election, officers for such election shall be
appointed; and the election shall be held in all
things in accordance with the law governing
general elections. In all elections upon such
proposed amendments, the votes cast thereat
shall be canvassed, tabulated, and returns
thereof be made to the secretary of state, and
counted, in the same manner as in elections for
representatives to the legislature; and if it shall
thereupon appear that a majority of the qualified
electors who voted at such election upon the
proposed amendments voted in favor of the
same, such amendments shall be valid to all
intents and purposes as parts of this
Constitution. The result of such election shall be
made known by proclamation of the governor.
Representation in the legislature shall be based
upon population, and such basis of
representation shall not be changed by
constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon
the ballots used at all elections provided for in
section 284 of this Constitution, the substance or
subject matter of each proposed amendment
shall be so printed that the nature thereof shall
be clearly indicated. Following each proposed
amendment on the ballot shall be printed the
word "Yes" and immediately under that shall be
printed the word "No". The choice of the elector
shall be indicated by a cross mark made by him
or under his direction, opposite the word
expressing his desire, and no amendment shall
be adopted unless it receives the affirmative
vote of a majority of all the qualified electors who
vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either
branch of the General Assembly at a regular
session thereof may propose amendments to
this Constitution, and, if the same be agreed to
by a majority of all the members, elected to each
house, such proposed amendments shall be
entered on the journal with the yeas and nays,
and published in at least one newspaper in each
county, where a newspaper is published, for six
months immediately preceding the next general
election for Senators and Representatives, at
which time the same shall be submitted to the
electors of the State for approval or rejection,
and if a majority of the electors voting at such
 election adopt such amendments, the same
shall become a part of this Constitution; but no
more than three amendments shall be proposed
or submitted at the same time. They shall be so
submitted as to enable the electors to vote on
each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications;
elections. Propositions for the amendment of
this constitution may be made by either branch
of the legislature; and if two thirds of all the
members elected to each house shall concur
therein, such proposed amendments, together
with the yeas and nays, shall be entered on the
journal; and the secretary of state shall cause
the same to be published in at least one
newspaper in each county of the state where a
newspaper is published, for three months
preceding the next election for representatives,
at which time, the same shall be submitted to
the electors, for their approval or rejection; and if
a majority of the electors voting on said
amendments, at said election, shall adopt the
amendments, the same shall become a part of
the constitution. When more than one
amendment shall be submitted at the same time,
they shall be so submitted as to enable the
electors to vote on each amendments
separately; and not more than three propositions
to amend shall be submitted at the same
election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly;
publication; submission to voters; governor's
proclamation. The General Assembly may
propose Amendments to this Constitution;
provided that each Amendment shall be
embraced in a separate bill, embodying the
Article or Section, as the same will stand when
amended and passed by three fifths of all the
members elected to each of the two Houses, by
yeas and nays, to be entered on the Journals
with the proposed Amendment. The bill or bills
proposing amendment or amendments shall be
published by order of the Governor, in at least
two newspapers, in each County, where so
many may be published, and where not more
than one may be published, then in the
newspaper, and in three newspapers published
in the City of Baltimore, once a week for four
weeks immediately preceding the next ensuing
general election, at which the proposed
amendment or amendments shall be submitted,
in a form to be prescribed by the General
Assembly, to the qualified voters of the State for
adoption or rejection. The votes cast for and
 against said proposed amendment or
amendments, severally, shall be returned to the
Governor, in the manner prescribed in other
cases, and if it shall appear to the Governor that
a majority of the votes cast at said election on
said amendment or amendments, severally,
were cast in favor thereof, the Governor shall, by
his proclamation, declare the said amendment
or amendments having received said majority of
votes, to have been adopted by the people of
Maryland as part of the Constitution thereof, and
henceforth said amendment or amendments
shall be part of the said Constitution. When two
or more amendments shall be submitted in the
manner aforesaid, to the voters of this State at
the same election, they shall be so submitted as
that each amendment shall be voted on
separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed
by general assembly or by the initiative. All
amendments proposed by the general assembly
or by the initiative shall be submitted to the
electors for their approval or rejection by official
ballot title as may be provided by law, on a
separate ballot without party designation, at the
next general election, or at a special election
called by the governor prior thereto, at which he
may submit any of the amendments. No such
proposed amendment shall contain more than
one amended and revised article of this
constitution, or one new article which shall not
contain more than one subject and matters
properly connected therewith. If possible, each
proposed amendment shall be published once a
week for two consecutive weeks in two
newspapers of different political faith in each
county, the last publication to be not more than
thirty nor less than fifteen days next preceding
the election. If there be but one newspaper in
any county, publication of four consecutive
weeks shall be made. If a majority of the votes
cast thereon is in favor of any amendment, the
same shall take effect at the end of thirty days
after the election. More than one amendment at
the same election shall be so submitted as to
enable the electors to vote on each amendment
separately.
Article XV of the 1935 Constitution does not require a specific
procedure, much less a detailed procedure for submission or
ratification. As heretofore stated, it does not specify what kind
of election at which the new Constitution shall be submitted;
nor does it designate the Commission on Elections to
supervise the plebiscite. Neither does it limit the ratification to
the qualified electors as defined in Article V of the 1935
Constitution. Much less does it require the publication of the
proposed Constitution for any specific period before the
plebiscite nor does it even insinuate that the plebiscite should
be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure
for submission of the proposed Constitution to the people for
ratification. It does not make any reference to the Commission
on Elections as the body that shall supervise the plebiscite.
And Article XV could not make any reference to the
Commission on Elections because the original 1935
Constitution as ratified on May 14, 1935 by the people did not
contain Article X on the Commission on Elections, which
article was included therein pursuant to an amendment by that
National Assembly proposed only about five (5) years later —
on April 11, 1940, ratified by the people on June 18, 1940 as
approved by the President of the United States on December
1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715;
Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be
said that the original framers of the 1935 Constitution as
ratified May 14, 1935 intended that a body known as the
Commission on Elections should be the one to supervise the
plebiscite, because the Commission on Elections was not in
existence then as was created only by Commonwealth Act
No. 607 approved on August 22, 1940 and amended by
Commonwealth Act No. 657 approved on June 21, 1941 (see
Tañada & Carreon, Political Law of the Philippines, Vol. I,
1961 ed., pp. 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 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.
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.
The very phraseology of the specific laws enacted by the
National Assembly and later by Congress, indicates that there
is need of a statute expressly authorizing the application of
the election laws to plebiscites of this nature. Thus, Com. Act
No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from
providing that "there shall be held a plebiscite on Friday, April
30, 1937, on the question of woman's suffrage ... and that said
amendment shall be published in the Official Gazette in
English and Spanish for three consecutive issues at least
fifteen (15) days prior to said election, ... and shall be posted
in a conspicuous place in its municipal and provincial office
building and in its polling place not later than April 22, 1937"
(Sec. 12, Com. Act No. 34), specifies that the provisions of the
Election Law regarding, the holding of a special election,
insofar as said provisions are not in conflict with it, should
apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and,
that the votes cast according to the returns of the board of
inspectors shall be counted by the National Assembly (Sec.
10, Com. Act No. 34).
The election laws then in force before 1938 were found in
Sections 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 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 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.
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 in
Section 6 of this Act;
c. To act on budgetary and
supplemental appropriations and
special tax ordinances submitted
for its approval by the barrio
council; and
d. To hear the annual report
council concerning the activities
and finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in
the barrio when authorized by a majority vote of
the members present in the barrio assembly,
there being a quorum, or when called by at least
four members of the barrio council; Provided,
however, That no plebiscite shall be held until
after thirty days from its approval by either body,
and such plebiscite has been given the widest
publicity in the barrio, stating the date, time, and
place thereof, the questions or issues to be
decided, action to be taken by the voters, and
such other information relevant to the holding of
the plebiscite.
All duly registered barrio assembly members
qualified to vote may vote in the plebiscite.
Voting procedures may be made either in writing
as in regular election, and/or declaration by the
voters to the board of election tellers. The board
of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act,
in case of vacancies in this body, the barrio
council may fill the same.
A plebiscite may be called to decide on the
recall of any member of the barrio council. A
plebiscite shall be called to approve any
budgetary, supplemental appropriations or
special tax ordinances.
For taking action on any of the above
enumerated measures, majority vote of all the
barrio assembly members registered in the list
of barrio secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates.
— Every citizen of the Philippines, 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
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 ... 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 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
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 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 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 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.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section,
Department of Local Government and Community
Development, issued a certificate dated March 16, 1973 that
she was shown xerox copies of unsigned letters allegedly
coming from Governor Lino Bocalan dated January 15, 1973
and marked "Rejoinder Annex Cavite" addressed to the
President of the Philippines through the Secretary of the
Department of Local Government and Community
Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked
"Rejoinder Annex Pasay City" addressed to the Secretary of
the Department of Local Government and Community
Development; that both xerox copies of the unsigned letters
contain figures showing the results of the referendum of the
Citizens' Assemblies in those areas; and that the said letters
were not received by her office and that her records do not
show any such documents received by her office (Annex 2-
Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in 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 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
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
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) 1 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.
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
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 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 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
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 ... . (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
undermartial law, the President as Commander-in-Chief is
vested with legislative powers, is sustained by the ruling in the
1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-
178) which reiterates the 1945 case of Yamashita vs.
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was
after the surrender of Japan on October 2, 1945 (23 Encyc.
Brit. 1969 ed., p. 799) and hence no more martial law in the
Philippines.
... Consequently, in the promulgation and
enforcement of Executive Order No. 68, the
President of the Philippines has acted in
conformity with the generally accepted principles
and policies of international law which are part of
our Constitution.
The promulgation of said executive order is an
exercise by the President of his powers as
Commander in Chief of all our armed forces, as
upheld by this Court in the case of Yamashita
vs. 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; emphasis supplied).
Chief Justice Stone of the United States Supreme Court
likewise appears to subscribe to this view, when, in his
concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304
[1946]), he defined martial law as "the exercise of the power
which resides in the executive branch of the government to
preserve order and insure the public safety in times of
emergency, when other branches of the government are
unable to function, or their functioning would itself threaten
the public safety." (Emphasis supplied). There is an implied
recognition in the aforesaid definition of martial law that even
in places where the courts can function, such operation of the
courts may be affected by martial law should their
"functioning ... threaten the public safety." It is possible that
the courts, in asserting their authority to pass upon questions
which may adversely affect the conduct of the punitive
campaign against rebels, secessionists, dissidents as well as
subversives, martial law may restrict such judicial function
until the danger to the security of the state and of the people
shall have been decimated.
The foregoing view appears to be shared by Rossiter when he
stated:
Finally, this strong government, which in some
instances might become an outright dictatorship,
can have no other purposes than the
preservation of the independence of the state,
the maintenance of the existing constitutional
order, and the defense of the political and social
liberties of the people. It is important to
recognize the true and limited ends of any
practical application of the principle of
constitutional dictatorship. Perhaps the matter
may be most clearly stated in this way: the
government of a free state is proceeding on its
way and meeting the usual problems of peace
and normal times within the limiting framework
of its established constitutional order. The
functions of government are parceled out among
a number of mutually independent offices and
institutions; the power to exercise those
functions is circumscribed by 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 arbitrarily and even
dictatorially in the swift adaption of measures
designed to save the state and its people from
the destructive effects of the particular crisis.
And the narrow duty to be pursued by this strong
government, this constitutional dictatorship?
Simply this and nothing more: to end the crisis
and restore normal times. The government
assumes no power and abridges no right unless
plainly indispensable to that end; it extends no
further in time than the attainment of that end;
and it makes no alteration in the political, social
and economic structure of the nation which
cannot be eradicated with the restoration of
normal times. In short, the aim of constitutional
dictatorship is the complete restoration of
the status quo ante bellum. This historical fact
does not comport with philosophical theory, that
there never has been a perfect constitutional
dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of
all institutions of government, and the principle
of constitutional dictatorship remains eternally
valid no matter how often and seriously it may
have been violated in practice. (Constitutional
Dictatorship, 1948 ed., by Clinton L. Rossiter, p.
7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law,
the Chief Executive exercises legislative power, whether of
temporary or permanent character, thus:
The measures adopted in the prosecution of a
constitutional dictatorship should never be
permanent in character or effect. Emergency
powers are strictly conditioned by their purpose
and this purpose is the restoration of normal
conditions. The actions directed to this end
should therefore be provisional. For
example, measures of a legislative nature which
work a lasting change in the structure of the
state or constitute permanent derogations from
 existing law should not be adopted under an
emergency enabling act, at least not without the
positively registered approval of the legislature.
Permanent laws, whether adopted in regular or
irregular times, are for parliaments to enact. By
this same token, the decisions and sentences of
extraordinary courts should be reviewed by the
regular courts after the termination of the crisis.
But what if a radical act of permanent character,
one working lasting changes in the political and
social fabric, is indispensable to the successful
prosecution of the particular constitutional
dictatorship? The only answer can be: it must be
resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed
to the revolutionary step of emancipation in aid
of his conservative purpose of preserving the
Union; as a constitutional dictator he had a
moral right to take this radical
action. Nevertheless, it is imperative that any
action with such lasting effects should
eventually receive the positive approval of the
people or of their representatives in the
legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by
severe crisis generated by revolution, insurrection or
economic depression or dislocation, the government
exercises more powers and respects fewer rights in order "to
end the crisis and restore normal times." The government can
assume additional powers indispensable to the attainment of
that end — the complete restoration of peace. In our particular
case, eradication of the causes that incited rebellion and
subversion as secession, is the sine qua non to the complete
restoration of normalcy. Exercise of legislative power by the
President as Commander in Chief, upon his proclamation of
martial law, is justified because, as he professes, it is directed
towards the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or subversive
conspiracies and the consequent dismantling of the rebellious,
insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 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 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; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight
jacket. It is a living organism. As such, it is capable of
growth — or expansion and adaptation to new conditions.
Growth implies changes, political, economic and social."
(Brandeis Papers, Harvard Law School; emphasis supplied).
Harvard Professor Thomas Reed Powell emphasizes
"practical wisdom," for "the logic of constitutional law is the
common sense of the Supreme Court." (Powell, the Validity of
State Legislation, under the Webb-Kenyon Law, 2 Southern
Law Quarterly, pp. 112, 138-139, cited in Bickel's
Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible
men is that nothing is permanent except change. Living
organisms as well as 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
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.
... But I know also, that laws and institutions must go hand in
hand with the progress of the human mind. As that becomes
more developed, more enlightened, as new discoveries are
made, new truths disclosed and manners and opinions
change, with the change of circumstances, institutions must
also advance, and keep pace with the times." (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be
judged in the perspective of history. It cannot be adequately
and fairly appraised within the present ambience, charged as
it is with so much tension and emotion, if not partisan passion.
The analytical, objective historians will write the final verdict in
the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ
of habeas corpus without any constitutional or statutory
authority therefor and of President Franklin Delano Roosevelt
who approved the proclamation of martial law in 1941 by the
governor of Hawaii throughout the Hawaiian territory.
President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United
States from disintegration by his suspension of the privilege of
the writ of habeas corpus, which power the American
Constitution and Congress did not then expressly vest in him.
No one can deny that the successful defense and
preservation of the territorial integrity of the United States was
due in part, if not to a great extent, to the proclamation of
martial law over the territory of Hawaii — main bastion of the
outer periphery or the outpost of the American defense
perimeter in the Pacific — which protected the United States
mainland not only from actual invasion but also from aerial or
naval bombardment by the enemy. Parenthetically, the
impartial observer cannot accurately conclude that the
American Supreme Court acted with courage in its decision in
the cases of Ex parte Milligan and Duncan vs.
Kahanamoku (filed on May 10, 1865 argued on March 5 to 13,
1866, decided on April 3, 1866, and opinion delivered on
December 17, 1866) after the lifting of the proclamation
suspending the privilege of the writ of habeas corpus, long
after the Civil War and the Second World ended respectively
on April 9 or 26, 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 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 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.
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.
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
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 vert
a terrifying blood bath and the breakdown of the Republic, the
incumbent President proclaimed martial law to save the
Republic from being overrun by communists, secessionists
and rebels by effecting the desired reforms in order to
eradicate the evils that plague our society, which evils have
been employed by the communists, the rebels and
secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the
Republic will be decimated. How many of the petitioners and
their counsels have been utilizing the rebels, secessionists
and communists for their own personal or political purposes
and how many of them are being used in turn by the aforesaid
enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for
the greater mass of the populace, more than for their own
selves, they should be willing to give the incumbent Chief
Executive a chance to implement the desired reforms. The
incumbent President assured the nation that he will govern
within the framework of the Constitution and if at any time,
before normalcy is restored, the people thru their Citizens'
Assemblies, cease to believe in his leadership, he will step
down voluntarily from the Presidency. But if, as apprehended
by the petitioners, he abuses and brutalizes the people, then
to the battlements we must go to man the ramparts against
tyranny. This, it is believed, he knows only too well; because
he is aware that he who rides the tiger will eventually end
inside the tiger's stomach. He who toys with revolution will be
swallowed by that same revolution. History is replete with
examples of libertarians who turned tyrants and were burned
at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The
most bloody of such mass executions by the wrath of a
wronged people, was the decapitation by guillotine of about
15,000 Frenchmen including the leaders of the French
revolution, like Robespierre, Danton, Desmoulins and Marat.
He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS
JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents
Executive Officers from implementing the Constitution signed
on November 30, 1972; in 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
referendum conducted in connection therewith, as said
assemblies were merely for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution
prescribing the manner of amending the same were not duly
observed.
The petitions were not given due course immediately but were
referred to the Solicitor General as counsel for the
respondents for comment, with three members of the Court,
including the undersigned, voting to dismiss them outright.
The comments were considered motions to dismiss which
were set for hearing and extensively argued. Thereafter both
parties submitted their notes and memoranda on their oral
arguments.
I.
The issues raised for determination, on which the resolution of
the Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the
competence of this Court to decide, or is it justiciable and fit
for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in
accordance with the amending process prescribed by Article
XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in
by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the
affirmative, are petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue
raised is highly political and, therefore, not justiciable. I
maintain that this Court should abstain from assuming
jurisdiction, but, instead, as an act of judicial statesmanship,
should dismiss the petitions. In resolving whether or not the
question presented is political, joint discussion of issues Nos.
1, 3 and 4 is necessary so as to arrive at a logical conclusion.
For after the acceptance of a new Constitution and
acquiescence therein by the people by putting it into practical
operation, any question regarding its validity should be
foreclosed and all debates on whether it was duly or lawfully
ushered into existence as the organic law of the state become
political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation
No. 1102 and Presidential Decrees Nos. 86 and 86-A are fully
set forth in the majority and dissenting opinions in the
Plebiscite cases decided on January 22, 1973, and need not
be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 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
resistance capable of jeopardizing its existence and disrupting
its operation. Ultimately the issue is whether the new
Constitution may be set aside by this Court. But has it the
power and authority to assume such a stupendous task when
the result of such invalidation would be to subject this nation
to divisive controversies that may totally destroy the social
order which the Government under the new Constitution has
been admirably protecting and promoting under Martial Law?
That the new Constitution has taken deep root and the people
are happy and contended with it is a living reality which the
most articulate critics of the new order cannot deny. 95 out of
108 members of the House of Representatives have opted to
serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise.
The members of the Congress did not meet anymore last
January 22, 1973, not because they were really prevented
from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the
Legislative Department under the 1935 Constitution is a thing
of the past. The Executive Department has been fully
reorganized; the appointments of key executive officers
including those of the Armed Forces were extended and they
took an oath to support and defend the new Constitution. The
courts, except the Supreme Court by reason of these cases,
have administered justice under the new constitution. All
government offices have dealt with the public and performed
their functions according to the new Constitution and laws
promulgated thereunder.
If the real purpose of the petitions is to set aside the new
Constitution, how can this Court justify its assumption of
jurisdiction when no power has ... conferred upon it the
jurisdiction to declare the Constitution or any part thereof null
and void? It is the height of absurdity and impudence for a
court to wage open war against the organic act to which it
owes its existence. The situation in which this Court finds itself
does not permit it to pass upon the question whether or not
the new Constitution has entered into force and has
superseded the 1935 Constitution. If it declares that the
present Constitution has not been validly ratified, it has to
uphold the 1935 Constitution as still the prevailing organic
law. The result would be too anomalous to describe, for then
this Court would have to declare that it is governed by one
Constitution or the 1935 Constitution, and the legislative and
executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how
can it exercise judicial discretion in these cases when it would
have no other choice but to uphold the new Constitution as
against any other one? In the circumstances it would be bereft
of judicial attributes as the matter would then be not meet for
judicial determination, but one addressed to the sovereign
power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that
the new Constitution has been accepted and actually is in
operation would be flying in the face of reason and pounding
one's bare head against a veritable stone wall or a heavily
reinforced concrete, or simply "kicking the deadly pricks" with
one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime,
even without popular ratification at that, submission of the
people thereto by the organization of the government provided
therein and observance of its prescriptions by public officers
chosen thereunder, is indicative of approval. Courts should be
slow in nullifying a Constitution claimed to have been adopted
not in accordance with constitutional or statutory directives
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good,
34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has
been formed and promulgated according to the
forms of law. Great interests have already arisen
under it; important rights exist by virtue of it;
persons have been convicted of the highest
crimes known to the law, according to its
provisions; the political power of the government
has in many ways recognized it; and, under
such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the
organic law of our state. We need not consider
the validity of the amendments made after the
convention reassembled. If the making of them
was in excess of its power, yet as the entire
instrument has been recognized as valid in the
manner suggested, it would be equally an abuse
of power by the judiciary, and violative of the
rights of the people, — who can and properly
should remedy the matter, if not to their liking,
— if it were to declare the instrument or a
portion invalid, and bring confusion and anarchy
upon the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from
entering upon such an inquiry when applied to a
new constitution, and not an amendment,
because the judicial power presupposes an
established government, and if the authority of
that government is annulled and overthrown, the
power of its courts is annulled with it; therefore,
if a state court should enter upon such an
inquiry, come to the conclusion that the
government under which it acted had been
displaced by an opposing government, it would
cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the
question before it; but, if it decides at all, it must
necessarily affirm the existence of the
government under which it exercises its judicial
powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7
How.), 12 L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established
government capable of enacting laws and
enforcing their execution, and appointing judges
to expound and administer them. The
acceptance of the judicial office is a recognition
of the authority of government from which it is
derived. And if the authority of the government is
annulled and overthrown, the power of its courts
and other officers is annulled with it. And if a
State court should enter upon the inquiry
proposed in this case, and should come to
conclusion that the government under which it
acted had been put aside and displaced by an
opposing government it would cease to be a
court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If
 it decides at all as a court, it necessarily affirms
the existence and authority of the government
under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have
been normally conducted on the basis of the new Constitution
and no state with which we maintain diplomatic relations has
withdrawn its recognition of our government. (For particulars
about executive acts done under the new Constitution, see
pages 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)
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, 19731, I held the view that this issue could be properly
resolved by this Court, and that it was in the public interest
that this Court should declare then whether or not the
proposed Constitution had been validly ratified. The majority
of this Court, however, was of the view that the issue was not
squarely raised in those cases, and so the Court, as a body,
did make any categorical pronouncement on the question of
whether or not the Constitution proposed by the 1971
Convention was validly ratified. I was the only one who
expressed the opinion that the proposed Constitution was not
validly ratified and therefore "it should not be given force and
effect."
The Court is now called upon to declare, and to inform the
people of this country, whether or not that proposed
Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has
no jurisdiction to resolve the issue that we have mentioned
because that issue is a political question that cannot be
decided by this Court. This contention by the Solicitor General
is untenable. A political question relates to "those questions
which under the Constitution are to be decided by the people
in their sovereign capacity or in regard to which full
discretionary authority has been delegated to the legislative,
or to the executive, branch of the government.2 The courts
have the power to determine whether the acts of the executive
are authorized by the Constitution and the laws whenever
they are brought before the court in a judicial proceeding. The
judicial department of the government exercises a sort of
controlling, or rather restraining, power over the two other
departments of the government. Each of the three
departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one
department when that sphere is actually transcended. While a
court may not restrain the executive from committing an
unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void,
the same as it may declare a law enacted by the legislature to
be unconstitutional.3 It is a settled doctrine that every officer
under a constitutional government must act according to law
and subject to its restrictions, and every departure therefrom,
or disregard thereof, must subject him to the restraining and
controlling power of the people, acting through the agency of
the judiciary. It must be remembered that the people act
through the courts, as well as through the executive or the
legislature. One department is just as representative as the
other, and judiciary is the department which is charged with
the special duty of determining the limitations which the law
places upon all official actions4 . In the case of Gonzales v.
Commission on Elections5, this Court ruled that the issue as to
whether or not a resolution of Congress acting as a
constituent assembly violates the Constitution is not a political The Chief Justice, in his opinion, has discussed lengthily the
question and is therefore subject to judicial review. In the case subject on whether or not, the cases, before Us involve a
of Avelino v. Cuenco6, this Court held that the exception to the political, or a judicial, question. I fully concur with his
rule that courts will not interfere with a political question conclusion that the question involved in these cases is
affecting another department is when such political question justiciable.
involves an issue as to the construction and interpretation of
the provision of the constitution. And so, it has been held that On the question now of whether or not the Constitution
the question of whether a constitution shall be amended or not proposed by the 1971 Constitutional Convention has been
is a political question which is not in the power of the court to validly ratified, I am reproducing herein pertinent portions of
decide, but whether or not the constitution has been legally my dissenting opinion in the plebiscite cases:
amended is a justiciable question.7
The ratification of the Constitution proposed by
My study on the subject of whether a question before the the 1971 Constitutional Convention must be
court is political or judicial, based on decisions of the courts in done in accordance with the provisions of
the United States — where, after all, our constitutional system Section 1, Article XV of the 1935 Constitution of
has been patterned to a large extent — made me arrive at the the Philippines, which reads:
considered view that it is in the power of this Court, as the
ultimate interpreter of the Constitution, to determine the "Section 1. The Congress in joint
validity of the proposal, the submission, and the ratification of session assembled by a vote of
any change in the Constitution. Ratification or non-ratification three fourths of all the Members of
of a constitutional amendment is a vital element in the the Senate and of the House of
procedure to amend the constitution, and I believe that the Representatives voting separately,
Court can inquire into, and decide on, the question of whether may propose amendments to the
or not an amendment to the constitution, as in the present Constitution or call a convention
cases, has been ratified in accordance with the requirements for that purpose. Such
prescribed in the Constitution that was amended. And so, in amendments shall be valid as part
the cases now before Us, I believe that the question of of this Constitution when approved
whether or not the Constitution proposed by the 1971 by a majority of the votes cast at
Constitutional Convention had been validly ratified or not is a an election at which the
justiciable question. amendments are submitted to the
people for their ratification."
It is in consonance with the abovequoted
provision of the 1935 Constitution that on March
16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose
amendments to the Constitution of the
Philippines. Sec. 7 of said Resolution No. 2
reads as follows:
"Section 7. The amendments
proposed by the Convention shall
be valid and considered part of the
Constitution when approved by a
majority of the votes cast in an
election at which they are
submitted to the people for their
ratification pursuant to Article XV
of the Constitution.
It follows that from the very resolution of the
Congress of the Philippines which called for the
1971 Constitutional Convention, there was a
clear mandate that the amendments proposed
by the 1971 Convention, in order to be valid and
considered part of the Constitution, must be
approved by majority of the votes cast in an
election at which they are submitted to the
people for the ratification as provided in the
Constitution.
This Court, in the case of Tolentino vs.
Commission Elections, 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 ... ."
xxx xxx xxx
"As to matters not related to its
internal operation and the
performance of its assigned
mission to propose amendments to
the Constitution, the Convention
and its officers and members
are all subject to all the provisions
of the existing Constitution. Now
we hold that even as to its
latter task of proposing
amendments to the Constitution, it
is subject to the provisions of
Section 1 of Article XV."
In Proclamation No. 1102, issued on January
17, 1973, the President of the Philippines
certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561
members of the barangays voted for the
adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and
on the basis of the overwhelming majority of the
votes cast by the members of all the barangays
throughout the Philippines, the President
proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has
thereby come into effect.
It is very plain from the very wordings of
Proclamation No. 1102 that the provisions of
Section 1 of Article XV of the Constitution of
1935 were not complied with. It is not necessary
that evidence be produced before this Court to
show that no elections were held in accordance
with the provisions of the Election Code.
Proclamation No. 1102 unequivocally states that
the proposed Constitution of 1972 was voted
upon by the barangays. It is very clear,
therefore, that the voting held in these
barangays is not the election contemplated in
the provisions of Section 1, Article XV, of the
1935 Constitution. The election contemplated in
said constitutional provision is an election held in
accordance with the provisions of the election
law, where only the qualified and registered
voters of the country would cast their votes,
where official ballots prepared for the purpose
are used, where the voters would prepare their
ballots in secret inside the voting booths in the
polling places established in the different
election precincts throughout the country, where
the election is conducted by election inspectors
duly appointed in accordance with the election
law, where the votes are canvassed and
reported in a manner provided for in the election
law. It was this kind of election that was held on
May 14, 1935, when the Constitution of 1935
was ratified; on April 30, 1937, when the
amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18,
1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947
when the Parity Amendment to the Constitution
was ratified; and on November 14, 1967 when
the amendments to the Constitution to increase
the number of Members of the House of
Representatives and to allow the Members of
Congress to run in the elections for Delegates to
the Constitutional Convention of 1971 were
rejected.
I cannot see any valid reason why the practice
or procedure in the past, in implementing the
constitutional provision requiring the holding, of
an election to ratify or reject an amendment to
the Constitution, has not been followed in the
case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines
cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the
barangays and make said result the basis for
proclaiming the ratification of the proposed
constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete
disregard or in violation, of the provisions of
Section 1 of Article X of the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore,
that on the question as to whether or not the
people would still like a plebiscite to be called to
ratify the new Constitution, 14,298,814 members
of the barangays answered that there was no
need for a plebiscite but that the vote of the
barangays should be considered a vote in a
plebiscite. It would thus appear that the
barangays assumed the power to determine
whether a plebiscite as ordained in the
Constitution be held or not. Indeed, the provision
of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are
not the votes contemplated in Section 1 of
Article XV of the 1935 Constitution. The votes
contemplated in said constitutional provision are
votes obtained through the election processes
as provided by law.
"An election is the embodiment of
the popular will, the expression of
the sovereign power of the people.
In common parlance, an election is
the act of casting and receiving the
ballots, counting them, and making
the return." (Hontiveros vs.
Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an
electoral body at the time and
substantially in the manner and
with the safeguards provided by
law with respect to some question
or issue. (Leffel v. Brown, Com.
P1., 159 N.E. 2d 807, 808 cited in
29 C.J.S. 13 at footnote 6.5).
"... the statutory method
whereby qualified voters or
electors pass on various public
matters submitted to them — the
election of officers, national, state,
county, township — the passing on
various other questions submitted
for their determination." (29 C.J.S.
13, citing 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 Phrases,
Permanent Edition, p. 234).
"The right to vote may be
exercised only on compliance with
such statutory requirements as
have been set by the legislature."
(People ex rel. Rago v. Lipsky, 63
N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d
612, 11 Utah 2d 169 in 29 C.J.S.
38). (Emphasis supplied).
In this connection I herein quote the pertinent
provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections
of public officers except barrio officials and
plebiscites shall be conducted in the manner
provided by this Code."
"Sec 99. Necessity of registration to be entitled
to vote. — In order that a qualified voter may
vote in any regular or special election or in any
plebiscite, he must be registered in the
permanent list of voters for the city, municipality
or municipal district in which he resides:
Provided, that no person shall register more
than once without first applying for cancellation
of his previous registration." (Emphasis
supplied). (Please see also Sections 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 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." (BIack'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 far as they were
disposed to allow them to be
exercised at all. By the constitution
which they establish, they not only
tie up the hands of their official
agencies, but their own hands as
well; and neither the officers of the
State, nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
fundamental law." (Cooley's
Constitutional Limitations, 8th
Edition, Vol. I, p. 81 cited in
Graham v. Jones, 3 So. 2d. 761,
782).
"The theory that a favorable vote
by the electorate, however
unanimous, on a proposal to
amend a constitution, may cure,
render innocuous, all or any
antecedent failures to observe
commands of that Constitution in
respect of the formulation or
submission of proposed
amendments thereto, does not
prevail in Alabama, where the
doctrine of the stated theory was
denied, in obvious effect, by the
pronouncement 60 years ago of
broad, wholesome constitutional
principles in Collier v.
Frierson, supra, as quoted in the
original opinion, ante. The people
themselves are bound by the
Constitution; and, being so bound,
are powerless, whatever their
numbers, to change or thwart its
mandates, except through the
peaceful means of a constitutional
convention, or of an amendment
according to the mode therein
prescribed, or through the exertion
of the original right of revolution.
"The Constitution may be set aside
by revolution, but it can only be
amended in the way it provides,"
said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W.
99, 103. (Johnson vs. Craft, et al.,
87 So. 375, 385, 387, On
Rehearing).
"The fact that a majority voted for
the amendment, unless the vote
was taken as provided by the
Constitution, is not sufficient to
make a change in that instrument.
Whether a proposed amendment
has been legally adopted is a
judicial question, for the court must
uphold and enforce the
Constitution as written until it is
amended in the way which it
provides for." Wood v. Tooker, 15
Mont. 8, 37 Pac 840, 25 L.R.A.
560; McConaughty v. State, 106
Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal.
499, 11 Pac. 3; Utter v. Mosely, 16
Idaho 274, 100 Pac. 1958, 133
Am. St. Rep. 94, 18 Ann. Cas.
723. (McCreary v. Speer, 162 S.W.
99, 104).
"Provisions of a constitution
regulating its own amendment, ...
are not merely directory, but are
mandatory; and a strict
observance of every substantial
mandatory; and a strict
observance of every substantial
requirement is essential to the
validity of the proposed
amendment. These provisions are
as binding on the people as on the
legislature, and the former are
powerless by vote of acceptance
to give legal sanction to an
amendment the submission of
which was made in disregard of
the limitations contained in the
constitution." (16 C.J.S. 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 with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest
against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots
during the proceedings in the trial court, it
appeared that Monsale had obtained 2,877
votes while Nico obtained 2,276 votes, or a
margin of 601 votes in favor of Monsale. The
Court of First Instance of Iloilo decided the
election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision
of the lower court. This Court declared that
because Monsale withdrew his certificate of
candidacy, his attempt to revive it by
withdrawing his withdrawal of his certificate of
candidacy did not restore the effectiveness of
his certificate of candidacy, and this Court
declared Nico the winner in spite of the fact that
Monsale had obtained more votes than he.
We have cited this Monsale case to show that
the will of the majority of the voters would not be
given effect, as declared by this Court, if certain
legal requirements have not been complied with
in order to render the votes valid and effective to
decide the result of an election.
And so, in the cases now before this Court, the
fact that the voting in the citizens assemblies
(barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of
the amendment to the Constitution, the
affirmative votes cast in those assemblies can
not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in
spite of the fact that it was reported that
14,976,561 members of the citizens assemblies
voted for the adoption as against 743,869 for the
rejection, because the votes thus obtained were
not in accordance with the provisions of Section
1 of Article XV of the 1935 Constitution of the
Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds
against the holding of the plebiscite on January
15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the
people to exercise their right of choice because
of the existence of martial law in our country.
The same ground holds true as regards to the
voting of the barangays on January 10 to 15,
1973. More so, because by General Order No.
20, issued on January 7, 1973, the President of
the Philippines ordered "that the provisions of
Section 3 of Presidential Decree No. 73 in so far
as they allow free public discussion of the
proposed constitution, as well as my order of
December 17, 1972 temporarily suspending the
effects of Proclamation No. 1081 for the purpose
of free and open debate on the proposed
constitution, be suspended in the meantime." It
is, therefore, my view that voting in the
barangays on January 10, 1973 was not free,
and so this is one added reason why the results
of the voting in the barangays should not be
made the basis for proclamation of the
ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No.
1102 repugnant to the 1935 Constitution, and so
it is invalid, and should not be given effect. The
Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered
as not yet ratified by the people of this Republic,
and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in
the citizens assemblies was a substantial compliance with the
provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of
Article XV of the 1935 Constitution is that "to be valid,
amendments must gain the approval of the majority
recognition of the democratic postulate that sovereign resides
in the people." It is not disputed that in a democratic
sovereignty resides in the people. But the term "people" must
be understood in its constitutional meaning, and they are
"those persons who are permitted by the Constitution to
exercise the elective franchise."8 Thus, in Section 2 of Article
VII of the 1935 Constitution, it is provided that "the President
shall hold his office during a term of four years and, together
with the 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. Crescini9, this Court, speaking through Mr.
Justice Johnson, said, "In democracies, the people,
combined, represent the sovereign power of the State. Their
sovereign authority is expressed through the ballot, of the
qualified voters, in duly appointed elections held from time to
time, by means of which they choose their officials for definite
fixed periods, and to whom they entrust, for the time being, as
their representatives, the exercise of the powers of
government." In the case of Moya v. Del Fierro, 10 this Court,
speaking through Mr. Justice Laurel, said, "As long as popular
government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies
wrought by the people through their Constitution in the interest
of good government and the common weal. Republicanism, in
so far as it implies the adoption of a representative type of
government, necessarily points to the enfranchised citizen as
a particle of popular sovereignty and as the ultimate source of
the established authority." And in the case of Abanil v. Justice
of the Peace of Bacolod, 11 this Court said: "In the scheme of
our present republican government, the people are allowed to
have a voice therein through the instrumentality of suffrage to
be availed of by those possessing certain prescribed
qualifications. The people, in clothing a citizen with the
elective franchise for the purpose of securing a consistent and
perpetual administration of the government they ordain,
charge him with the performance of a duty in the nature of a
public trust, and in that respect constitute him a
representative of the whole people. This duty requires that the
privilege thus bestowed exclusively for the benefit of the
citizen or class of citizens professing it, but in good faith and
with an intelligent zeal for the general benefit and welfare of
the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no
question, therefore, that when we talk of sovereign people,
what is meant are the people who act through the duly
qualified and registered voters who vote during an election
that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the
1935 Constitution should be construed along with the term
"election" as used in the Provisions of Section 4 of the
Philippine Independence Act of the Congress of the United
States, popularly known as the 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.
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 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
affirmative votes in the citizens assemblies as a true and
correct expression by the people of their approval, or
acceptance, of the proposed Constitution. I have my serious
doubts regarding the freedom of the people to express their
views regarding the proposed Constitution during the voting in
the citizens assemblies, and I have also my serious doubts
regarding the truthfulness and accuracy of the reports of the
voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study
of the records of these cases, particularly with respect to the
reports of the voting in the citizens assemblies. Perhaps, it
may be said that the people, or the inhabitants of this country,
have acquiesced to the new Constitution, in the sense that
they have continued to live peacefully and orderly under the
government that has been existing since January 17, 1973
when it was proclaimed that the new Constitution came into
effect. But what could the people do? In the same way that
the people have lived under martial law since September 23,
1972, they also have to live under the government as it now
exists, and as it has existed since the declaration of martial
law on September 21, 1972, regardless of what Constitution is
operative — whether it is the 1935 Constitution or the new
Constitution. Indeed, there is nothing that the people can do
under the circumstances actually prevailing in our country
today — circumstances, known to all, and which I do not
consider necessary to state in this opinion. I cannot agree,
therefore, with my worthy colleagues in the Court who hold
the view that the people have accepted the new Constitution,
and that because the people have accepted it, the new
Constitution should be considered as in force, regardless of
the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the
1971 Constitutional Convention has not come into effect. I do
not say, however, that the proposed Constitution is invalid. To
me, the validity of the proposed Constitution is not in issue in
the cases before Us. What the petitioners assail is not the
validity of the proposed Constitution but the validity of
Presidential Proclamation No. 1102 which declares the
proposed Constitution as having been ratified and has come
into effect. It being my considered view that the ratification of
the proposed Constitution, as proclaimed in Proclamation No.
1102, is not in accordance with the provisions of Section 1 of
Article XV, of the 1935 Constitution, I hold that Proclamation
No. 1102 is invalid and should not be given force and effect.
Their proposed Constitution, therefore, should be considered
as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in
conformity with Section 1 of Article XV of the 1935
Constitution. Incidentally, I must state that the Constitution is
still in force, and this Court is still functioning under the 1935
Constitution.
I sincerely believe that the proposed Constitution may still be
submitted to the people in an election or plebiscite held in
accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution. In fact, as we have adverted to in this
opinion, this was the mandate of Congress when, on March
16, 1967, it passed Resolution No. 2 calling a convention to
propose amendments to the 1935 Constitution. The Court
may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of
our Republic since the declaration of martial law is not a
revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution.
The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional
government. It being my view that the 1935 Constitution is still
in force, I believe Congress may still convene and pass a law
calling for an election at which the Constitution proposed by
the 1971 Constitutional Convention will be submitted to the
people their ratification or rejection. A plebiscite called
pursuant to Section 1 of Article XV of the 1935 Constitution is
an assurance to our people that we still have in our country
the Rule of Law and that the democratic system of
government that has been implanted in our country by the
Americans, and which has become part of our social and
political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by
a desire on my part to bring about stability in democratic and
constitutional system in our country. I feel that if this Court
would give its imprimatur to the ratification of the proposed
Constitution, as announced in Proclamation No. 1102, it being
very clear that the provisions of Section 1 of Article XV of the
1935 Constitution had not been complied with, We will be
opening the gates for a similar disregard of the Constitution in
the future. What I mean is that if this Court now declares that
a new Constitution is now in force because the members of
the citizens assemblies had approved the said new
Constitution, although that approval was not in accordance
with the procedure and the requirements prescribed in the
1935 Constitution, it can happen again in some future time
that some amendments to the Constitution may be adopted,
even in a manner contrary to the existing Constitution and the
law, and then said proposed amendment is submitted to the
people in any manner and what will matter is that a basis is
claimed that there was approval by the people. There will not
be stability in our constitutional system, and necessarily no
stability in our government. As a member of this Court I only
wish to contribute my humble efforts to prevent the happening
of such a situation in the future.
It appearing to me that the announced ratification of the
proposed Constitution through the voting in the citizens
assemblies is a clear violation of the 1935 Constitution, what I
say in this opinion is simply an endeavor on my part to be true
to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and
statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers
of the purity and sanctity of our Constitution, and
the protection and vindication of popular rights
will be safe and secure in their reverential
guardianship.
I only wish to help prevent, if I can, democracy and the
liberties of our people from vanishing in our land, because, as
Justice George Sutherland of the U. S. Supreme Court said:
 (t)he saddest epitaph which can be carved in
memory of a vanished liberty is that it was lost
because its possessors failed to stretch forth a
saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief
Justice in the opinion that he has written in these cases. Along
with him, I vote to deny the motion to dismiss and give due
course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such
transcendental significance is likely to confront this Court in
the near or distant future as that posed by these petitions. For
while the specific substantive issue is the validity of
Presidential Proclamation No. 1102, an adverse judgment
may be fraught with consequences that, to say the least, are
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
position taken by the Chief Justice as set forth with his usual
lucidity and thoroughness has, on the whole, my concurrence,
subject, of course, to reservations insofar as it contains views
and nuances to which I have in the past expressed doubts.
Nonetheless, I feel that a brief expression of the reasons for
the stand I take would not be amiss.
In coping with its responsibility arising from the function of
judicial review, this Court is not expected to be an oracle
given to utterances of eternal verities, but certainly it is more
than just a keen but passive observer of the contemporary
scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the
formation of government policy, but as an arbiter of its legality.
Even then, there is realism in what Lerner did say about the
American Supreme Court as "the focal point of a set of
dynamic forces which [could play] havoc with the landmarks of
the American state and determine the power configuration of
the day."3 That is why there is this caveat. In the United States
as here, the exercise of the power of judicial review is
conditioned on the necessity that the decision of a case or
controversy before it so requires. To repeat, the Justices of
the highest tribunal are not, as Justice Frankfurter made clear,
"architects of policy. They can nullify the policy of others, they
are incapable of fashioning their own solutions for social
problems."4 Nonetheless, as was stressed by Professors
Black5 and Murphy,6 a Supreme Court by the conclusion it
reaches and the decision it renders does not merely check the
coordinate branches, but also by its approval stamps with
legitimacy the action taken. Thus in affirming constitutional
supremacy, the political departments could seek the aid of the
judiciary. For the assent it gives to what has been done
conduces to its support in a regime where the rule of law
holds sway. In discharging such a role, this Court must
necessarily take in account not only what the exigent needs of
the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the
pitfall of lack of understanding of the dominant forces at work
to seek a better life for all, especially those suffering from the
pangs of poverty and disease, by a blind determination to
adhere to the status quo. It would be tragic, and a clear case
of its being recreant to its trust, if the suspicion can with
reason be entertained that its approach amounts merely to a
militant vigilantism that is violently opposed to any form of
social change. It follows then that it does not suffice that
recourse be had only to what passes for scholarship in the law
that could be marred by inapplicable erudition and narrow
legalism. Even with due recognition, such factors, however, I
cannot, for reasons to be set more lengthily and in the light of
the opinion of the Chief Justice, reach the same result as the
majority of my brethren. For, in the last analysis, it is my firm
conviction that the institution of judicial review speaks too
clearly for the point to be missed that official action, even with
due allowance made for the good faith that invariably inspires
the step taken, has to face the gauntlet of a court suit
whenever there is a proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional
tradition when, at the outset, they would seek a dismissal of
these petitions. For them, the question raised is political and
thus beyond the jurisdiction of this Court. Such an approach
cannot be indicted for unorthodoxy. It is implicit in the concept
of the rule of law that rights belong to the people and the
government possesses powers only. Essentially then, unless
such an authority may either be predicated on express or
implied grant in the Constitution or the statutes, an exercise
thereof cannot survive an inquiry as to its validity.
Respondents through Solicitor-General Mendoza would deny
our competence to proceed further. It is their view, vigorously
pressed and plausibly asserted, that since what is involved is
not merely the effectivity of an amendment but the actual
coming into effect of a new constitution, the matter is not
justiciable. The immediate reaction is that such a contention is
to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the
solemn duty of the judiciary to determine what the law is and
to apply it in cases and controversies that call for
decision.7 Since the Constitution pre-eminently occupies the
highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is
vested. With the 1935 Constitution containing, as above
noted, an explicit article on the subject of amendments, it
would follow that the presumption to be indulged in is that the
question of whether there has been deference to its terms is
for this Court to pass upon. What is more, the
Gonzales,8 Tolentino9 and Planas 10 cases speak
unequivocally to that effect. Nor is it a valid objection to this
conclusion that what was involved in those cases was the
legality of the submission and not ratification, for from the very
language of the controlling article, the two vital steps are
proposal and ratification, which as pointed out in Dillon v.
Gloss, 11 "cannot be treated as unrelated acts, but as
succeeding steps in a single endeavor." 12 Once an aspect
thereof is viewed as judicial, there would be no justification for
considering the rest as devoid of that character. It would be
for me then an indefensible retreat, deriving no justification
from circumstances of weight and gravity, if this Court were to
accede to what is sought by respondents and rule that the
question before us is political.
On this point, it may not be inappropriate to refer to a separate
opinion of mine in Lansang v. Garcia. 13 Thus: "The term has
been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a
case appropriately subject to its cognizance, as to which there
has been a prior legislative or executive determination to
which deference must be paid. It has likewise been employed
loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof. If
to be delimited with accuracy, "political questions" should refer
to such as would under the Constitution be decided by the
people in their sovereign capacity or in regard to full
discretionary authority is vested either in the President or
Congress. It is thus beyond the competence of the judiciary to
pass upon. Unless clearly falling within the formulation, the
decision reached by the political branches whether in the form
of a congressional act or an executive order could be tested in
court. Where private rights are affected, the judiciary has no
choice but to look into its validity. It is not to be lost sight of
that such a power comes into play if there be an appropriate
proceeding that may be filed only after each coordinate
branch has acted. Even when the Presidency or Congress
possesses plenary powers, its improvident exercise or the
abuse thereof, if shown, may give rise to a justiciable
controversy. For the constitutional grant of authority is usually
unrestricted. There are limits to what may be done and how it
is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the
question of whether or not either of the two coordinate
branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than
political." 14 The view entertained by Professor Dodd is not too
dissimilar. For him such a term "is employed to designate
certain types of functions committed to the political organs of
government (the legislative and executive departments, or
either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial
decisions, both federal and state, he could conclude: "The
field of judicial nonenforceability is important, but is not large
when contrasted with the whole body of written constitutional
texts. The exceptions from judicial enforceability fall primarily
within the field of public or governmental interests." 16 Nor was
Professor Weston's formulation any different. As was
expressed by him: "Judicial questions, in what may be thought
the more useful sense, are those which the sovereign has set
to be decided in the courts. Political questions, similarly, are
those which the sovereign has entrusted to the 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 Bickel 18 of
Yale and Professor Freund 19 of Harvard, both of whom in turn
are unabashed admirers of Justice Brandeis. Whatever be the
merit inherent in their lack of enthusiasm for a more active
and positive role that must be played by the United States
Supreme Court in constitutional litigation, it must be judged in
the light of our own history. It cannot be denied that from the
well nigh four decades of constitutionalism in the Philippines,
even discounting an almost similar period of time dating from
the inception of American sovereignty, there has sprung a
tradition of what has been aptly termed as judicial activism.
Such an approach could be traced to the valedictory address
before the 1935 Constitutional Convention of Claro M. Recto.
He spoke of the trust reposed in the judiciary in these words:
"It is one of the paradoxes of democracy that the people at
times place more confidence in instrumentalities of the State
other than those directly chosen by them for the exercise of
their sovereignty." 20 It would thus appear that even then this
Court was expected not to assume an attitude of timidity and
hesitancy when a constitutional question is posed. There was
the assumption of course that it would face up to such a task,
without regard to political considerations and with no thought
except that of discharging its trust. Witness these words
Justice Laurel in an early landmark case, People v.
Vera, 21 decided in 1937: "If it is ever necessary for us to make
vehement affirmance during this formative period of political
history, it is that we are independent of the Executive no less
than of the Legislative department of our government —
independent in the performance of our functions, undeterred
by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of
our sworn duty as we see it and as we understand it." 22 The
hope of course was that such assertion of independence
impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake
that what elicits approval on the part of our people of a
judiciary ever alert to inquire into alleged breaches of the
fundamental law is the realization that to do so is merely to do
what is expected of it and that thereby there is no invasion of
spheres appropriately belonging to the political branches. For
it needs to be kept in kind always that it can act only when
there is a suit with proper parties before it, wherein rights
appropriate for judicial enforcement are sought to be
vindicated. Then, too, it does not approach constitutional
questions with dogmatism or apodictic certainty nor view them
from the shining cliffs of perfection. This is not to say though
that it is satisfied with an empiricism untroubled by the search
for jural consistency and rational coherence. A balance has to
be struck. So juridical realism requires. Once allowance made
that for all its care and circumspection this Court manned by
human beings fettered by fallibility, nonetheless earnestly and
sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution
be obeyed is easy to understand. It has not in the past shirked
its responsibility to ascertain whether there has been
compliance with and fidelity to constitutional requirements.
Such is the teaching of a host of cases from Angara v.
Electoral
Commission  23 to Planas v. Commission on Elections. 24 It
should continue to exercise its jurisdiction, even in the face of
a plausible but not sufficiently persuasive insistence that the
matter before it is political.
Nor am I persuaded that the reading of the current drift in
American legal scholarship by the 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: "Whether another method of
enforcing the Constitution could have been devised, the short
answer is that no such method developed. The argument over
the constitutionality of judicial review has long since been
settled by history. The power and duty of the Supreme Court
to declare statutes or executive action unconstitutional in
appropriate cases is part of the living Constitution. 'The course
of constitutional history,' Mr. Justice Frankfurter recently
remarked, 'has cast responsibilities upon the Supreme Court
which it would be "stultification" for it to evade.' " 28 Nor is it
only Dean Rostow who could point Frankfurter, reputed to
belong to the same school of thought opposed to judicial
activism, if not its leading advocate during his long stay in the
United States Supreme Court, as one fully cognizant of the
stigma that attaches to a tribunal which neglects to meet the
demands of judicial review. There is a statement of similar
importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously
perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.' " 29 Professor Konefsky,
like Dean Rostow, could not accept characterization of judicial
review as undemocratic. Thus his study of Holmes and
Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it
ought also to be remembered that architects of that system
did not equate constitutional government with unbridled
majority rule. Out of their concern for political stability and
security for private rights, ..., they designed a structure whose
keystone was to consist of barriers to the untrammeled
exercise of power by any group. They perceived no
contradiction between effective government and constitutional
checks. To James Madison, who may legitimately be
regarded as the philosopher of the Constitution, the scheme
of mutual restraints was the best answer to what he viewed as
the chief problem in erecting a system of free representative
government: 'In framing a government which is to be
administered by men over men, the great difficulty lies in this:
you must first enable the government to control the governed;
and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review.
Could it be that the tone of discontent apparent in the writings
of eminent authorities on the subject evince at the most fears
that the American Supreme Court might overstep the bounds
allotted to the judiciary? It cannot be a denial of the fitness of
such competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate to the
decision of a case before them. That is why it has been
correctly maintained that notwithstanding the absence of any
explicit provision in the fundamental law of the United States
Constitution, that distinguished American constitutional
historian, Professor Corwin, could rightfully state that judicial
review "is simply incidental to the power of courts to interpret
the law, of which the Constitution is part, in connection with
the decision of cases." 31 This is not to deny that there are
those who would place the blame or the credit, depending
upon one's predilection, on Marshall's epochal opinion
in Marbury v. Madison. 32 Curtis belonged to that persuasion.
As he put it: "The problem was given no answer by the
Constitution. A hole was left where the Court might drive in
the peg of judicial supremacy, if it could. And that is what John
Marshall did." 33 At any rate there was something in the soil of
American juristic thought resulting in this tree of judicial power
so precariously planted by Marshall striking deep roots and
showing wonderful vitality and hardiness. It now dominates
the American legal scene. Through it, Chief Justice Hughes,
before occupying that exalted position, could state in a
lecture: "We are under a Constitution, but the Constitution is
what the judges say it is ... ." 34 The above statement is more
than just an aphorism that lends itself to inclusion in judicial
anthologies or bar association speeches. It could and did
provoke from Justice Jackson, an exponent of the judicial
restraint school of thought, this meaningful query: "The
Constitution nowhere provides that it shall be what the judges
say it is. How, did it come about that the statement not only
could be but could become current as the most
understandable comprehensive summary of American
Constitutional law?" 35 It is no wonder that Professor Haines
could pithily and succinctly sum up the place of the highest
American tribunal in the scheme of things in this wise: "The
Supreme Court of the United States has come to be regarded
as the unique feature of the American governmental
system." 36 Let me not be misunderstood. There is here no
attempt to close one's eyes to a discernible tendency on the
part of some distinguished faculty minds to look askance at
what for them may be inadvisable extension of judicial
authority. For such indeed is the case as reflected in two
leading cases of recent vintage, Baker v. Carr, 37 decided in
1962 and Powell v. MacCormack, 38 in 1969, both noted in the
opinion of the Chief Justice. The former disregarded the
warning of Justice Frankfurter in Colegrove v. Green 39 about
the American Supreme Court declining jurisdiction on the
question of apportionment as to do so would cut very deep
into the very being of Congress." 40 For him, the judiciary
"ought not to enter this political thicket." Baker has since then
been followed; it has spawned a host of cases. 41 Powell, on
the question of the power of a legislative body to exclude from
its ranks a person whose qualifications are uncontested, for
many the very staple of what is essentially political, certainly
goes even further than the authoritative Philippine decision
of Vera v. Avelino, 42 It does look then that even in the United
States, the plea for judicial 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 review articles, the reaction ranging
from guarded conformity to caustic criticism. 46 There was, to
be sure, no clear call to a court in effect abandoning the
responsibility incumbent on it to keep governmental agencies
within constitutional channels. The matter has been put in
temperate terms by Professor Frank thus: "When allowance
has been made for all factors, it nevertheless seems to me
that the doctrine of political questions ought to be very sharply
confined to where the functional reasons justify it and that in a
give involving its expansion there should be careful
consideration also of the social considerations which may
militate against it. The doctrine has a certain specious charm
because of its nice intellectualism and because of the fine
deference it permits to expertise, to secret knowledge, and to
the prerogatives of others. It should not be allowed to grow as
a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal,
coming from such impeccable sources of the worth and
significance of judicial review in the United States. I cannot
resist the conclusion then that the views advanced on this
subject by distinguished counsel for petitioners, with Senators
Lorenzo M. Tañada and Jovito Salonga at the van, rather than
the advocacy of the 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
few in number, which require that there be obedience to the
literal terms of the applicable provision. It is understandable
why it should be thus. If the Constitution is the supreme law,
then its mandate must be fulfilled. No evasion is tolerated.
Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or
disregarded. This is not to deny that a recognition conclusive
effect attached to the electorate manifesting its will to vote
affirmatively on the amendments proposed poses an obstacle
to the judiciary being insistent on the utmost regularity. Briefly
stated, substantial compliance is enough. A great many
American State decisions may be cited in support of such a
doctrine. 50
Even if the assumption be indulged in that Article XV is not
phrased in terms too clear to be misread, so that this Court is
called upon to give meaning and perspective to what could be
considered words of vague generality, pregnant with
uncertainty, still whatever obscurity it possesses is illumined
when the light of the previous legislation is thrown on it. In the
first Commonwealth Act, 51 submitting to the Filipino people for
approval or disapproval certain amendments to the original
ordinance appended to the 1935 Constitution, it was made
that the election for such purpose was to "be conducted in
conformity with the provisions of the Election Code insofar as
the same may be applicable." 52 Then came the
statute, 53 calling for the plebiscite on the three 1940
amendments providing for the plebiscite on the three 1930
amendments providing for a bicameral Congress or a Senate
and a House of Representatives to take the place of a
unicameral National Assembly, 54 reducing the term of the
President to four years but allowing his 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 Act 58 which specifically made
applicable the then Election Code. 59 There is a similar
provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional
Convention, saw to it that there be an increase in the
membership of the House of Representatives a maximum of
one hundred eighty and assured the eligibility of senators and
representatives to become members of such constituent body
without forfeiting their seats, as proposed amendments to be
voted on in the 1967 elections. 61 That is the consistent course
of interpretation followed by the legislative branch. It is most
persuasive, if not controlling. The restraints thus imposed
would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional
Convention or under his martial law prerogatives, he was not
devoid of power to specify the mode of ratification. On two
vital points, who can vote and how they register their will,
Article XV had been given a definitive construction. That is
why I fail to see sufficient justification for this Court affixing the
imprimatur of its approval on the mode employed for the
ratification of the revised Constitution as reflected in
Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the
failure to comply with the requirements of Article XV.
Independently of the lack of validity of the ratification of the
new Constitution, if it be accepted by the people, in whom
sovereignty resides according to the Constitution, 62 then this
Court cannot refuse to yield assent to such a political decision
of the utmost gravity, conclusive in its effect. Such a
fundamental principle is meaningless if it does not imply, to
follow Laski, that the nation as a whole constitutes the "single
center of ultimate reference," necessarily the possessor of
that "power that is able to resolve disputes by saying the last
word." 63 If the origins of the democratic polity enshrined in the
1935 Constitution with the declaration that the Philippines is a
republican state could be traced back to Athens and to Rome,
it is no doubt true, as McIver pointed out, that only with the
recognition of the nation as the separate political unit in public
law is there the juridical recognition of the people composing it
"as the source of political authority." 64 From them, as Corwin
did stress, emanate "the highest possible embodiment of
human will," 65 which is supreme and must be obeyed. To
avoid any confusion and in the interest of clarity, it should be
expressed in the manner ordained by law. Even if such is not
the case, however, once it is manifested, it is to be accepted
as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit.
Its officials must act accordingly. No agency is exempt such a
duty, not even this Court. In that sense, the lack of regularity
in the method employed to register its wishes is fatal in its
consequences. Once the fact of acceptance by people of a
new fundamental law is made evident, the judiciary is left with
no choice but to accord it recognition. The obligation to render
it obeisance falls on the courts as well.
There are American State decisions that enunciate such a
doctrine. While certainly not controlling, they are not entirely
bereft of persuasive significance. In Miller v.
Johnson, 66 decided in 1892, it was set forth in the opinion of
Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the
purpose of framing a new constitution and the election of
delegates. It provided that before any form of constitution
made by them should become operative, it should be
submitted to the vote of the state and ratified by a majority of
those voting. The constitution then in force authorized the
legislature, the preliminary steps having been taken, to call a
convention "for the purpose of readopting, amending, or
changing" it contained no provision giving the legislature the
power to require a submission of its work to a vote of the
people. The convention met in September, 1890. By April,
1891, it completed a draft of a constitution, submitted it to a
popular vote, and then adjourned until September following.
When the convention reassembled, the delegates made
numerous changes in instrument. As thus amended, it was
promulgated by the convention of September 28, 1891, as the
new constitution. An action was brought to challenge its
validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of
men, not selected by the people according to the forms of law,
were to formulate an instrument and declare it the
constitution, it would undoubtedly be the duty of the courts to
declare its work a nullity. This would be revolution, and this
the courts of the existing government must resist until they are
overturned by power, and a new government established. The
convention, however, was the offspring of law. The instrument
which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It
is a matter of current history that both the executive and
legislative branches of the government have recognized its
validity as a constitution, and are now daily doing so. ... While
the judiciary should protect the rights of the people with great
care and jealousy, because this is its duty, and also because;
in times of great popular excitement, it is usually their last
resort, yet it should at the same time be careful not to
overstep the proper bounds of its power, as being perhaps
equally dangerous; and especially where such momentous
results might follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty requires, the
overthrow of the work of the convention." 67 In Taylor v.
Commonwealth, 68 a 1903 decision, it was contended that the
Virginia Constitution reclaimed in 1902 is invalid as it was
ordained and promulgated by the convention without being
submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice
Harrison: "The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the
people of the state to revise and amend the Constitution of
1869. The result of the work of the convention has been
recognized, accepted, and acted upon as the only valid
Constitution of the state by the Governor in swearing fidelity to
it and proclaiming it, as directed thereby; by the Legislature in
its formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the convention which
assembled in the city of Richmond on the 12th day of June,
1901, as the Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and the
people in their primary capacity by peacefully accepting it and
acquiescing in it, by registering as voters under it to the extent
of thousands throughout the state, and by voting, under its
provisions, at a general election for their representatives in the
Congress of the United States. The Constitution having been
thus acknowledged and accepted by the office administering
the government and by the people of the state, and there
being no government in existence under the Constitution of
1869 opposing or denying its validity, we have no difficulty in
holding that the Constitution in question, which went into
effect at noon on the 10th day of July, 1902, is the only
rightful, valid, and existing Constitution of this state, and that
to it all the citizens of Virginia owe their obedience and loyal
allegiance." 69
It cannot be plausibly asserted then that premises valid in law
are lacking for the claim that the revised Constitution has
been accepted by the Filipino people. What is more, so it has
been argued, it is not merely a case of its being implied.
Through the Citizens Assemblies, there was a plebiscite with
the result as indicated in Proclamation No. 1102. From the
standpoint of respondents then, they could allege that there
was more than just mere acquiescence by the sovereign
people. Its will was thus expressed formally and unmistakably.
It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining
its preference. Nor is the fact that Filipinos of both sexes
above the age of fifteen were given the opportunity to vote to
be deplored. The greater the base of mass participation, the
more there is fealty to the democratic concept. It does
logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This
Court is to respect what had thus received the people's
sanction. That is not for me though whole of it. Further
scrutiny even then is not entirely foreclosed. There is still an
aspect that is judicial, an inquiry may be had as to whether
such indeed was the result. This is no more than what the
courts do in election cases. There are other factors to bear in
mind. The fact that the President so certified is 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
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.
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.
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 sought to be annulled is
Proclamation No. 1102, what petitioners really
seek to invalidate is the new Constitution", and
their actions must be dismissed, because:
— "the Court may not inquire into the validity of
the procedure for ratification" which
is "political in character" and that "what is sought
to be invalidated is not an act of the President
but of the people;
— "(T)he fact of approval of the new
Constitution by an overwhelming majority of the
votes cast as declared and certified in
Proclamation No. 1102 is conclusive on the
courts;
— "Proclamation No. 1102 was issued by the
President in the exercise of legislative power
under martial law. ... Alternatively, or
contemporaneously, he did so as "agent" of the
Constitutional Convention;"
— "alleged defects, such as absence of secret
voting, enfranchisement of persons less than 21
years, non supervision (by) the Comelec are
matters not required by Article XV of the 1935
Constitution"; (sic)
— "after ratification, whatever defects there
might have been in the procedure are overcome
and mooted (and muted) by the fact of
ratification"; and
— "(A)ssuming finally that Article XV of the 1935
Constitution was not strictly followed, the
ratification of the new Constitution must
nonetheless be respected. For the procedure
outlined in Article XV was not intended to be
exclusive of other procedures, especially one
which contemplates popular and direct
participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in
annulling Proclamation No. 1102 would really be "invalidating
the new Constitution", the terms and premises of the issues
have to be defined.
— Respondents themselves assert that
"Proclamation No. 1102 ... is plainly
merely declaratory of the fact that the 1973
Constitution has been ratified and has come into
force.4
— The measure of the fact of ratification is
Article XV of the 1935 Constitution. This has
been consistently held by the Court in
the Gonzales:5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized
"that the provisions of Section 1 of Article XV of
the Constitution, dealing with the procedure or
manner of amending the fundamental law are
binding upon the Convention and the other
departments of the government. It must be
added that ... they are no less binding upon
the people."7
— In the same Tolentino case, this Court further
proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the
present Charter, any proposal for such
amendment which is not in conformity with
the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the
sanction of this Court."8
— As continues to be held by a majority of this
Court, proposed amendments to the Constitution
"should be ratified in only one way, that is, in an
election or plebiscite held in accordance with law
and participated in only by qualified and duly
registered voters"9 and under the supervision of
the Commission on Elections. 10
— Hence, if the Court declares Proclamation
1102 null and void because on its face, the
purported ratification of the proposed
Constitution has not faithfully nor substantially
observed nor complied with the mandatory
requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the
proposed new Constitution but would be simply
declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies
referendums does not pass the constitutional
test and that the proposed new Constitution
has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by
respondent to be "plainly merely declaratory" of
the disputed fact of ratification, they cannot
assume the very fact to be established and beg
the issue by citing the 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
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 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 session till it approves the legislative
measures most needed by the country.
Democracy is on trial in the Philippines, and
surely it will emerge victorious as a permanent
way of life in this country, if each of the great
branches of the Government, within its own
allocated sphere, complies with its own
constitutional duty, uncompromisingly and
regardless of difficulties.
Our Republic is still young, and the vital
principles underlying its organic structure should
be maintained firm and strong, hard as the best
of steel, so as to insure its growth and
development along solid lines of a stable and
vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority
judgment (declaring null and void the rental and export control
executive orders) likewise observed that "(T)he truth is that
under our concept of constitutional government, in times of
extreme perils more than in normal circumstances 'the various
branches, executive, legislative, and judicial,' given the ability
to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of
discharging its duty and responsibility has been considerably
lightened by the President's public manifestation of adherence
to constitutional processes and of working within the proper
constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme
Court is the final arbiter of the Constitution. It can and will
probably determine the validity of this Constitution. I did not
want to talk about this because actually there is a case
pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to
appointments, the matter falls under a general provision which
authorizes the Prime Minister to appoint additional members
to the Supreme Court. Until the matter of the new Constitution
is decided, I have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state
Supreme Court of Mississippi held that the questions of
whether the submission of the proposed constitutional
amendment of the State Constitution providing for an elective,
instead of an appointive, judiciary and whether the proposition
was in fact adopted, were justifiable and not political
questions, we may echo the words therein of Chief Justice
Whitfield that "(W)e do not seek a jurisdiction not imposed
upon us by the Constitution. We could not, if we would,
escape the exercise of that jurisdiction which the Constitution
has imposed upon us. In the particular instance in which we
are now acting, our duty to know what the Constitution of the
state is, and in accordance with our oaths to support and
maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one
which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my
colleagues' contrary views, we are faced with the hard choice
of maintaining a firm and strict — perhaps, even rigid — stand
that the Constitution is a "superior paramount law,
unchangeable by ordinary means" save in the particular mode
and manner prescribed therein by the people, who, in
Cooley's words, so "tied up (not only) the hands of their official
agencies, but their own hands as well" 18 in the exercise of
their sovereign will or a liberal and flexible stand that would
consider compliance with the constitutional article on the
amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at
bar, signifies that the Constitution may be amended in toto or
otherwise exclusively "by approval by a majority of the votes
cast an election at which the amendments are submitted to
the people for their ratification", 19 participated
in only by qualified and duly registered voters twenty-one
years of age or over 20 and duly supervised by the
Commission on Elections, 21 in accordance with the cited
mandatory constitutional requirements.
The alternative choice of a liberal stand would permit
a disregard of said requirements on the theory urged by
respondents that "the procedure outlined in Article XV
was not intended to be exclusive of other procedures
especially one which contemplates popular and direct
participation of the citizenry", 22 that the constitutional age and
literacy requirements and other statutory safeguards for
ascertaining the will of the majority of the people may likewise
be changed as "suggested, if not prescribed, by the people
(through the Citizens Assemblies) themselves", 23 and that the
Comelec is constitutionally "mandated to oversee ... elections
(of public officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first
declared in the historic 1803 case of Marbury vs.
Madison 25 the U.S. Supreme Court's power of judicial review
and to declare void laws repugnant to the Constitution, there
is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior
paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts,
alterable when the legislature shall please to alter it. If the
former part of the alternative be true, then a legislative act,
contrary to the Constitution, is not law; if the latter part be true,
then written constitutions are absurd attempts on the part of a
people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and
a third later in the 1936 landmark case of Angara vs. Electoral
Commission, 26 "(T)he Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the
limitations of good government and restrictions embodied in
our Constitution are real as they should be in any living
Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the
powers of government" placed upon the judiciary the great
burden of "determining the nature, scope and extent of such
powers" and stressed that "when the judiciary mediates to
allocate constitutional boundaries, it does not assert any
superiority over the other departments ... but only asserts the
solemn and sacred obligation entrusted to it by the
Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819
case of McCulloch vs. Maryland  27 the "climactic
phrase," 28 "we must never forget that it is a constitution we
are expounding," — termed by Justice Frankfurter as "the
single most important utterance in the literature of
constitutional law — most important because most
comprehensive and comprehending." 29 This enduring concept
to my mind permeated to this Court's exposition and rationale
in the hallmark case of Tolentino, wherein we rejected the
contentions on the Convention's behalf "that the issue ... is a
political question and that the Convention being a legislative
body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress
and the Courts." 30
This Court therein made its unequivocal choice of strictly
requiring faithful (which really includes substantial)
compliance with the mandatory requirements of the amending
process.
1. In denying reconsideration of our judgment of October 16,
1971 prohibiting the submittal in an advance election of 1971
Constitutional Convention's Organic Resolution No. 1
proposing to amend Article V, section 1 of the Constitution by
lowering the voting age to 18 years (vice 21 years) 30a
"without prejudice to other amendments that will be proposed
in the future ... on other portions of the amended section", this
Court stated that "the constitutional provision in question (as
proposed) presents no doubt which may be resolved in favor
of respondents and intervenors. We do not believe such doubt
can exist only because it is urged that the end sought to be
achieved is to be desired. Paraphrasing no less than the
President of Constitutional Convention of 1934, Claro M.
Recto, let those who would put aside, invoking grounds at
best controversial, any mandate of the fundamental law
purportedly in order to attain some laudable objective bear in
mind that someday somehow others with purportedly more
laudable objectives may take advantage of the precedent and
continue the destruction of the Constitution, making those who
laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own
folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal
operation and the performance of its assigned
mission to propose amendments to the
Constitution, the Convention and its officers and
members are all subject to all the provisions of
the existing Constitution. Now We hold that even
as to its latter task of proposing amendments to
the Constitution, it is subject to the provisions of
Section 1 of Article XV. This must be so,
because it is plain to Us that the framers of the
Constitution took care that the process of
amending the same should not be undertaken
with the same ease and facility in changing an
ordinary legislation. Constitution making is the
most valued power, second to none, of the
people in a constitutional democracy such as the
one our founding fathers have chosen for this
nation, and which we of the succeeding
generations generally cherish. And because the
Constitution affects the lives,
fortunes, future and every other conceivable
aspect of the lives of all the people within the
country and those subject to its sovereignty,
every degree of care is taken in preparing and
drafting it. A constitution worthy of the people for
deliberation and study. It is obvious that
correspondingly, any amendment of the
Constitution is of no less importance than the
whole Constitution itself, and perforce must be
conceived and prepared with as much care and
deliberation. From the very nature of things, the
drafters of an original constitution, as already
observed earlier, operate without any limitations,
restraints or inhibitions save those that they may
impose upon themselves. This is not necessarily
true of subsequent conventions called to amend
 the original constitution. Generally, the framers
of the latter see to it that their handiwork is not
lightly treated and as easily mutilated or
changed, not only for reasons purely personal
but more importantly, because written
constitutions are supposed to be designed so as
to last for some time, if not for ages, or for, at
least, as long as they can be adopted to the
needs and exigencies of the people, hence, they
must be insulated against precipitate and hasty
actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the
original constitutions carry with them limitations
and conditions, more or less stringent, made so
by the people themselves, in regard to the
process of their amendment. And when such
limitations or conditions are so incorporated in
the original constitution, it does not lie in the
delegates of any subsequent convention to
claim that they may ignore and disregard such
conditions because they are powerful and
omnipotent as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the
doctrine of proper submission first advanced in Gonzales vs.
Comelec33, thus:
We are certain no one can deny that in order
that a plebiscite for the ratification of an
amendment to the Constitution may be validly
held, it must provide the voter not only sufficient
time but ample basis for an intelligent
appraisal of the nature of amendment per se as
well as its relation to the other parts of the
Constitution with which it has to form a
harmonious whole. In the context of the present
state of things, where the Convention hardly
started considering the merits of hundreds, if not
thousands, proposals to amend the existing
Constitution, to present to people any single
proposal or a few of them cannot comply with
this requirement. We are of the opinion that the
present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of
reference they can base their judgment on. We
reject the rationalization that the present
Constitution is a possible frame of reference, for
the simple reason that intervenors themselves
are stating the sole purpose of the proposed
amendment is to enable the eighteen year olds
to take part in the election for the ratification of
the Constitution to be drafted by the Convention.
In brief, under the proposed plebiscite, there can
be, in the language of Justice Sanchez,
speaking for the six members of the Court in
Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court 35 in a separate
concurrence in Tolentino, expressed their "essential
agreement" with Justice Sanchez' separate opinion
in Gonzales on the need for "fair submission (and) intelligent
rejection" as "minimum requirements that must be met in
order that there can be a proper submission to the people of a
proposed constitutional amendment" thus:
... amendments must be fairly laid before the
people for their blessing or spurning. The people
are not to be mere rubber stamps. They are not
to vote blindly. They must be afforded ample
opportunity to mull over the original provisions,
compare them with the proposed amendments,
and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus
of extraneous or possibly insidious influences.
We believe the word "submitted" can only mean
that the government, within its maximum
capabilities, should strain every effort to inform
every citizen of the provisions to be amended,
and the proposed amendments and the
meaning, nature and effects thereof. By this, we
are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot
be reached, then there is no submission within
the meaning of the word as intended by the
framers of the Constitution. What the
Constitution in effect directs is that the
government, in submitting an amendment for
ratification, should put every instrumentality or
agency within its structural framework to
enlighten the people, educate them with respect
to their act of ratification or rejection. For as we
have earlier stated, one thing is submission and
another is ratification. There must be fair
submission, intelligent consent or rejection. 36
They stressed further the need for undivided attention,
sufficient information and full debate, conformably to the
intendment of Article XV, section 1 of the Constitution, in this
wise:
A number of doubts or misgivings could
conceivably and logically assail the average
voter. Why should the voting age be lowered at
all, in the first place? Why should the new voting
age be precisely 18 years, and not 19 or 20?
And why not 17? Or even 16 or 15? Is the 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 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:
... The preamble of the Constitution says that the
Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.'
Section 1 of Article XV is nothing than a part of
the Constitution thus ordained by the people.
Hence, in construing said section, We must read
it as if the people had said, 'This Constitution
may be amended, but it is our will that the
amendment must be proposed and submitted to
Us for ratification only in the manner herein
provided.' ... Accordingly, the real issue here
cannot be whether or not the amending process
delineated by the present Constitution may be
disregarded in favor of allowing the sovereign
people to express their decision on the proposed
amendments, if only because it is evident that
the very idea of departing from the fundamental
law is anachronistic in the realm of
constitutionalism and repugnant to the essence
of the rule of law; rather, it is whether or not the
provisional nature of the proposed amendment
and the manner of its submission to
the people for ratification or
rejection conform with the mandate of the
people themselves in such regard, as expressed
in, the Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated
its position: "(I)t would be tragic and contrary to the plain
compulsion of these perspectives, if the Court were to allow
itself in deciding this case to be carried astray by
considerations other than the imperatives of
the rule of law and of the applicable provisions of
the Constitution. Needless to say, in a larger measure than
when it binds other departments of the government or any
other official or entity, the Constitution imposes upon the
Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties and by striking down
any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion
in Tolentino concurring with this Court's denial of the motion
for reconsideration, succinctly restated this Court's position on
the fundamentals, as follows:
— On the premature submission of a partial
amendment proposal, with a "temporary
provisional or tentative character": — "... a
partial amendment would deprive the voters of
the context which is usually necessary for them
to make a reasonably intelligent appraisal of the
issue submitted for their ratification or
rejection. ... Then, too, the submission to a
plebiscite of a partial amendment, without
a definite frame of reference, is fraught with
possibilities which may jeopardize the social
fabric. For one thing, it opens the door to wild
speculations. It offers ample opportunities for
overzealous leaders and members of opposing
political camps to unduly exaggerate the pros
and cons of the partial amendment proposed. In
short, it is apt to breed false hopes and
create wrong impressions. As a consequence, it
is bound to unduly strain the people's faith in the
soundness and validity of democratic processes
and institutions.
— On the plea to allow submission to the
sovereign people of the "fragmentary and
incomplete" proposal, although inconsistent with
the letter and spirit of the Constitution: "The
view, has, also, advanced that the foregoing
considerations are not decisive on the issue
before Us, inasmuch as the people are
sovereign, and the partial amendment involved
in this case is being submitted to them. The
issue before Us is whether or not said partial
amendment may be validly submitted to the
people for ratification "in a plebiscite coincide
with the local elections in November 1971,"
and this particular issue will not be submitted to
the people. What is more, the Constitution
does not permit its submission to the people.
The question sought to be settled in the
scheduled plebiscite is whether or not the
people are in favor of the reduction of the voting
age.
— On a "political" rather than "legalistic"
approach: "Is this approach to the problem too
"legalistic?" This term has possible
connotations. It may mean strict adherence to
the law, which in the case at bar is the Supreme
Law of the land. On point, suffice it to say that,
in compliance with the specific man of such
Supreme Law, the members of the Supreme
Court taken the requisite "oath to support and
defend the Constitution." ... Then, again, the
term "legalistic" may be used to suggest
inversely that the somewhat strained
interpretation of the Constitution being urged
upon this Court be tolerated or, at least,
overlooked, upon the theory that the partial
amendment on voting age is badly needed and
reflects the will of the people, specially the
youth. This course of action favors, in effect,
adoption of a political approach, inasmuch as
the advisability of the amendment and an
appraisal of the people's feeling thereon political
matters. In fact, apart from the obvious message
of the mass media, and, at times, of the pulpit,
the Court has been literally bombarded with
scores of handwritten letters, almost all of which
bear the penmanship and the signature of girls,
as well as letterhead of some sectarian
educational institutions, generally stating that the
writer is 18 years of age and urging that she or
he be allowed to vote. Thus, the pressure of
public opinion has brought to bear heavily upon
the Court for a reconsideration of its decision in
the case at bar.
As above stated, however, the wisdom of the
amendment and the popularity thereof are
political questions beyond our province. In fact,
respondents and the intervenors originally
maintained that We have no jurisdiction to
entertain the petition herein, upon the ground
that the issue therein raised is a political one.
Aside from the absence of authority to pass
upon political question, it is obviously improper
and unwise for the bench to develop into such
questions owing to the danger of getting
involved in politics, more likely of a partisan
nature, and, hence, of impairing the image and
the usefulness of courts of justice as objective
and impartial arbiters of justiciable
controversies.
Then, too, the suggested course of action, if
adopted, would constitute a grievous disservice
to the people and the very Convention itself.
Indeed, the latter and the Constitution it is in the
process of drafting stand essentially for the Rule
of Law. However, as the Supreme Law of the
land, a Constitution would not be worthy of its
name, and the Convention called upon to draft it
would be engaged in a futile undertaking, if we
did not exact faithful adherence to
the fundamental tenets set forth in the
Constitution and compliance with its provisions
 were not obligatory. If we, in effect, approved,
consented to or even overlooked a
circumvention of said tenets and provisions,
because of the good intention with which
Resolution No. 1 is animated, the Court would
thereby become the Judge of the good or bad
intentions of the Convention and thus be
involved in a question essentially political in
nature.
This is confirmed by the plea made in the
motions for reconsideration in favor of the
exercise of judicial statesmanship in deciding
the present case. Indeed, "politics" is the word
commonly used to epitomize compromise, even
with principles, for the sake of political
expediency or the advancement of the bid for
power of a given political party. Upon the other
hand, statesmanship is the expression usually
availed of to refer to high politics or politics on
the highest level. In any event, politics, political
approach, political expediency and
statesmanship are generally associated, and
often identified, with the dictum that "the end
justifies the means." I earnestly hope that the
administration of justice in this country and the
Supreme Court, in particular, will adhere to or
approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal
that "(T)he primary purpose for the submission of the
proposed amendment lowering the voting age to the plebiscite
on November 8, 1971 is to enable the youth 18 to 20 years
who comprise more than three (3) million of our population to
participate in the ratification of the new Constitution in so far
as "to allow young people who would be governed by the
Constitution to be given a say on what kind of Constitution
they will have" is a laudable end, ... those urging the vitality
and importance of the proposed constitutional amendment
and its approval ahead of the complete and final draft of the
Constitution must seek a valid solution to achieve it in a
manner sanctioned by the amendatory process ordained by
our people in the present Constitution" 41 — so that there may
be "submitted, not 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.
III
1. To restate the basic premises, the people provided in
Article XV of the Constitution for the amending
process only "by approval by a majority of the votes cast at an
election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those
thereby enfranchised and granted the right of suffrage may
speak the "will of the body politic", viz, qualified literate voters
twenty one years of age or over with one year's residence in
the municipality where they have registered.
The people, not as yet satisfied, further provided by
amendment duly approved in 1940 in accordance with Article
XV, for the creation of an independent Commission on
Elections with "exclusive charge" for the purpose of "insuring
free, orderly and honest elections" and ascertaining the true
will of the electorate — and more, as ruled by this Court
in Tolentino, in the case of proposed constitutional
amendments, insuring proper submission to the electorate of
such proposals. 42
2. A Massachussets case 43 with a constitutional system and
provisions analogous to ours, best defined the uses of the
term "people" as a body politic and "people" in the political
sense who are synonymous with the qualified voters granted
the right to vote by the existing Constitution and who therefore
are "the sole organs through which the will of the body politic
can be expressed."
It was pointed out therein that "(T)he word 'people' may have
somewhat varying significations dependent upon the
connection in which it is used. In some connections in the
Constitution it is confined to citizens and means the same as
citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, 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 intrusted with the exercise of
the sovereign power and the conduct of government.
The 'people' in the Constitution in a practical sense means
those who under the existing Constitution possess the right to
exercise the elective franchise and who, while that instrument
remains in force unchanged, will be the sole organs through
which the will of the body politic can be expressed.
'People' for political purposes must be
considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the
people are thus the source of political power, their
governments, national and state, have been limited by
constitutions, and they have themselves thereby set bounds
to their own power, as against the sudden impulse of mere
majorities." 44
From the text of Article XV of our Constitution, requiring
approval of amendment proposals "by a majority of the votes
cast at an election at which the amendments are submitted to
the people for their ratification", it seems obvious as 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 level 45 the Revised Barrio Charter fixes
certain safeguards for the holding of barrio plebiscites thus:
"SEC. 6. Plebiscite. — A plebiscite may be held in the barrio
when authorized by a majority vote of the members present in
the barrio assembly, there being a quorum, or when called by
at least four members of the barrio council: Provided,
however, That no plebiscite shall be held until after thirty days
from its approval by either body, and such plebiscite has been
given the widest publicity in the barrio, stating the date, time
and place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further
requires that "(A)ll duly registered barrio assembly
members qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in regular
elections, and/or declaration by the voters to the board of
election tellers." 47
The subjects of the barrio plebiscites are likewise delimited
thus: "A plebiscite may be called to decide on the recall of any
member of the barrio council. A plebiscite shall be called to
approve any budgetary, supplemental appropriations or
special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated
measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is
necessary." 48
The qualifications for voters in such barrio plebiscites and
elections of barrio officials 49 comply with the suffrage
qualifications of Article V, section 1 of the Constitution and
provide that "(S)EC. 10. Qualifications of Voters and
Candidates. — Every citizen of the Philippines, twenty one
years of age or over, able to read and write, who has been a
resident of the barrio during the six months immediately
preceding the election, duly registered in the list of voters by
the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the
mandatory requirements under the 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
itself 51 has been called or held, there cannot be said to have
been a valid ratification.
2. Petitioners raised serious questions as to the veracity and
genuineness of the reports or certificates of results
purportedly showing unaccountable discrepancies in seven
figures in just five provinces 52 between the reports as certified
by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which
latter reports respondents disclaimed inter alia as not final and
complete or as not signed; 53 whether the reported votes of
approval of the proposed Constitution conditioned upon the
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
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:
"RESOLVED, AS IT IS HEREBY
RESOLVED, that the 1971
Constitutional Convention propose
to President Ferdinand E. Marcos
that a decree be issued calling a
plebiscite for the ratification of the
proposed New Constitution on
such appropriate date as he shall
determine and providing for the
necessary funds therefor, and that
copies of this resolution as
approved in plenary session be
transmitted to the President of the
Philippines and the Commission
on Elections for implementation."
He suggested that in view of the expected
approval of the final draft of the new Constitution
by the end of November 1972 according to the
Convention's timetable, it would be necessary to
lay the groundwork for the appropriate agencies
of the government to undertake the necessary
preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.)
contended that the resolution was unnecessary
because section 15, Article XVII on the
Transitory Provision, which had already been
approved on second and third readings,
provided that the new constitution should be
ratified in a plebiscite called for the purpose by
the incumbent President. Delegate Duavit
replied that the provision referred to
did not include the appropriation of funds for the
plebiscite and that, moreover, the resolution was
intended to serve formal notice to the President
and the Commission on Elections to initiate the
necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang
suggested that a reasonable period for an
information campaign was necessary in order to
properly apprise the people of the implications
and significance of the new charter. Delegate
Duavit agreed, adding that this was precisely
why the resolution was modified to give the
President the discretion to choose the most
appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal
communication to the President informing him of
the adoption of the new Constitution would not
suffice considering that under Section 15 of the
Transitory Provisions, the President would be
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.
12.6 In reply to Delegate Britanico, Delegate
Duavit stated that the mechanics for the holding
of the plebiscite would be laid down by the
Commission on Elections in coordination with
the President.
12.7 Delegate Catan inquired if such mechanics
for the plebiscite could include a partial lifting of
martial law in order to allow the people to
assemble peaceably to discuss the new
Constitution. Delegate Duavit suggested that the
Committee on Plebiscite and Ratification could
coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous
question. The Chair declared that there was one
more interpellant and that a prior reservation
had been made for the presentation of such a
motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his
interpellation that there was actually no need for
such a resolution in view of the provision of
section 15, Article XVII on the Transitory
Provisions. Delegate Duavit disagreed, pointing
out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the
debate and proceed to the period of
amendment.
13.1 Floor Leader Montejo stated that there
were no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the
previous question. Submitted to a vote, the
motion was approved.
Upon request of the Chair, Delegate Duavit
restated the resolution for voting.
 14.1. Delegate Ordoñez moved for nominal
voting. Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the
resolution to a vote. It was approved by a show
of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and
to give due course to the petitions.
Promulgated:
4, 1973"The more complete the separation of powers in a
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds
for my concurrence.
I government from the paralysis of constitutional restraints"
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
Juneentails the concentration of governmental power.
constitutional system, the more difficult, and yet the more
necessary" according to Rossiter, "will be their fusion in time
of crisis... The power of the state in crisis must not only be
concentrated and expanded, it must be freed from the normal
system of constitutional and legal limitations. One of the basic
features of emergency powers is the release of the
(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
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
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 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 issued, the nation was confronted in the opinion of the
late President with an 'emergency greater than war'; and in
sustaining certain of the New Deal measures the Court
invoked the justification of 'emergency.' In the final result
constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well,
seem likely to do so still more pronouncedly under fresh
conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the
authority of a constitutional government is
resisted openly by large numbers of citizens who
are engaged in violent insurrection against
enforcement of its laws or are bent on capturing
it illegally or destroying it altogether. The third
crisis, one recognized particularly in modern
times as sanctioning emergency action by
constitutional governments, is economic
depression. The economic troubles which
plagued all the countries of the world in the early
thirties involved governmental methods of an
unquestionably dictatorial character in many
democracies. It was thereby acknowledged that
an economic existence as a war or a rebellion.
And these are not the only cases which have
justified extraordinary governmental action in
nations like the United States. Fire, flood,
drought, earthquake, riots, great strikes have all
been dealt with by unusual and of dictatorial
methods. Wars are not won by debating
societies, rebellions are not suppressed by
judicial injunctions, reemployment of twelve
million jobless citizens will not be effected
through a scrupulous regard for the tenets of
free enterprise, hardships caused by the
eruptions of nature cannot be mitigated letting
nature take its course. The Civil War, the
depression of 1933 and the recent global conflict
were not and could not have been successfully
resolved by governments similar to those of
James Buchanan, William Howard Taft, or
 Calvin Coolidge. (Rossiter, Constitutional
Dictatorship — Crisis of Government in the
Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that
the referendum in question not having been done
inaccordance with the provisions of existing election laws,
which only qualified voters who are allowed to participate,
under the supervision of the Commission on Elections, the
new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of
the 1935 Constitution provides the method for the revision of
the constitution, and automatically apply in the final approval
of such proposed new Constitution the provisions of the
election law and those of Article V and X of the old
Constitution. We search in vain for any provision in the old
charter specifically providing for such procedure in the case of
a total revision or a rewriting of the whole constitution.
1. There is clearly a distinction
between revision and amendment of an existing constitution.
Revision may involve a rewriting of the whole constitution. The
act of amending a constitution, on the other hand, envisages
a change of only specific provisions. The intention of an act to
amend is not the change of the entire constitution but only
the improvement of specific parts of the existing constitution of
the addition of provisions deemed essential as a consequence
of new constitutions or the elimination of parts already
considered obsolete or unresponsive to the needs of the
times.1 The 1973 Constitution is not a mere amendment to the
1935 Constitution. It is a completely new fundamental charter
embodying new political, social and economic concepts.
According to an eminent authority on Political Law, "The
Constitution of the Philippines and that of the United States
expressly provide merely for methods of amendment. They
are silent on the subject of revision. But this is not a fatal
omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the
Philippines or of the United States even were such
conventions called merely for the purpose of proposing and
submitting amendments to the people. For in the final
analysis, it is the approval of the people that gives validity to
any proposal of amendment or revision." (Sinco, Philippine
Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for
the method or procedure for the revision or for the approval of
a new constitution, should it now be held, that the people have
placed such restrictions on themselves that they are not
disabled from exercising their right as the ultimate source of
political power from changing the old constitution which, in
their view, was not responsive to their needs and in adopting
a new charter of government to enable them to rid themselves
from the shackles of traditional norms and to pursue with new
dynamism the realization of their true longings and
aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of
the base of political participation, by the inclusion of the youth
in the process of ratification who after all constitute the
preponderant majority more in accord with the spirit and
philosophy of the constitution that political power is inherent in
the people collectively? As clearly expounded by Justice
Makasiar, in his opinion, in all the cases cited where the
Courts held that the submission of the proposed amendment
was illegal due to the absence of substantial compliance with
the procedure prescribed by the constitution, the procedure
prescribed by the state Constitution, is so detailed, that
specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of
election and other definite standards, from which the court
could safely ascertain whether or not the submission was in
accordance with the Constitution. Thus the case of In re
McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the
provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the
Constitution may be amended or revised.2 This is not true with
our Constitution. In the case of revision there are no
"standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the
Constitution the method or procedure for the revision or
rewriting of the entire constitution, and if such was their
intention, they could and should have so provided. Precedents
were not wanting. The constitutions of the various states of
the American Union did provide for procedures for
their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify,
revise, amend, remodel or rewrite the 1935 Charter. To
declare what the law is, or has been, is a judicial power, but to
declare what the law shall be is not within Our judicial
competence and authority.
Upon the other hand, since our fundamental charter has not
provided the method or procedure for the revision or complete
change of the Constitution, it is evident that the people have
reserved such power in themselves. They decided to exercise
it not through their legislature, but through a Convention
expressly chosen for that purpose. The Convention as an
independent and sovereign body has drafted not an
amendment but a completely new Constitution, which decided
to submit to the people for approval, not through an act of
Congress, but by means of decrees to be promulgated by the
President. In view of the inability of Congress to act, it was
within the constitutional powers of the President, either as
agent of the Constitutional Convention, or under his authority
under martial law, to promulgate the necessary measures for
the ratification of the proposed new Constitution. The adoption
the new Charter was considered as a necessary basis for all
the reforms set in motion under the new society, to root out
the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in
accepting such procedure and in voting overwhelmingly for
the approval of the new Constitution have, in effect, ratified
the method and procedure taken. "When the people adopt
completely revised or new constitution," said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 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. 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 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 and the new Constitution has become effective,
the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by
presupposing the old basic norm, but by presupposing the
new one. The statutes issued under the old Constitution and
not taken over are no longer regarded as valid, and the
organs authorized by the old Constitution no longer
competent." (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made
manifest by understanding that in the final analysis, what is
assailed is not merely the validity of Proclamation No. 1102 of
the President, which is merely declaratory of the fact of
approval or ratification, but the legitimacy of the government.
It is addressed more to the framework and political character
of this Government which now functions under the new
Charter. It seeks to nullify a Constitution that is
already effective.
In such a situation, We do not see how the question posed by
petitioners could be judicially decided. "Judicial power
presupposes an established government capable of enacting
laws and enforcing their execution, and of appointing judges
to expound and administer them. If it decides at all as a court,
it necessarily affirms the existence and authority of the
government under which it is exercising judicial power."
(Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental
law has been effected through political action, the Court
whose existence is affected by such change is, in the words of
Mr. Melville Fuller Weston, "precluded from passing upon the
fact of change by a logical difficulty which is not to be
surmounted."5 Such change in the organic law relates to the
existence of a prior point in the Court's "chain of title" to its
authority and "does not relate merely to a question of the
horizontal distribution of powers."6 It involves in essence a
matter which "the sovereign has entrusted to the so-called
political departments of government or has reserved to be
settled by its own extra governmental action." 7
The non-judicial character of such a question has been
recognized in American law. "From its earliest opinions this
Court has consistently recognized," said Justice Frankfurter,
in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L.
Ed. 2d. 633, 722, 726, 727), "a class of controversies which
do not lend themselves to judicial standards and judicial
remedies. To classify the various instances as "political
questions" is rather a form of stating this conclusion than
revealing of analysis ... The crux of the matter is that courts
are not 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.)
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, including, but not limited to, number of
members, districts, election and certification of delegates, and
submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary
power to amend or revise the constitution, subject only to
ratification by the people. No call for a constitutional
convention shall limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the
Constitution.
Sec. 1. Constitutional amendments. Any amendment or
amendments to this Constitution may be proposed in the
Senate or Assembly, and if 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 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 such revisions,
alterations or amendments to the constitution as may be
deemed necessary; which shall be submitted to
the electors for their ratification or rejection at an election
appointed by the convention for that purpose, not less than
two nor more than six months after adjournment thereof; and
unless so submitted and approved by a majority of the
electors voting at the election, no such revision, alteration or
amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any
amendment or amendments to this constitution may be
proposed in either house of the general assembly, and if the
same shall be voted for by 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
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 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 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.
Sec. 3. Convention. At the general election to be held in the
year one thousand eight hundred and seventy, and in each
tenth year thereafter, and also at such times as the General
Assembly may, by law, provide, the question, "Shall there be
a Convention to revise the Constitution, and amend the
same?" shall be decided by the electors qualified to vote for
members of the General Assembly; and in case a majority of
the electors so qualified, voting at such election, for and
against such proposition, shall decide in favor of a Convention
for such purpose, the General Assembly, at its next session,
shall provide by law for the election of delegates to such
Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature;
submission to electors. Any amendment or amendments to
this constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the
members elected to each house,
such amendment or amendments shall be entered on the
journals, respectively, with the yeas and nays taken thereon;
and the same shall be submitted to the electors at the next
spring or autumn election thereafter, as the legislature shall
direct; and, if a majority of the electors qualified to vote for
members of the legislature voting thereon shall ratify and
approve such amendment or amendments, the same shall
become part of the constitution.
Sec. 4. General revision; convention; procedure. At the
Biennial Spring Election to be held in the year 1961, in each
sixteenth year thereafter and at such times as may be
provided by law, the question of a General Revision of the
Constitution shall be submitted to the Electors qualified to vote
for members of the Legislature. In case a majority of the
Electors voting on the question shall decide in favor of a
Convention for such purpose, at an Election to be held not
later than four months after the Proposal shall have been
certified as approved, the Electors of each House of
Representatives District as then organized shall Elect One
Delegate for each Electors of each Senatorial District as then
organized shall Elect One Delegate for each State Senator to
which the District is entitled. The Delegates so elected shall
convene at the Capital City on the First Tuesday in October
next succeeding such election, and shall continue their
sessions until the business of the convention shall be
completed. A majority of the delegates elected shall constitute
a quorum for the transaction of business. ... No proposed
constitution or amendment adopted by such convention shall
be submitted to the electors for approval as hereinafter
provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being
entered on the journal. Any proposed constitution or
amendments adopted by such convention shall be submitted
to the qualified electors in the manner provided by such
convention on the first Monday in April following the final
adjournment of the convention; but, in case an interval of at
least 90 days shall not intervene between such final
adjournment and the date of such election. Upon the approval
of such constitution or amendments by a majority of the
qualified electors voting thereon such constitution or
amendments shall take effect on the first day of January
following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the
Constitution.
Sec. 1. Amendments to constitution; majority vote of electors
voting makes amendment valid. Whenever a majority of both
houses of the legislature shall deem it necessary to alter or
amend this Constitution, they may proposed such alterations
or amendments, which proposed amendments shall be
published with the laws which have been passed at the same
session, and said amendments shall be submitted to the
people for their approval or rejection at any general election,
and if it shall appear, in a manner to be provided by law, that a
majority of all the electors voting at said election shall have
voted for and ratified such alterations or amendments, the
same shall be valid to all intents and purposes as a part of this
Constitution. If two or more alterations or amendments shall
be submitted at the same time, it shall be so regulated that the
voters shall vote for or against each separately.
Sec. 2. Revision of constitution. Whenever 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
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 holden within six months
after the passage of such law, and such Convention shall
consist of a number of Members not less that of both
branches of the legislature. In determining what is a majority
of the electors voting such election, reference shall be had to
the highest number of vote cast at such election for the
candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the
duty of the selectmen, and assessors, of the several towns
and places in this state, in warning the first annual meetings
for the choice of senators, after the expiration of seven years
from the adoption of this constitution, as amended, to insert
expressly in the warrant this purpose, among the others for
the meeting, to wit, to take the sense of the qualified voters on
the subject of a revision of the constitution; and, the meeting
being warned accordingly, and not otherwise, the moderator
shall take the sense of the qualified voters present as to the
necessity of a revision; and a return of the number of votes for
and against such necessity, shall be made by the clerk sealed
up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such
return, that the sense of the people of the state has taken, and
that, in the opinion of the majority of the qualified voters in the
state, present and voting at said meetings, there is a
necessity for a revision of the constitution, it shall be the duty
of the general court to call a convention for that purpose,
otherwise the general court shall direct the sense of the
people to be taken, and then proceed in the manner before
mentioned. The delegates to be chosen in the same manner,
and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution,
before the same shall be laid before the towns and
unincorporated places, and approved by two thirds of the
qualified voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional
Amendments.
Sec. 1. Amendments proposed by legislature; a submission to
vote. Any amendment or amendments to this Constitution
may be proposed in either branch of the Legislature, and if the
same shall be agreed to by a majority of all the members
elected to each of the two houses, such proposed amendment
or amendments shall, with yeas and nays thereon, be entered
in their journals and referred by the Secretary of State to the
people for their approval or rejection, at the next regular
general election, except when the Legislature, by a two-thirds
vote of each house, shall order a special election for that
purpose. If a majority of all the electors voting at such election
shall vote in favor of any amendment thereto, it shall thereby
become a part of this Constitution.
If two or more amendments are proposed they shall be
submitted in such manner that electors may vote for or
against them separately.
No proposal for the amendment or alteration of this
Constitution which is submitted to the voters shall embrace
more than one general subject and the voters shall vote
separately for or against each proposal submitted; provided,
however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace
one general subject, each proposed article shall be deemed a
single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or
new constitution. No convention shall be called by the
Legislature to propose alterations, revisions, or amendments
to this Constitution, or to propose a new Constitution, unless
the law providing for such convention shall first be approved
by the people on a referendum vote at a regular or special
election, and any amendments, alterations, revisions, or new
Constitution, proposed by such convention, shall be submitted
to the electors of the State at a general or special election and
be approved by a majority of the electors voting thereon,
before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to
the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or
amendments to this Constitution may be proposed in either
branch of the legislative assembly, and if the same shall be
agreed to by a majority of all the members elected to each of
the two houses, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people
for their approval or rejection, at the next regular election,
except when the legislative assembly shall order a special
election for that purpose. If a majority of the electors voting on
any such amendment shall vote in favor thereof, it shall
thereby become a part of this Constitution. The votes for and
against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition,
shall be canvassed by the secretary of state in the presence
of the governor, and if it shall appear to the governor that the
majority of the votes cast at said election on said amendment,
or amendments, severally, are cast in favor thereof, it shall be
his duty forthwith after such canvass, by his proclamation, to
declare the said amendment, or amendments, severally,
having received said majority of votes to have been adopted
by the people of Oregon as part of the Constitution thereof,
and the same shall be in effect as a part of the Constitution
from the date of such proclamation. When two or more
amendments shall be submitted in the manner aforesaid to
the voters of this state at the same election, they shall be so
submitted that each amendment shall be voted on separately.
No convention shall be called to amend or propose
amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention
shall first be approved by the people on a referendum vote at
a regular general election. This article shall not be construed
to impair the right of the people to amend this Constitution by
vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the
power to amend this Constitution granted by section 1, Article
IV, and section 1 of this Article, a revision of all or part of this
Constitution may be proposed in either house of the
Legislative Assembly and, if the proposed revision is agreed
to by at least 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 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.
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.
 
 
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not
the petitioners had made out a sufficient prima facie case in
their petitions to justify their being given due course.
Considering on the one hand the urgency of the matter and on
the other hand its transcendental importance, which
suggested the need for hearing the side of the respondents
before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the
comments were filed We considered them as motions to
dismiss so that they could be orally argued. As it turned out,
the hearing lasted five days, morning and afternoon, and
could not have been more exhaustive if the petitions had been
given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens
Assemblies as certified and proclaimed by the President on
January 17, 1973 (Proclamation No. 1102) was not an act of
ratification, let alone a valid one, of the proposed Constitution,
because it was not in accordance with the existing
Constitution (of 1935) and the Election Code of 1971. Other
grounds are relied upon by the petitioners in support of their
basic proposition, but to our mind they are merely subordinate
and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that
amendments (proposed either by Congress in joint session or
by a Convention called by it for the purpose) "shall be valid
part of this Constitution when approved by a majority of votes
cast at an election at which the amendments submitted to the
people for their ratification." At the time Constitution was
approved by the Constitutional Convention on February 8,
1935, and ratified in a plebiscite held on following May 14, the
word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept,
but a procedure prescribed by statute ascertaining the
people's choices among candidates for public offices, or their
will on important matters submitted to the pursuant to law, for
approval. It was in this sense that word was used by the
framers in Article XV (also in Articles VI and VII), and in
accordance with such procedure that plebiscites were held to
ratify the very same Constitution in 1935 as well as the
subsequent amendments thereto, thus: in 1939 (Ordinance
appended to the Constitution); 1940 (establishment of a
bicameral legislature; eligibility of the President and the Vice
President for re election; creation of the Commission of
Elections); 1947 (Parity Amendment); and 1967 (increase in
membership of the House of Representatives and eligibility of
members of Congress to run for the Constitutional Convention
without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all
elections of public officers except barrio officials
and plebiscites shall be conducted in the manner provided by
this Code." This is a statutory requirement designed, as were
the other election laws previously in force, to carry out the
constitutional mandate relative to the exercise of the right
suffrage, and with specific reference to the term "plebiscites,"
the provision of Article XV regarding ratification of
constitutional amendments.
The manner of conducting elections and plebiscites provided
by the Code is spelled out in other sections thereof. Section
99 requires that qualified voters be registered in a permanent
list, the qualifications being those set forth in Article V, Section
1, of the 1935 Constitution on the basis of age (21), literacy
and residence. These qualifications are reiterated in Section
101 of the Election Code. Section 102 enumerates the
classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure
for registering voters, the records, of registration and the
custody thereof, the description and printing of official ballots,
the actual casting of votes and their subsequent counting by
the boards of inspectors, the rules for appreciation of ballots,
and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft
Constitution, several additional circumstances should be
considered:
(1) This draft was prepared and approved by a Convention
which had been convened pursuant to Resolution No. 2
passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the
Convention shall be valid and considered part of
the Constitution when approved by a majority of
the votes cast in an election at which they are
submitted to the people for their ratification
pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect
immediately upon its ratification by a majority of
the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall
supersede the Constitution of nineteen hundred
and 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
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
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."
On January 5, 1973 the newspapers came out with a list of
four questions to be submitted to the Citizens Assemblies, the
fourth one being as follows: "How soon would you like
plebiscite on the new Constitution to be held?" It should be
noted in this connection that the President had previously
announced that he had ordered the postponement of
plebiscite which he had called for January 15, 1973
(Presidential Decree No. 73) for the ratification of the
Constitution, and that he was considering two new dates for
the purpose — February 19 or March 5; that he had ordered
that the registration of voters (pursuant to Decree No. 73) be
extended to accommodate new voters; and that copies of the
new Constitution would be distributed in eight dialects the
people. (Bulletin Today, December 24, 1972.)
On January 10, 1973 it was reported that one more question
would be added to the original four which were to be
submitted to the Citizens Assemblies. The question
concerning plebiscite was reworded as follows: "Do you like
the plebiscite to be held later?" The implication, it may
likewise be noted, was that the Assemblies should express
their views as to the plebiscite should be held, not as to
whether or not it should be held at all.
The next day, January 11, it was reported that six additional
questions would be submitted, namely:
(1) Do you approve of the citizens assemblies as
the base of popular government to decide issues
of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify
the new Constitution?
(4) Do you want the elections to be held in
November, 1973 accordance with the provisions
of the 1935 Constitution?
(5) If the elections would not be held, when do
you want the next elections to be called?
(6) Do you want martial law to continue?
[Bulletin Today, January 11, 1973; emphasis
supplied].
Appended to the six additional questions above quoted were
the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
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
If the Citizens Assemblies approve
of the New Constitution, then the
new Constitution should be
deemed ratified.
The vote of the Citizens
Assemblies should already be
considered the plebiscite on the
New 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 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 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 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, 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.
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
enter upon the inquiry proposed in this case, and should come
to the conclusion that the government under which it acted
had been put aside and displaced by an opposing
government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook
to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is
exercising judicial power." In other words, since the court
would have no choice but to decide in one way alone in order
to be able to decide at all, the question could not be
considered proper for judicial determination.
It should be noted that the above statement from Luther vs.
Borden would be applicable in the cases at bar only on the
premise that the ratification of the Constitution was a
revolutionary act and that the government now functioning it is
the product of such revolution. However, we are not prepared
to agree that the premise is justified.
In the first, place, with specific reference to the questioned
ratification, several significant circumstances may be noted.
(1) The Citizens Assemblies were created, according to
Presidential Decree No. 86, "to broaden the base of citizen
participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on
important national issues." (2) The President announced,
according to the Daily Express of January 2, 1973, that "the
referendum will be in the nature of a loose consultation with
the people." (3) The question, as submitted to them on the
particular point at issue here, was "Do you a approve of the
Constitution?" (4) President Marcos, in proclaiming that the
Constitution had been ratified, stated as follows: "(S)ince the
referendum results show that more than 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 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 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.
On January 19, 1973 the Daily Express published statement
of the President made the day before, from which the
following portion is quoted:
... the times are too grave and the stakes too
high for us permit the customary concessions to
traditional democratic process to hold back our
people's clear and unequivocal resolve and
mandate to meet and overcome the
extraordinary challenges presented by these
extraordinary times.
On the same occasion of the signing of Proclamation No.
1102 the President made pointed reference to "the demand of
some of our citizens ... that when all other measures should
fail, that the President be directed to organize and establish a
Revolutionary Government," but in the next breath added: "...
if we do ratify the Constitution, how can we speak of
Revolutionary Government? They cannot be compatible ..."
"(I)t is my feeling," he said, "that the Citizens' Assemblies
which submitted this recommendation merely sought
articulate their impatience with the status quo that has brought
about anarchy, confusion and misery to the masses ..." The
only alternatives which the President clearly implied by the
foregoing statements were the ratification of the new
Constitution and the establishment of a revolutionary
government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been ratified. The third
obvious alternative was entirely ruled out, namely, a return to
the 1935 Constitution, for it was the status quo under that
Constitution that had caused "anarchy, confusion and misery."
The message seems clear: rather than return to such status
quo, he would heed the recommendation of the Citizens'
Assemblies to establish a revolutionary government, because
that would be the only other way to carry out the reforms he
had envisioned and initiated — reforms which, in all fairness
and honesty, must be given credit for the improved quality of
life in its many aspects, except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and
certainly unmistakable, in the foregoing pronouncements, it is
that the step taken in connection with the ratification of the
Constitution was meant to be irreversible, and that nothing
anyone could say would make the least difference. And if this
is a correct and accurate assessment of the situation, then we
would say that since it has been brought about by political
action and is now maintained by the government that is in
undisputed authority and dominance, the matter lies beyond
the power of judicial review.
On the other hand, by avowals no less significant if not so
emphatic in terms, President Marcos has professed fealty to
the Constitution. In "Today's Revolution: Democracy" he says:
 I believe, therefore, in the necessity of
Revolution as an instrument of individual and
social change ... but that in a democratic society,
revolution is of necessity, constitutional,
peaceful, and legal.
In his TV address of September 23, 1972, President Marcos
told the nation:
I have proclaimed martial law in accordance with
the powers vested in the President by the
Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil
government functions. The Government of
the Republic of the Philippines which was
established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested
in me by the Constitution to save the Republic
and reform our society...
I have had to use this constitutional power in
order that we may not completely lose the civil
rights and freedom which we cherish...
... We are against the wall. We must now defend
the Republic with the stronger powers of the
Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the
Newsweek Magazine (published in the issue of January 29,
1973), the following appears:
x x x           x x x          x x x
Q. Now that you have gotten off
the constitutional track, won't you
be in serious trouble if you run into
critical problems with your
programs?
R. I have never gotten off the
constitutional track. Everything I
am doing is in accordance with the
1935 Constitution. The only thing
is that instead of 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.
x x x           x x x          x x x
In the light of this seeming ambivalence, the choice of what
course of action to pursue belongs to the President. We have
earlier made reference to subjective factors on which this
Court, to our mind, is in no position to pass judgment. Among
them is the President's own assessment of the will of the
people as expressed through the Citizens Assemblies and of
the importance of the 1973 Constitution to the successful
implementation of the social and economic reforms he has
started or envisioned. If he should decide that there is no
turning back, that what the people recommended through the
Citizens Assemblies, as they were reported to him, demand
that the action he took pursuant thereto be final and
irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that
was followed was not in accordance with the 1935
Constitution and related statutes, we have discharged our
sworn duty as we conceive it to be. The President should now
perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a
consideration, if only to dispel any cloud of doubt that may
now and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated
for resolution is whether or not the new Constitution, since its
submission to the Citizens Assemblies, has found acceptance
among the people, such issue being related to the political
question theory propounded by the respondents. We have not
tarried on the point at all since we find no reliable basis on
which to form a judgment. Under a regime of martial law, with
the free expression of opinions through the usual media
vehicles restricted, we have no means of knowing, to the point
of judicial certainty, whether the people have accepted the
Constitution. In any event, we do not find the issue decisive
insofar as our vote in these cases is concerned. To interpret
the Constitution — that is judicial. That the Constitution should
be deemed in effect because of popular acquiescence — that
is political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant
petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no
more than mere reiterations of the Supplemental Petitions
filed by Counsel Lorenzo M. Tañada on January 15, 1973 in
the so called Plebiscite Cases decided by this Court on
January 22, 1978. Of course, there are amplifications of some
of the grounds previously alleged and in the course of the
unprecedented five-day hearing that was held from February
12 to 16 last, more extensive and illuminating arguments were
heard by Us, but, in my estimation, and with due recognition
of the sincerety, brilliance and eloquence of counsels, nothing
more cogent and compelling than what had already been
previously presented by Counsel Tañada is before Us now.
Accordingly, I cannot see any reason why I should change the
position I took in regard to the earlier cases. I reiterate,
therefore, the vote I cast when these petitions were initially
considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the
issues before the Court and the significance to our people and
in history of the individual stands of the members of the Court
in relation to said issues and to the final outcome of these
cases, and considering that I reserved before the filing of a
more extended opinion, I will take this opportunity to explain
further why I hold that the 1973 Constitution is already in
force, if only to clarify that apart from the people's right of
revolution to which I made pointed reference in my previous
opinion, I can see now, after further reflection, that the vote of
the people in the referendum in the Citizens Assemblies held
on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly
as a political act than as a purely legal one with the result that
such vote to consider the 1973 Constitution as ratified without
the necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution
itself, 1937 of women's suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the 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 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 time, public debates and
discussions on various aspects of proposed amendments
were not uncommon.
Earlier, on November 22, 1972, the Convention had
Resolution No. 5843 proposing "to President Ferdinand
Marcos that a decree be issued calling a plebiscite for
ratification of the proposed new Constitution on appropriate
date as he shall determine and providing for necessary funds
therefor." Acting under this authority, December 1, 1972, the
President issued Presidential Decree No. 73 submitting the
draft constitution for ratification by the people at a plebiscite
set for January 15, 1973. This order contained provisions
more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous
proposed amendments.
In connection with the plebiscite thus contemplated, General
Order No. 17 was issued ordering and enjoining the
authorities to allow and encourage public and free discussions
on proposed constitution. Not only this, subsequently, under
date of December 17, 1972, the President ordered the
suspension the effects of martial law and lifted the suspension
of privilege of the writ of habeas corpus insofar as activities
connected with the ratification of the draft constitution were
concerned. These two orders were not, however, to last very
long. On January 7, 1973, the President, invoking information
related to him that the area of public debate and discussion
had opened by his previous orders was being taken
advantage of by subversive elements to defeat the purposes
for which they were issued and to foment public confusion,
withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3,
1972 Presidential Decree No. 86 creating Citizens Assemblies
"so as to afford ample opportunities for the citizenry to
express their views on important national issues" and one of
the questions presented to said assemblies was: "Do you like
the plebiscite on the proposed Constitution to be held later"
So, the same order of January 7, 1973, General Order No. 20,
the President ordered, "that the plebiscite scheduled to be
held January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President
issued Presidential Decree, No. 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 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;
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?
(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
x x x           x x x          x x x
QUESTION No. 2
 But we do not want the Ad Interim
Assembly to be convoke. Or if it is
to be convened at 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.
The Solicitor General claims, and there seems to be showing
otherwise, that the results of the referendum were determined
in the following manner:
Thereafter, the results of the voting were
collated and sent to the Department of Local
Governments. The transmission of the results
was made by telegram, telephone, the provincial
government SSB System in each province
connecting all towns; the SSB communication of
the PACD connecting most provinces; the
Department of Public Information Network
System; the Weather Bureau Communication
System connecting all provincial capitals and the
National Civil Defense Network connecting all
provincial capitals. The certificates of results
were then flown to Manila to confirm the
previous figures received by the aforementioned
means of transmission. The certificates of
results tallied with the previous figures taken
with the exception of few cases of clerical errors.
The Department adopted a system of
regionalizing the receiving section of the
Citizens Assemblies operation at the
Department wherein the identity of the barrio
and the province was immediately given to a
staff in charge of each region. Every afternoon
at 2:00 o'clock, the 11 regions submitted the
figures they received from the field to the central
committee to tabulate the returns. The last
figures were tabulated at 12 midnight of January
16, 1973 and early morning of January 17, 1973
and were then communicated to the President
by the Department of Local Governments.
The development culminated in the issuance by the President
of Proclamation 1102 on January 17, 1973. Said proclamation
reads:
PROCLAMATION NO. 1102 ANNOUNCING
THE RATIFICATION BY THE FILIPINO
PEOPLE OF THE CONSTITUTION
PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the
nineteen hundred 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 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.
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 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 from six to eight in ordinary cases and from
eight to ten for the declaration of unconstitutionality of a treaty,
executive agreement2 or law, the Court would have to resolve
first as a prejudicial question whether the Court is acting in
these cases as the 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
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 their legality,
not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative
and cumbersome, but more importantly, because the courts
must at the first instance accord due respect to the acts of the
other departments, as otherwise, the smooth running of the
government would have to depend entirely on the unanimity of
opinions among all its departments, which is hardly possible,
unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being
its sole interpreter, which is contrary to all norms of juridical
and political thinking. To my knowledge, there is yet no
country in the world that has recognized judicial supremacy as
its basic governmental principle, no matter how desirable we
might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity
of Our acting on the assumption that this Court is still
functioning under the 1935 Constitution. It is undeniable that
the whole government, including the provincial, municipal and
barrio units and not excluding the lower courts up to the Court
of Appeals, is operating under the 1973 Constitution. Almost
daily, presidential orders and decrees of the most legislative
character affecting practically every aspect of governmental
and private activity as well as the relations between the
government and the citizenry are pouring out from
Malacañang under the authority of said Constitution. On the
other hand, taxes are being exacted and penalties in
connection therewith are being imposed under said orders
and decrees. Obligations have been contracted and business
and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and
employees in big numbers are going on in obedience to them.
For the ten justices of the Supreme Court to constitute an
island of resistance in the midst of these developments, which
even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the
internal workings within the judiciary amount its different
components, what with the lower courts considering such
orders and decrees as forming part of the law of the land in
making their orders and decisions, whereas the Supreme
Court is holding, as it were, their effectivity at bay if it is not
being indifferent to or ignoring them.
It is suggested that the President, being a man of law,
committed to abide by the decision of the Supreme Court, and
if the Court feels that it cannot in the meantime consider the
enforcement of the new Constitution, he can wait for its
decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President,
considers the Supreme Court as still operating under the
Constitution. Quite on the contrary, it is a fact that he has
given instructions for the payment of the justices in
accordance with the rate fixed in the New Constitution. Not
only that, official alter ego, the Secretary of Justice, has been
shoving this Court, since January 18, 1973, all matters related
to the administrative supervision of the lower courts which by
the new charter has been transferred from the Department of
Justice to the Supreme Court, and as far as I know, President
has not countermanded the Secretary's steps in that direction.
That, on the other hand, the President has not augmented the
justices of the Court to complete the prescribed number of
fifteen is, in my appraisal, of no consequence considering that
with the presence of ten justices who are the Court now, there
is a working quorum, and the addition of new justices cannot
in anyway affect the voting on the constitutional questions
now before Us because, while there sufficient justices to
declare by their unanimous vote illegality of Proclamation
1102, the votes of the justices to added would only be
committed to upholding the same, since they cannot by any
standard be expected to vote against legality of the very
Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid
preferable and, even imperative, is that We are dealing here
with a whole constitution that radically modifies or alters only
the form of our government from presidential parliamentary
but also other constitutionally institutions vitally affecting all
levels of society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935
Constitution, with a few improvements. A cursory perusal of
the former should convince anyone that it is in essence a new
one. While it does retain republicanism as the basic
governmental tenet, the institutional changes introduced
thereby are rather radical and its social orientation is
decidedly more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but note
that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity
clauses, involving as they do the statement of general
principles, the citizenship and suffrage qualifications, the
articles on the form of government, the judiciary provisions,
the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the
provisions on the national economy as well as the patrimony
of the nation, not to mention the distinctive features of the
general provisions. What is more, the transitory provisions
notably depart from traditional and orthodox views in that, in
general, the powers of government during the interim period
are more or less concentrated in the President, to the extent
that the continuation or discontinuance of what is now
practically a 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
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 Elections. Furthermore, they emphatically
deny the veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce and
its results were manufactured or prefabricated, considering
that Mr. Francisco Cruz, who is supposed to have submitted
the final report to the President, which served as basis for
Proclamation 1102, had no official authority to render the
same, and it is inconceivable and humanly impossible for
anyone to have been able to gather, tabulate and canvass the
15 million votes allegedly reported within the short period of
time employed. Of course, they also contend that in any
event, there was no proper submission because martial
law per se creates constructive duress which deprives the
voters of the complete freedom needed for the exercise of
their right of choice and actually, there was neither time nor
opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as
counsel for the respondents is that the matter raised in the
petitions is a political one which the courts are not supposed
to inquire into, and, anyway, there has been a substantial
compliance with Article XV of the 1935 Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable
fact is that the voting in the referendum resulted in the
approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the
parties. In my separate opinion in the Plebiscite Cases, I
already made the observation that in view of the lack of
solemnity and regularity in the voting as well as in the manner
of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old
Constitution has been complied with, albeit I held that
nonetheless, the Constitution of 1973 is already in force. In
order, however, to make myself clearer on some relevant
points, I would like to add a few considerations to what I have
already said in the former cases.
In my opinion in those cases, the most important point I took
into account was that in the face of the Presidential
certification through Proclamation 1102 itself that the New
Constitution has been approved by a majority of the people
and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of
the referendum was as the President had stated. I can believe
that the figures referred to in the proclamation may not
accurate, but I cannot say in conscience that all of them are
manufactured or prefabricated, simply because I saw with
own eyes that people did actually gather and listen
discussions, if brief and inadequate for those who are abreast
of current events and general occurrences, and that they did
vote. I believe I can safely say that what I have seen have
also been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not believe to
be possible, that in fact there were actually no meetings held
and no voting done in more places than those wherein there
were such meetings and votings, I am not prepared to
discredit entirely the declaration that there was voting and that
the majority of the votes were in favor of the New Constitution.
If in fact there were substantially less than 14 million votes of
approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a
valid ratification.
It is contended, however, that the understanding was that the
referendum among the Citizens Assemblies was to be in the
nature merely of a loose consultation and not an outright
submission for purposes of ratification. I can see that at the
outset, when the first set of questions was released, such may
have been the idea. It must not be lost sight of, however, that
if the newspaper reports are to be believed, and I say this only
because petitioners would consider the newspapers as the
official gazettes of the administration, the last set of six
questions were included precisely because the reaction to the
idea of mere consultation was that the people wanted greater
direct participation, thru the Citizens Assemblies, in 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 yo
approve of the New Constitution? and (2) Do you want
plebiscite to be called to ratify the new Constitution? should
be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters
mentioned. Accordingly, I take it that if the majority had
expressed disapproval of the new Constitution, the logical
consequence would have been the complete abandonment of
the idea of holding any plebiscite at all. On the other hand, it is
very plain to see that since the majority has already approved
the new Constitution, a plebiscite would be superfluous. Clear
as these rationalizations may be, it must have been thought
that if the holding of a plebiscite was to be abandoned, there
should be a direct and expressed desire of the people to such
effect in order to forestall as much as possible any serious
controversy regarding the non-holding of the plebiscite
required by the letter of Section 16 of Article XVII, the
effectivity clause, of the new Constitution. Oddly enough, the
"comments" accompanying the questions do strongly suggest
this view. And as it turned out, the majority found no necessity
in holding a plebiscite.
In connection with the question, Do you approve of the New
Constitution? capital is being made of the point that as so
framed, the thrust of the said question does not seek an
answer of fact but of opinion. It is argued that it would have
been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have
been weighty were it not unrealistic. I remember distinctly that
the observation regarding the construction of the subject
question was not originally made by any of the talented
counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be
the cause of envy of even professors of English. None of the
other members of the Court, as far as I can recall, ever
noticed how the said question is phrased, or if anyone of Us
did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the
distinguished and learned counsels nor any member of the
Court understood the said question otherwise than calling for
a factual answer instead of a mere opinion, how could anyone
expect the millions of unlettered members of the Citizens
Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference
until Justice Castro gave it emphasis. Besides, reading the
question in the light of the accompanying "comment"
corresponding to it in particular, I am certain that any one who
answered the same understood it in no other sense than a
direct inquiry as to whether or not, as a matter of fact, he
approves the New Constitution, and naturally, affirmative
answer must be taken as a categorical vote of approval
thereof, considering, particularly, that according to the
reported result of the referendum said answer was even
coupled with the request that the President defer the
convening of the Interim National Assembly.
It is also contended that because of this reference in answer
to that question to the deferment of the convening of the
interim assembly, the said answer is at best a conditional
approval not proper nor acceptable for purposes of ratification
plebiscite. The contention has no basis. In interest of
accuracy, the additional answer proposed in pertinent
"comment" reads as follows: "But we do not want Ad Interim
Assembly to be convoked etc." On the assumption that the
actual answer, as reported, was of similar tenor, it is not fair to
ascribe to it the imposition of a condition. At most, the
intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a
martial law was declared, the circumstances surrounding
making of the Constitution acquired a different and more
meaningful aspect, namely, the formation of a new society.
From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet
situation created by the subversive elements was to introduce
immediately effective reforms calculated to redeem the people
from the depth of retrogression and stagnation caused by
rampant graft and corruption in high places, influence
peddling, oligarchic political practices, private armies,
anarchy, deteriorating conditions of peace and order, the so
inequalities widening the gap between the rich and the poor,
and many other deplorable long standing maladies crying for
early relief and solution. Definitely, as in the case of rebellious
movement that threatened the Quirino Administration, the
remedy was far from using bullets alone. If a constitution was
to be approved as an effective instrument towards the
eradication of such grave problems, it had to be approved
without loss of time and sans the cumbersome processes
that, from the realistic viewpoint, have in the past obstructed
rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident objective in
having a new constitution is to establish new directions in the
pursuit of the national aspirations and the carrying out of
national policies. Only by bearing these considerations in
mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as
evidence of corruption of the will of those who attended the
assemblies, but actually, they may also be viewed in the same
light as the sample ballots commonly resorted to in the
elections of officials, which no one can contend are per
se means of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are
not generally possible, nor practical, considering the need for
faster decisions and more resolute action. After all voting on a
whole new constitution is different from voting on one, two or
three specific proposed amendments, the former calls for
nothing more than a collective view of all the provisions of the
whole charter, for necessarily, one has to take the good
together with the bad in it. It is rare for anyone to reject a
constitution only because of a few specific objectionable
features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the
people the paths open to them in their quest for the
betterment of their conditions, and as long as it is not shown
that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will,
I am not convinced that the existence of said "comments"
should make any appreciable difference in the court's
appraisal of the result of the referendum.
I must confess that the fact that the referendum was held
during martial law detracts somehow from the value that the
referendum would otherwise have had. As I intimated,
however, in my former opinion, it is not fair to condemn and
disregard the result of the referendum barely because of
martial law per se. For one thing, many of the objectionable
features of martial law have not actually materialized, if only
because the implementation of martial law since its inception
has been generally characterized by restraint and
consideration, thanks to the expressed wishes of the
President that the same be made "Philippine style", which
means without the rigor that has attended it in other lands and
other times. Moreover, although the restrictions on the
freedom of speech, the press and movement during martial
law do have their corresponding adverse effects on the area
of information which should be open to a voter, in its real
sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ
of habeas corpus. The reason is simply that a man may freely
and correctly vote even if the needed information he
possesses as to the candidates or issues being voted upon is
more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of
the cause thereof, that is something else which may actually
cause him to cast a captive vote. Thus it is the suspension of
the writ of habeas corpus accompanying martial law that can
cause possible restraint on the freedom choice in an election
held during martial law. It is a fact, however, borne by history
and actual experience, that in the Philippines, the suspension
of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that
only those who run afoul the law, saving inconsequential
instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is
recorded that in the elections 1951 and 1971, held while the
privilege of writ of habeas corpus was under suspension, the
Filipino voters gave the then opposition parties overwhelming
if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not
trying to show that the result of the referendum may
considered as sufficient basis for declaring that the New
Constitution has been ratified in accordance with the
amending clause of the 1935 Constitution. I reiterate that in
point of law, I find neither strict nor substantial compliance.
The foregoing discussion is only to counter, if I may, certain
impression regarding the general conditions obtaining during
and in relation to the referendum which could have in one way
or another affected the exercise of the freedom of choice and
the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may
be relevant in my subsequent discussions of the acceptance
by the people of the New Constitution they may also be
considered.
IV
It is my sincere conviction that the Constitution of 1973 has
been accepted or adopted by the people. And on this premise,
my considered opinion is that the Court may no longer decide
these cases on the basis of purely legal considerations.
Factors which are 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 referring to the results announced in the
proclamation itself. Giving substantial allowances for possible
error and downright manipulation, it must not be overlooked
that, after all, their having been accepted and adopted by the
President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate
officials, elevated them to the category of an act of a
coordinate department of the government which under the
principle separation of powers is clothed with presumptive
correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due
to the unorthodoxy of the procedure adopted and the difficulty
of an accurate checking of all the figures, I am unable to
conceive of any manageable means of acquiring information
upon which to predicate a denial, I have no alternative but to
rely on what has been officially declared. At this point, I would
venture to express the feeling that if it were not generally
conceded that there has been sufficient showing of the
acceptance in question by this time, there would have been
already demonstrative and significant indications of a rather
widespread, if not organized resistance in one form or
another. Much as they are to be given due recognition as
magnificent manifestations of loyalty and devotion to
principles, I cannot accord to the filing of these cases as
indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the
Court in Tolentino vs. Comelec, 41 SCRA 702, I made strong
and unequivocal pronouncements to the effect that any
amendment to the Constitution of 1935, to be valid, must
appear to have been made in strict conformity with the
requirements of Article XV thereof. What is more, that
decision asserted judicial competence to inquire into the
matter of compliance or non compliance as a justiciable
matter. I still believe in the correctness of those views and I
would even add that I sincerely feel it reflects the spirit of the
said constitutional provision. Without trying to strain any point
however, I, submit the following considerations in the context
of the peculiar circumstances of the cases now at bar, which
are entirely different from those in the backdrop of the
Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not
just an amendment of a particular provision of an existing
Constitution; here, it is, as I have discussed earlier above, an
entirely new Constitution that is being proposed. This
important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat
and Roy, who was himself the petitioner in the case I have
just referred to is, now inviting Our attention to the exact
language of Article XV and suggesting that the said Article
may be strictly applied to proposed amendments but may
hardly govern the ratification of a new Constitution. It is
particularly stressed that the Article specifically refers to
nothing else but "amendments to this Constitution" which if
ratified "shall be valid as part of this Constitution." Indeed,
how can a whole new constitution be by any manner of
reasoning an amendment to any other constitution and how
can it, if ratified, form part of such other constitution? In fact, in
the Tolentino case I already somehow hinted this point when I
made reference in the resolution denying the motion for
reconsideration to the fact that Article XV must be followed "as
long as any amendment is formulated and submitted under
the aegis of the present Charter." Said resolution even added.
"(T)his is not to say that the people may not, in the exercise of
their inherent revolutionary powers, amend the Constitution or
promulgate an entirely new one otherwise.".
It is not strange at all to think that the amending clause of a
constitution should be confined in its application only to
proposed changes in any part of the same constitution itself,
for the very fact that a new constitution is being adopted
implies a general intent to put aside the whole of the old one,
and what would be really incongrous is the idea that in such
an eventuality, the new Constitution would subject its going
into effect to any provision of the constitution it is to
supersede, to use the language precisely of Section 6, Article
XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born,
they very rarely, if at all, come into being, by virtue of any
provision of another constitution. 3 This must be the reason
why every constitution has its own effectivity clause, so that if,
the Constitutional Convention had only anticipated the idea of
the referendum and provided for such a method to be used in
the 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 regular session. It must be assumed
that being composed of experienced, knowledgeable and
courageous members, it would not have been difficult for said
parliamentary bodies to have conceived some ingenious way
of giving evidence of their determined adherence to the
Constitution under which they were elected. Frankly, much as
I admire the efforts of the handful of senators who had their
picture taken in front of the padlocked portals of the Senate
chamber, I do not feel warranted to accord such act as
enough token of resistance. As counsel Tolentino has
informed the court, there was noting to stop the senators and
the congressmen to meet in any other convenient place and
somehow officially organize themselves in a way that can
logically be considered as a session, even if nothing were
done than to merely call the roll and disperse. Counsel
Tolentino even pointed out that if there were not enough
members to form a quorum, any smaller group could have
ordered the arrest of the absent members. And with particular
relevance to the present cases, it was not constitutionally
indispensable for the presiding officers to issue any call to the
members to convene, hence the present prayers
for mandamus have no legal and factual bases. And to top it
all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out
of less than 120 members of the House of Representatives,
have officially and in writing exercised the option given to
them to join the Interim National Assembly under the New
Constitution, thereby manifesting their acceptance of the new
charter.
Now, having these facts in mind, and it being obvious that of
the three great departments of the government under the
1935 Constitution, two, the Executive and the Legislative,
have already accepted the New Constitution and recognized
its enforceability and enforcement, I cannot see how this
Supreme Court can by judicial fiat hold back the political
developments taking place and for the sake of being the
guardian of the Constitution and the defender of its integrity
and supremacy make its judicial power prevail against the
decision of those who were duly chosen by the people to be
their authorized spokesmen and representatives. It is not
alone the physical futility of such a gesture that concerns me.
More than that, there is the stark reality that the Senators and
the Congressmen, no less than the President, have taken the
same oath of loyalty to the Constitution that we, the Justices,
have taken and they are, therefore, equally bound with Us to
preserve and protect the Constitution. If as the
representatives of the people, they have already opted to
accept the New Constitution as the more effective instrument
for fulfillment of the national destiny, I really wonder if there is
even any idealistic worth in our desperately clinging by
Ourselves alone to Our sworn duty 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 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
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 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.
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).
In 1957, Mr. Chief Justice Roberto Concepcion, then
Associate Justice, in behalf of the Court, defined a political
question as one which, under the Constitution, is "to be
decided by the people in their sovereign capacity, or in regard
to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada,
et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for
ratification." Under Article XV of the 1935 Constitution, the
power to propose constitutional amendments is vested in
Congress or in a constitutional convention; while the power to
ratify or reject such proposed amendments or new
Constitution is reserved by the sovereign people. The
nullification of Proclamation No. 1102 would inevitably render
inoperative the 1973 Constitution, which is in fact the express
prayer of the petitioners in G.R. No. L-36164. Regardless of
the modality of submission or ratification or adoption — even if
it deviates from or violates the procedure delineated therefore
by the old Constitution — once the new Constitution is ratified,
adopted and/or acquiesced in by the people or ratified even
by a body or agency not duly authorized therefor but is
subsequently adopted or recognized by the people and by the
other official organs and functionaries of the government
established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification,
adoption or acquiescence and of the consequent effectivity of
the new Constitution. This is as it should be in a democracy,
for the people are the repository of all sovereign powers as
well as the source of all governmental authority (Pole vs.
Gray, 104 SO 2nd 841 [1958]). This basic democratic concept
is expressly restated in Section 1 of Article II of the
Declaration of Principles of the 1935 and 1973 Constitutions,
thus: "Sovereignty resides in the people and all government
authority emanates from them."
The legality of the submission is no longer relevant; because
the ratification, adoption and/or acquiescence by the people
cures any infirmity in its submission or any other irregularities
therein which are deemed mandatory before submission as
they are considered merely directory after such ratification or
adoption or acquiescence by the people. As Mr. Justice
Brewer, then of the Kansas State Supreme Court and later
Associate Justice of the Federal Supreme Court, stated in re
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint
499, 506): "The two important, vital elements of the
Legislature and a majority of the popular vote. Beyond these,
other provisions are mere machineries and forms. They may
not be disregarded, because by them certainty as to the
essentials is secured. But they are not themselves the
essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64,
1939).
This was the ruling by the American Supreme Court in the
1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed.
1385), where Chief Justice Hughes, speaking for the majority,
stated that:
... Thus the political departments of the
government dealt with the effect of both previous
rejection and attempted withdrawal and
determined that both were ineffectual in the
presence of an actual ratification ... . This
decision by the political departments of the
Government as to the validity of the adoption of
the Fourteenth amendment has been accepted.
We think that in accordance with this historic
precedent the question of the efficacy of
ratifications by state legislatures, in the light of
previous rejection or attempted withdrawal,
should be regarded as a political question
pertaining to the political departments, with the
ultimate authority in the Congress in the
exercise of its control over the promulgation of
the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his
concurring opinion, in which Mr. Justices Roberts, Frankfurter,
and Douglas join, thus:
The Constitution grants Congress exclusive
power to control submission of constitutional
amendments. Final determination by Congress
that ratification by three-fourths of the States has
taken place "is conclusive upon the courts." In
the exercise of that power, Congress, of course,
 is governed by the Constitution. However,
whether submission, intervening procedure or
Congressional determination of 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:
Indeed, the power to amend the Constitution or
to propose amendments thereto is not included
in the general grant of legislative powers to
Congress. It is part of the inherent powers of
the people — as the repository of sovereignty in
a republican state, such as ours — to make, and
hence, to amend their own Fundamental Law.
Congress may propose amendments to the
same explicitly grants such power. Hence, when
exercising the same, it is said that Senators and
Members of the House of Representatives
 act, not as members, but as component
elements of a constituent assembly. When
acting as such, the members of Congress derive
their authority from the Constitution, unlike the
people, when performing the same function, for
their authority does not emanate from the
Constitution — they are the very source of all
powers of government, including the
Constitution itself. (21 SCRA 787)
We did not categorically and entirely overturn the doctrine
in Mabanag vs. Lopez Vito (78 Phil. 1) that both the proposal
to amend and the ratification of such a constitutional
amendment are political in nature forming as they do the
essential parts of one political scheme — the amending
process. WE merely stated therein that the force of the ruling
in the said case of Mabanag vs. Lopez Vito has been
weakened by subsequent cases. Thus, We pronounced
therein:
It is true that in Mabanag vs. Lopez Vito, this
Court characterizing the issue submitted thereto
as a political one, declined to pass upon the
question whether or not a given number of votes
cast in Congress in favor of a proposed
amendment to the Constitution — which was
being submitted to the people for ratification —
satisfied the three fourths vote requirement of
the fundamental law. The force of this precedent
has been weakened, however, by Suanes vs.
Chief Accountant of the Senate, Avelino vs.
Cuenco, Tañada vs. Cuenco and Macias vs.
Commission on Elections. In the first, we held
the officers and employees of the Senate
Electoral Tribunal are supervision and control,
not of that of the Senate President, claimed by
the latter; in the second, this Court proceeded to
determine the number of Senators necessary
for a quorum in the Senate; in the third we
nullified the election, by Senators belonging to
the party having the largest number of votes in
said chamber purporting to act on behalf of the
party having the second largest number of votes
therein, of two (2) Senators belonging to the first
party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of Congress
purporting to apportion the representative
districts for the House of Representatives, upon
the ground that the apportionment had not been
made as may be possible according to the
number of inhabitants of each province. Thus we
rejected the theory advanced in these four (4)
cases, that the issues therein raised were
political questions the determination of which is
beyond judicial review. (21 SCRA pp. 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
began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General
Cornwallis at Yorktown, Virginia, on October 19,
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted
their Articles of Confederation and Perpetual Union, that was
written from 1776 to 1777 and ratified on March 1, 1781
(Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six
thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal
Constitutional Convention "for the sole and express purpose
of revising the articles of confederation ... ." (Appendix I,
Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787.
Article XIII of the Articles of Confederation and Perpetual
Union stated specifically:
The articles of this confederation shall be
inviolably observed in every state, and the union
shall be perpetual; nor shall any alterations at
any time hereafter be made in any of them;
unless such alteration be agreed to in a
congress of the united states, and be afterwards
confirmed by the legislatures of every state.
(See the Federalist, Appendix II, Modern Library
Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of
Confederation and Perpetual Union for the alteration for the
ratification of the Federal Constitution as drafted by the
Philadelphia Convention were not followed. Fearful the said
Federal Constitution would not be ratified by the legislatures
as prescribed, the Philadelphia Convention adopted a
resolution requesting the Congress of the Confederation to
pass a resolution providing that the Constitution should be
submitted to elected state conventions and if ratified by the
conventions in nine (9) states, not necessarily in all thirteen
(13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton
University recorded that:
It would have been a counsel of perfection to
consign the new constitution to the tender
mercies of the legislatures of each and all of the
13 states. Experience clearly indicated that
ratification then would have had the same
chance as the scriptural camel passing through
the eye of a needle. It was therefore determined
to recommend to Congress that the new
Constitution be submitted to conventions in the
several states especially elected to pass upon it
and that, furthermore, the new government
should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The
Federalist, Modern Library Ed., 1937,
Introduction by Edward Earle Mead, pp. 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
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 objected by some members, that they had
no power, no authority, to construct a new
government. They had no authority, if their
decisions were to be final; and no authority
whatsoever, under the articles of confederation,
to adopt the course they did. But they knew that
their labors were only to be suggestions; and
that they as well as any private individuals, and
any private individuals as well as they, had a
right to propose a plan of government to the
people for their adoption. They were, in fact, a
mere assemblage of private citizens, and their
work had no more binding sanction than a
 constitution drafted by Mr. Hamilton in his office
would have had. The people, by their expressed
will, transformed this suggestion, this proposal,
into an organic law, and the people might have
done the same with a constitution submitted to
them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised
or new constitution, the framing or submission of
the instrument is not what gives it binding force
and effect. The fiat of the people and only the
fiat of the people, can breathe life into a
constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never
justified in placing by implication a limitation
upon the sovereign. This would be an
authorized exercise of sovereign power by the
court. In State v. Swift, 69 Ind. 505, 519, the
Indiana Supreme Court said: "The people of a
State may form an original constitution, or
abrogate an old one and form a new one, at any
time, without any political restriction except the
constitution of the United States; ... ." (37 SE
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 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, ... ." (R.M. MacIver, The Web of Government, 1965 ed.,
p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and
Perpetual Union that was in force from July 12, 1776 to 1788,
forged as it was during the war of independence was a
revolutionary constitution of the thirteen (13) states. In the
existing Federal Constitution of the United States which was
adopted seven (7) or nine (9) years after the thirteen (13)
states won their independence and long after popular support
for the government of the Confederation had stabilized was
not a product of a revolution. The Federal Constitution was a
"creation of the brain and purpose of man" in an era of peace.
It can only be considered revolutionary in the sense that it is a
radical departure from its predecessor, the Articles of
Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal
Constitution of the United States is not the successor to the
Articles of Confederation and Perpetual Union. The fallacy of
the statement is so obvious that no further refutation is
needed.
As heretofore stated, the issue as to the validity of
Proclamation No. 1102 strikes at the validity and enforceability
of the 1973 Constitution and of the government established
and operating thereunder. Petitioners pray for a declaration
that the 1973 Constitution is inoperative (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
previous doctrine, we do not content ourselves
with a mere citation of the cases, but state more
at length than we otherwise would the issues
and the doctrine expounded in the leading and
absolutely controlling case — Luther v.
Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this
inquiry, proposed by the plaintiff, and it should
be decided that the character government had
no legal existence during the period of time
above mentioned, — if it had been annulled by
the adoption of the opposing government,
— then the laws passed by its legislature during
that time were nullities; its taxes wrongfully
collected, its salaries and compensations to its
officers illegally paid ; its public accounts
improperly settled and the judgments and
sentences of its courts in civil and criminal
cases null and void, and the officers who carried
their decisions into operation answerable as
trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the
Constitution of the United States shall guarantee
to every state in the Union a republican form of
government, and shall protect each of them
against invasion; and on the application of the
Legislature or of the Executive (when the
legislature cannot be convened) against
domestic violence.
"Under this article of the Constitution it rests with
Congress to decide what government is
established one in a state. For, as the United
State guarantee to each state a republican
government, Congress must necessarily decide
what government is established in the state
before it can determine whether it is republican
or not. And when the senators and
representatives of a state are admitted into the
Councils of the Union, the authority of the
government under which they were appointed,
as well as its republican character, is recognized
by the proper constitutional authority. And its
decision is binding on every other department of
the government, and could not be questioned in
a judicial tribunal. It is true that the contest in this
case did not last long enough to bring the matter
to this issue; and as no senators or
representatives were elected under the authority
of the government of which Mr. Dorr was the
head, Congress was not called upon to decide
the controversy. Yet the right to decide is placed
there and not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which
indirectly or incidentally refer to the subject, but
conclude by directing attention to the statement
by the court, speaking through Mr. Chief Justice
Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44
L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where,
after disposing of a contention made concerning
the 14th Amendment, and coming to consider a
proposition which was necessary to be decided
concerning the nature and effect of the guaranty
of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be
read with S 4 of article 4, of the Constitution,
providing that the United States shall guarantee
to every state in this Union a republican form of
government, and shall protect each of them
against invasion; and on application of the
legislature, or the Executive (when the
legislature cannot be convened), against
domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of
this guaranty belonged to the political
department. Luther v. Borden, 7 How. 1, 12
L.ed. 581. In that case it was held that the
question, which of the two opposing
governments of Rhode Island, namely, the
charter government or the government
established by a voluntary convention, was the
legitimate one, was a question for the
determination of the political department; and
when that department had decided, the courts
were bound to take notice of the decision and
follow it."
xxx xxx xxx
As the issues presented, in their very essence,
are, and have long since by this Court been,
definitely determined to be political and
governmental, and embraced within the scope of
the scope of the powers conferred upon
Congress, and not, therefore within the reach of
judicial power, it follows that the case presented
is not within our jurisdiction, and the writ of error
must therefore be, and it is, dismissed for want
of jurisdiction. (223 U.S. pp. 142-151; emphasis
supplied).
Even a constitutional amendment that is only promulgated by
the Constitutional Convention without authority therefor and
without submitting the same to the people for ratification,
becomes valid, when recognized, accepted and acted upon
the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of Taylor vs.
Commonwealth (44 SE 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. ... Substance more
than form must be regarded in considering
whether the complete constitutional system for
submitting the proposal to amend the
constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the
Court stated:
There may be technical error in the manner in
which a proposed amendment is adopted, or in
its advertisement, yet, if followed, unobjected to,
by approval of the electors, it becomes part of
the Constitution. Legal complaints to the
submission may be made prior to taking the
vote, but, if once sanctioned, the amendment is
embodied therein, and cannot be attacked,
either directly or collaterally, because of any
 mistake antecedent thereto. Even though it be
submitted at an improper time, it is effective for
all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A.
263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its
authority, such act becomes valid upon ratification or adoption
or acquiescence by the people. Thus, in the 1905 case of Ex
parte Birmingham and A.R. Company (42 SO pp. 118 & 123),
the Alabama Supreme Court upheld this principle and stated
that: "The authorities are almost uniform that this ratification of
an unauthorized act by the people (and the people are the
principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters
ratifying the new Constitution are registered in the book of
voters; it is enough that they are electors voting on the new
Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251,
emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW
2nd 370, 375), the Supreme Court of Wisconsin ruled that
"irregularity in the procedure for the submission of the
proposed constitutional amendment will not defeat the
ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103
SO 2nd 769), the Alabama Supreme Court pronounced that
"the irregularity in failing to publish the proposed constitutional
amendment once in each of the 4 calendar weeks next
preceding the calendar week in which the election was held or
once in each of the 7-day periods immediately preceding the
day of the election as required by the Constitution, did not
invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi
Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45
462), where they admitted irregularities or illegalities
committed in the procedure for submission of the proposed
constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a sufficient
number of ballot boxes 'secured by good and substantial
locks,' as provided by Section 3249, Code of 1942, Rec., to be
used in the holding of the special election on the constitutional
amendment, and (b) the alleged failure of the State Election
Commissioners to comply with the requirements of Code
Sections 3204 and 3205 in the appointment of election
commissioners in each of the 82 counties. The irregularities
complained of, even if proved, were not such irregularities
would have invalidated the election." (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of
the Constitutional Convention and during the deliberations of
the Constitutional Convention from June 1, 1971 until martial
law was proclaimed on Sept. 21, 1972, the salient reforms
contained in the 1973 Constitution which have long been
desired by the people, had been thoroughly discussed in the
various committees of the Constitutional Convention, on the
floor of the Convention itself, in civic forums and in all the
media of information. Many of the decrees promulgated by the
Chief Executive from Sept. 22, 1972 to Jan. 17, 1973
implement some of the reforms and had been ratified in Sec.
3(2) of Article XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the
majority of the people cannot freely vote for these reforms and
are not complying with the implementing decrees promulgated
by the President.
Free election is not inevitably incompatible with martial law.
We had free elections in 1951 and 1971 when the opposition
won six out of eight senatorial seats despite the suspension of
the privileges of the writ of habeas corpus (see Lansang vs.
Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which
suspension implies constraint on individual freedom as the
proclamation of martial law. In both situations, there is no total
blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas
or Liberals, as well as officials of the Legislative and Executive
branches of the government elected and/or appointed under
the 1935 Constitution have either recognized or are now
functioning under the 1973 Constitution, aside from the fact of
its ratification by the sovereign people through the Citizens
Assemblies. 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
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 of great
popular excitement, it is usually their last resort,
yet it should at the same time be careful to
overstep the proper bounds of its power, as
being perhaps equally dangerous; and
especially where such momentous results might
follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty
required, the overthrow of the work of the
convention.
After the American Revolution the state of
Rhode Island retained its colonial character as
its constitution, and no law existed providing for
the making of a new one. In 1841 public
meetings were held, resulting in the election of a
convention to form a new one, — to be
submitted to a popular vote. The convention
framed one, submitted it to a vote, and declared
it adopted. Elections were held for state officers,
who proceeded to organize a new government.
The charter government did not acquiesce in
these proceedings, and finally declared the state
under martial law. It called another convention,
which in 1843 formed a new
constitution. Whether the charter government, or
the one established by the voluntary convention,
was the legitimate one, was uniformly held by
the courts of the state not to be a judicial, but a
political question; and the political department
having recognized the one, it was held to be the
duty of the judiciary to follow its decision. The
supreme court of the United States, in Luther v.
Borden, 7 How. 1, while not expressly deciding
the principle, as it held the federal court, yet in
the argument approves it, and in substance
says that where the political department has
decided such a matter the judiciary should abide
by it.
Let us illustrate the difficulty of a court deciding
the question: Suppose this court were to hold
that the convention, when it reassembled, had
no power to make any material amendment, and
that such as were made are void by reason of
the people having theretofore approved the
instrument. Then, next, this court must
determine what amendments were material; and
we find the court, in effect, making a
constitution. This would be arrogating
sovereignty to itself. Perhaps the members of
the court might differ as to what amendments
are material, and the result would be confusion
and anarchy. One judge might say that all the
amendments, material and immaterial, were
void; another, that the convention had then the
implied power to correct palpable errors, and
then the court might differ as to what
amendments are material. If the instrument as
ratified by the people could not be corrected or
altered at all, or if the court must determine what
changes were material, then the instrument, as
passed upon by the people or as fixed by the
court would be lacking a promulgation by the
convention; and, if this be essential, then the
question would arise, what constitution are we
now living under, and what is the organic law of
the state? A suggestion of these matters shows
what endless confusion and harm to the state
might and likely would arise. If, through error of
opinion, the convention exceeded its power, and
the people are dissatisfied, they have ample
remedy, without the judiciary being asked to
overstep the proper limits of its power. The
instrument provides for amendment and
change. If a wrong has been done, it can, in the
proper way in which it should be remedied, is by
the people acting as a body politic. It is not a
question of whether merely an amendment to a
constitution, made without calling a convention,
has been adopted, as required by that
constitution. If it provides how it is to be done,
 then, unless the manner be followed, the
judiciary, as the interpreter of that constitution,
will declare the amendment invalid. Koehler v.
Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15
N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12
Pac. Rep. 835. But it is a case where a new
constitution has been formed and promulgated
according to the forms of law. Great interests
have already arisen under it; important rights
exist by virtue of it; persons have been
convicted of the highest crime known to the law,
according to its provisions; the political power of
the government has in many ways recognized it;
and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and
now the organic law of our commonwealth.
We need not consider the validity of the
amendments made after the convention
reassembled. If the making of them was in
excess of its powers, yet, as the entire
instrument has been recognized as valid in the
manner suggested, it would be equally an abuse
of power by the judiciary and violative of the
rights of the people, — who can and properly
should remedy the matter, if not to their liking, —
if it were to declare the instrument of a portion
invalid, and bring confusion and anarchy upon
the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102
and consequently of the adoption of the 1973 Constitution it
would be exercising a veto power on the act of the sovereign
people, of whom this Court is merely an agent, which to say
the least, would be anomalous. This Court cannot dictate to
our principal, the sovereign people, as to how the approval of
the new Constitution should be manifested or expressed. The
sovereign people have spoken and we must abide by their
decision, regardless of our notion as to what is the proper
method of giving assent to the new Charter. In this respect,
WE cannot presume to know better than the incumbent Chief
Executive, who, unlike the members of this Court, only last
January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres.
Election Contest No. 3, Jan. 8, 1973), was 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." * (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
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 Constitution was ratified by the overwhelming vote of
close to 15 million citizens because there was no official
certification to the results of the same from the Department of
Local Governments. But there was such certification as per
Annex 1 to 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. 112-11 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 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. "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
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 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.
[1949] 83 Phil. 17), if they believe most vehemently in the
justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or
acquiesced in by the people since January 18, 1973 until the
present. The proclaimed conviction of petitioners in L-36165
on this issue would have a ring of credibility, if they proceeded
first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he
who exhorts others to be brave must first demonstrate his own
courage. Surely, they will not affirm that the mere filing of their
petition in 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., concurring:
Pursuant to Our reservation, We now discuss the other issues
raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S
RATIFICATION, ADOPTION OR ACQUIESCENCE
CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which
affirm the proposition that the question as to whether a
constitutional amendment or the revised or new Constitution
has been validly submitted to the people for ratification in
accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption
of validity to the constitutional amendment or the revised or
new Constitution after the government officials or the people
have adopted or ratified or acquiesced in the new Constitution
or amendment, although there was an illegal or irregular or no
submission at all to the people. (Collier vs. Gray, 4th Dec. Dig.
935 [1934], Hammond vs. Clark, 71 SE 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 aforesaid branches of the Government in its
proceedings, including the printing of its own journals (Tañada
and Fernando, Constitution of the Philippines, 1952 ed., Vol. I,
pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz
vs. Autry, 91 Pac. 193). Implicit in that independence, for the
purpose of maintaining the same unimpaired and in order that
its work will not be frustrated, the Convention has the power to
fix the date for the plebiscite and to provide funds therefor. To
deny the Convention such prerogative, would leave it at the
tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be
disposed to submit the proposed Constitution drafted by the
Constitutional Convention to the people for ratification, much
less appropriate the necessary funds therefor. That could
have been the fate of the 1973 Constitution, because the
same abolished the Senate by creating a unicameral National
Assembly to be presided by a Prime Minister who wields both
legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new
Constitution exercises primarily ceremonial prerogatives. The
new Constitution likewise shortened abruptly the terms of the
members of the present Congress (whose terms end on
December 31, 1973, 1975 and 1977) which provides that the
new Constitution shall take effect immediately upon its
ratification (Sec. 16, Article XVII, 1973 Constitution). The fact
that Section 2 of the same Article XVIII secures to the
members of Congress membership in the interim National
Assembly as long as they opt to serve therein within thirty (30)
days after the ratification of the proposed Constitution, affords
them little comfort; because the convening of the interim
National Assembly depends upon the incumbent President
(under Sec. 3[1], Art. XVII, 1973 Constitution). Under the
foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be
disposed to call a plebiscite and appropriate funds therefor to
enable the people to pass upon the 1973 Constitution,
ratification of which means their elimination from the political
scene. They will not provide the means for their own
liquidation.
Because the Constitutional Convention, by necessary
implication as it is indispensable to its independence and
effectiveness, possesses the power to call a plebiscite and to
appropriate funds for the purpose, it inescapably must have
the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate
time for such a referendum as well as the amount necessary
to effect the same; for which reason the Convention thru
Resolution No. 29 approved on November 22, 1972, which
superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a decree be issued
calling a plebiscite for the ratification of the proposed new
Constitution such appropriate date as he shall determine and
providing for the necessary funds therefor, ...," after stating in
"whereas" clauses that the 1971 Constitutional Convention
expected to complete its work by the end of November, 1972
that the urgency of instituting reforms rendered imperative the
early approval of the new Constitution, and that the national
and local leaders desire that there be continuity in the
immediate transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his
subaltern the power to promulgate subordinate rules and
regulations to implement the law, this authority to delegate
implementing rules should not be denied to the Constitutional
Convention, a 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 ... ." (Emphasis supplied). Hence, as
consultative bodies representing the localities including the
barrios, their creation by the President thru Presidential
Decree No. 86 of December 31, 1972, cannot be successfully
challenged.
The employment by the President of these Citizens'
Assemblies for consultation on the 1973 Constitution or on
whether there was further need of a plebiscite thereon, —
both issues of national concern — is still within the delegated
authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded
Resolution No. 5843, does not prescribe that the plebiscite
must be conducted by the Commission on Elections in
accordance with the provisions of the 1971 Revised Election
Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily
included the necessary phrase for the purpose, some such
phrase like "to call a plebiscite to be supervised by the
Commission on Elections in accordance with the provisions of
the 1971 Revised Election Code (or with existing laws)." That
the Constitutional Convention omitted such phrase, can only
mean that it left to the President the determination of the
manner by which the plebiscite should be conducted, who
shall supervise the plebiscite, and who can participate in the
plebiscite. The fact that said Resolution No. 29 expressly
states "that copies of this resolution as approved in plenary
session be transmitted to the President of the Philippines and
the Commission on Elections for implementation," did not in
effect designate the Commission on Elections as supervisor of
the plebiscite. The copies of said resolution that were
transmitted to the Commission on Elections at best serve
merely to notify the Commission on Elections about said
resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was
left to the discretion of the President, who, because he is in
possession of all the facts funnelled to him by his intelligence
services, was in the superior position to decide when the
plebiscite shall be held, how it shall be conducted and who
shall oversee it.
It should be noted that in approving said Resolution No. 29,
the Constitutional Convention itself recognized the validity of,
or validated Presidential Proclamation No. 1081 placing the
entire country under martial law by resolving to "propose to
President Ferdinand E. Marcos that a decree be issued calling
a plebiscite ... ." The use of the term "decree" is significant for
the basic orders regulating the conduct of all inhabitants are
issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial law.
Consequently, the issuance by the President of Presidential
Decree No. 73 on December 1, 1972 setting the plebiscite on
January 15, 1973 and appropriating funds therefor pursuant to
said Resolution No. 29, is a valid exercise of such delegated
authority.
Such delegation, unlike the delegation by Congress of the
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:
... Once this work of drafting has been
completed, it could itself direct the submission to
the people for ratification as contemplated in
Article XV of the Constitution. Here it did not do
so. With Congress not being in session, could
the President, by the decree under question, call
for such a plebiscite? Under such
circumstances, a negative answer certainly
could result in the work of the Convention being
rendered nugatory. The view has been
repeatedly expressed in many American state
court decisions that to avoid such undesirable
consequence the task of submission becomes
ministerial, with the political branches devoid of
any discretion as to the holding of an election for
that purpose. Nor is the appropriation by him of
the amount necessary to be considered as
offensive to the Constitution. If it were done by
him in his capacity as President, such an
objection would indeed have been formidable,
not to say insurmountable. If the appropriation
were made in his capacity as agent of the
Convention to assure that there be submission
to the people, then such an argument loses
force. The Convention itself could have done so.
 It is understandable why it should be thus. If it
were otherwise, then a legislative body, the
appropriating arm of the government, could
conceivably make use of such authority to
compel the Convention to submit to its wishes,
on pain of being rendered financially distraught.
The President then, if performing his role as its
agent, could be held as not devoid of such
competence. (pp. 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 ground
that it contains provisions which are ultra vires or beyond the
power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of
government from Presidential to Parliamentary and including
such provisions as Section 3 of Article IV, Section 15 of Article
XIV and Sections 3(2) and 12 of Article XVII in the 1973
Constitution.
Article IV —
Sec. 3. The right of the people to be secure in
their persons, houses, papers, and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall not
be violated, and no search warrant or warrant of
arrest shall issue except upon probable cause to
be determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of
the complainant and the witnesses may
produce, and particularly describing the place to
be searched, and the persons or things to be
seized.
Article XIV —
Sec. 15. Any provision of paragraph one,
Section fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter
into international treaties or agreements as the
national welfare and interest may require."
(Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees,
instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of
the law of the land, and shall remain valid, legal,
binding and effective even after lifting of martial
law or the ratification of this Constitution, unless
modified, revoked, or superseded by
subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent
President, or unless expressly and explicitly
modified or repealed by the regular National
Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and
contracts entered into by the Government, or
any subdivision, agency, or instrumentality
thereof, including government-owned or
controlled corporations, are hereby recognized
as legal, valid and binding. When the national
interest so requires, the incumbent President of
the Philippines or the interim Prime Minister may
review all contracts, concessions, permits, or
other forms of privileges for the exploration,
development, exploitation, or utilization of
natural resources entered into, granted, issued
or acquired before the ratification of this
Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942,
L-35948, L-35953, L-35961, L-35965, & L-35979), Chief
Justice Roberto Concepcion, concurred in by Justices
Fernando, Barredo, Antonio and the writer, overruled this
objection, thus:
... Regardless of the wisdom and
moral aspects of the contested
provisions of the proposed
Constitution, it is my considered
view that the Convention was
legally 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 ...; because
the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about
the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite
Cases, cited the foregoing pronouncement in the Del Rosario
case, supra, and added: "... it seems to me a sufficient answer
that once convened, the area open for deliberation to a
constitutional convention ..., is practically limitless" (citing Cf.
Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner,
25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297,
77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga.
313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31
[1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School
District vs. City of Pontiac, 247 NW 474, 262 Mich. 338
[1933]).
Mr. Justice Barredo, in his concurring opinion in said
Plebiscite Cases, expressed the view "that when the people
elected the delegates to the Convention and when the
delegates themselves were campaigning, such limitation of
the scope of their function and objective was not in their
minds."
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?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that
"such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election
at which the amendments are submitted to the people for
ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election called
by Congress at which the amendments are submitted for
ratification by the qualified electors defined in Article V hereof,
supervised by the Commission on Elections in accordance
with the existing election law and after such amendments
shall have been published in all the newspapers of general
circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign
people, who have the sole power of ratification, which
imposition by the Court is never justified (Wheeler vs. Board
of Trustees, supra).
In effect, petitioners and their counsels are amending by a
strained and tortured construction Article XV of the 1935
Constitution. This is a clear case of usurpation of sovereign
power they do not possess — through some kind of
escamotage. This Court should not commit such a grave error
in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular
submission, due to absence of substantial compliance with
the procedure prescribed by the Constitution and/or the law,
nullifies the proposed amendment or the new Constitution, the
procedure prescribed by the state Constitution is so detailed
that it specifies that the submission should be at a general or
special election, or at the election for members of the State
legislature only or of all state officials only or of local officials
only, or of both state and local officials; fixes the date of the
election or plebiscite limits the submission to only electors or
qualified electors; prescribes the publication of the proposed
amendment or a new Constitution for a specific period prior to
the election or plebiscite; and designates the officer to
conduct the plebiscite, to canvass and to certify the results,
including the form of the ballot which should so state the
substance of the proposed amendments to enable the voter to
vote on each amendment separately or authorizes expressly
the Constitutional Convention or the legislature to determine
the procedure or certain details thereof. See the State
Constitutions of Alabama [1901]; Arizona [1912]; Arkansas
[1874]; Colorado [1976]; Connecticut [1818]; Florida [1887];
Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857];
Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland
[1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments
may be proposed to this Constitution by the
legislature in the manner following: The
proposed amendments shall be read in the
house in which they originate on three several
days, and, if upon the third reading, 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 appointed an election shall be
held for the vote of the qualified electors of the
state upon the proposed amendments. If such
election be held on the day of the general
election, the officers of such general election
shall open a poll for the vote of the qualified
electors upon the proposed amendments; if it be
held on a day other than that of a general
election, officers for such election shall be
appointed; and the election shall be held in all
things in accordance with the law governing
general elections. In all elections upon such
proposed amendments, the votes cast thereat
shall be canvassed, tabulated, and returns
thereof be made to the secretary of state, and
counted, in the same manner as in elections for
representatives to the legislature; and if it shall
thereupon appear that a majority of the qualified
electors who voted at such election upon the
proposed amendments voted in favor of the
same, such amendments shall be valid to all
intents and purposes as parts of this
Constitution. The result of such election shall be
made known by proclamation of the governor.
Representation in the legislature shall be based
upon population, and such basis of
representation shall not be changed by
constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon
the ballots used at all elections provided for in
 section 284 of this Constitution, the substance or
subject matter of each proposed amendment
shall be so printed that the nature thereof shall
be clearly indicated. Following each proposed
amendment on the ballot shall be printed the
word "Yes" and immediately under that shall be
printed the word "No". The choice of the elector
shall be indicated by a cross mark made by him
or under his direction, opposite the word
expressing his desire, and no amendment shall
be adopted unless it receives the affirmative
vote of a majority of all the qualified electors who
vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either
branch of the General Assembly at a regular
session thereof may propose amendments to
this Constitution, and, if the same be agreed to
by a majority of all the members, elected to each
house, such proposed amendments shall be
entered on the journal with the yeas and nays,
and published in at least one newspaper in each
county, where a newspaper is published, for six
months immediately preceding the next general
election for Senators and Representatives, at
which time the same shall be submitted to the
electors of the State for approval or rejection,
and if a majority of the electors voting at such
election adopt such amendments, the same
shall become a part of this Constitution; but no
more than three amendments shall be proposed
or submitted at the same time. They shall be so
submitted as to enable the electors to vote on
each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications;
elections. Propositions for the amendment of
this constitution may be made by either branch
of the legislature; and if two thirds of all the
members elected to each house shall concur
therein, such proposed amendments, together
with the yeas and nays, shall be entered on the
journal; and the secretary of state shall cause
the same to be published in at least one
newspaper in each county of the state where a
newspaper is published, for three months
preceding the next election for representatives,
at which time, the same shall be submitted to
the electors, for their approval or rejection; and if
a majority of the electors voting on said
amendments, at said election, shall adopt the
amendments, the same shall become a part of
the constitution. When more than one
amendment shall be submitted at the same time,
they shall be so submitted as to enable the
electors to vote on each amendments
 separately; and not more than three propositions
to amend shall be submitted at the same
election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly;
publication; submission to voters; governor's
proclamation. The General Assembly may
propose Amendments to this Constitution;
provided that each Amendment shall be
embraced in a separate bill, embodying the
Article or Section, as the same will stand when
amended and passed by three fifths of all the
members elected to each of the two Houses, by
yeas and nays, to be entered on the Journals
with the proposed Amendment. The bill or bills
proposing amendment or amendments shall be
published by order of the Governor, in at least
two newspapers, in each County, where so
many may be published, and where not more
than one may be published, then in the
newspaper, and in three newspapers published
in the City of Baltimore, once a week for four
weeks immediately preceding the next ensuing
general election, at which the proposed
amendment or amendments shall be submitted,
in a form to be prescribed by the General
Assembly, to the qualified voters of the State for
adoption or rejection. The votes cast for and
against said proposed amendment or
amendments, severally, shall be returned to the
Governor, in the manner prescribed in other
cases, and if it shall appear to the Governor that
a majority of the votes cast at said election on
said amendment or amendments, severally,
were cast in favor thereof, the Governor shall, by
his proclamation, declare the said amendment
or amendments having received said majority of
votes, to have been adopted by the people of
Maryland as part of the Constitution thereof, and
henceforth said amendment or amendments
shall be part of the said Constitution. When two
or more amendments shall be submitted in the
manner aforesaid, to the voters of this State at
the same election, they shall be so submitted as
that each amendment shall be voted on
separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed
by general assembly or by the initiative. All
amendments proposed by the general assembly
or by the initiative shall be submitted to the
electors for their approval or rejection by official
ballot title as may be provided by law, on a
separate ballot without party designation, at the
next general election, or at a special election
called by the governor prior thereto, at which he
 may submit any of the amendments. No such
proposed amendment shall contain more than
one amended and revised article of this
constitution, or one new article which shall not
contain more than one subject and matters
properly connected therewith. If possible, each
proposed amendment shall be published once a
week for two consecutive weeks in two
newspapers of different political faith in each
county, the last publication to be not more than
thirty nor less than fifteen days next preceding
the election. If there be but one newspaper in
any county, publication of four consecutive
weeks shall be made. If a majority of the votes
cast thereon is in favor of any amendment, the
same shall take effect at the end of thirty days
after the election. More than one amendment at
the same election shall be so submitted as to
enable the electors to vote on each amendment
separately.
Article XV of the 1935 Constitution does not require a specific
procedure, much less a detailed procedure for submission or
ratification. As heretofore stated, it does not specify what kind
of election at which the new Constitution shall be submitted;
nor does it designate the Commission on Elections to
supervise the plebiscite. Neither does it limit the ratification to
the qualified electors as defined in Article V of the 1935
Constitution. Much less does it require the publication of the
proposed Constitution for any specific period before the
plebiscite nor does it even insinuate that the plebiscite should
be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure
for submission of the proposed Constitution to the people for
ratification. It does not make any reference to the Commission
on Elections as the body that shall supervise the plebiscite.
And Article XV could not make any reference to the
Commission on Elections because the original 1935
Constitution as ratified on May 14, 1935 by the people did not
contain Article X on the Commission on Elections, which
article was included therein pursuant to an amendment by that
National Assembly proposed only about five (5) years later —
on April 11, 1940, ratified by the people on June 18, 1940 as
approved by the President of the United States on December
1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715;
Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be
said that the original framers of the 1935 Constitution as
ratified May 14, 1935 intended that a body known as the
Commission on Elections should be the one to supervise the
plebiscite, because the Commission on Elections was not in
existence then as was created only by Commonwealth Act
No. 607 approved on August 22, 1940 and amended by
Commonwealth Act No. 657 approved on June 21, 1941 (see
Tañada & Carreon, Political Law of the Philippines, Vol. I,
1961 ed., pp. 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 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.
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.
The very phraseology of the specific laws enacted by the
National Assembly and later by Congress, indicates that there
is need of a statute expressly authorizing the application of
the election laws to plebiscites of this nature. Thus, Com. Act
No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from
providing that "there shall be held a plebiscite on Friday, April
30, 1937, on the question of woman's suffrage ... and that said
amendment shall be published in the Official Gazette in
English and Spanish for three consecutive issues at least
fifteen (15) days prior to said election, ... and shall be posted
in a conspicuous place in its municipal and provincial office
building and in its polling place not later than April 22, 1937"
(Sec. 12, Com. Act No. 34), specifies that the provisions of the
Election Law regarding, the holding of a special election,
insofar as said provisions are not in conflict with it, should
apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and,
that the votes cast according to the returns of the board of
inspectors shall be counted by the National Assembly (Sec.
10, Com. Act No. 34).
The election laws then in force before 1938 were found in
Sections 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 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 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.
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 in
Section 6 of this Act;
c. To act on budgetary and
supplemental appropriations and
special tax ordinances submitted
for its approval by the barrio
council; and
d. To hear the annual report
council concerning the activities
and finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in
the barrio when authorized by a majority vote of
the members present in the barrio assembly,
there being a quorum, or when called by at least
four members of the barrio council; Provided,
however, That no plebiscite shall be held until
after thirty days from its approval by either body,
and such plebiscite has been given the widest
publicity in the barrio, stating the date, time, and
place thereof, the questions or issues to be
decided, action to be taken by the voters, and
such other information relevant to the holding of
the plebiscite.
All duly registered barrio assembly members
qualified to vote may vote in the plebiscite.
Voting procedures may be made either in writing
as in regular election, and/or declaration by the
voters to the board of election tellers. The board
of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act,
in case of vacancies in this body, the barrio
council may fill the same.
A plebiscite may be called to decide on the
recall of any member of the barrio council. A
plebiscite shall be called to approve any
budgetary, supplemental appropriations or
special tax ordinances.
For taking action on any of the above
enumerated measures, majority vote of all the
barrio assembly members registered in the list
of barrio secretary is necessary.
xxx xxx xxx
 Sec 10. Qualifications of voters and candidates.
— Every citizen of the Philippines, 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
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 ... 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 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
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 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 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 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.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section,
Department of Local Government and Community
Development, issued a certificate dated March 16, 1973 that
she was shown xerox copies of unsigned letters allegedly
coming from Governor Lino Bocalan dated January 15, 1973
and marked "Rejoinder Annex Cavite" addressed to the
President of the Philippines through the Secretary of the
Department of Local Government and Community
Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked
"Rejoinder Annex Pasay City" addressed to the Secretary of
the Department of Local Government and Community
Development; that both xerox copies of the unsigned letters
contain figures showing the results of the referendum of the
Citizens' Assemblies in those areas; and that the said letters
were not received by her office and that her records do not
show any such documents received by her office (Annex 2-
Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in 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 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
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
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) 1 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.
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
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 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 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
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 ... . (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
undermartial law, the President as Commander-in-Chief is
vested with legislative powers, is sustained by the ruling in the
1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-
178) which reiterates the 1945 case of Yamashita vs.
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was
after the surrender of Japan on October 2, 1945 (23 Encyc.
Brit. 1969 ed., p. 799) and hence no more martial law in the
Philippines.
... Consequently, in the promulgation and
enforcement of Executive Order No. 68, the
President of the Philippines has acted in
conformity with the generally accepted principles
and policies of international law which are part of
our Constitution.
The promulgation of said executive order is an
exercise by the President of his powers as
Commander in Chief of all our armed forces, as
upheld by this Court in the case of Yamashita
vs. 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; emphasis supplied).
Chief Justice Stone of the United States Supreme Court
likewise appears to subscribe to this view, when, in his
concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304
[1946]), he defined martial law as "the exercise of the power
which resides in the executive branch of the government to
preserve order and insure the public safety in times of
emergency, when other branches of the government are
unable to function, or their functioning would itself threaten
the public safety." (Emphasis supplied). There is an implied
recognition in the aforesaid definition of martial law that even
in places where the courts can function, such operation of the
courts may be affected by martial law should their
"functioning ... threaten the public safety." It is possible that
the courts, in asserting their authority to pass upon questions
which may adversely affect the conduct of the punitive
campaign against rebels, secessionists, dissidents as well as
subversives, martial law may restrict such judicial function
until the danger to the security of the state and of the people
shall have been decimated.
The foregoing view appears to be shared by Rossiter when he
stated:
Finally, this strong government, which in some
instances might become an outright dictatorship,
can have no other purposes than the
preservation of the independence of the state,
the maintenance of the existing constitutional
order, and the defense of the political and social
liberties of the people. It is important to
recognize the true and limited ends of any
practical application of the principle of
constitutional dictatorship. Perhaps the matter
may be most clearly stated in this way: the
government of a free state is proceeding on its
way and meeting the usual problems of peace
and normal times within the limiting framework
of its established constitutional order. The
functions of government are parceled out among
a number of mutually independent offices and
institutions; the power to exercise those
functions is circumscribed by 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 arbitrarily and even
dictatorially in the swift adaption of measures
designed to save the state and its people from
the destructive effects of the particular crisis.
And the narrow duty to be pursued by this strong
government, this constitutional dictatorship?
Simply this and nothing more: to end the crisis
and restore normal times. The government
assumes no power and abridges no right unless
plainly indispensable to that end; it extends no
 further in time than the attainment of that end;
and it makes no alteration in the political, social
and economic structure of the nation which
cannot be eradicated with the restoration of
normal times. In short, the aim of constitutional
dictatorship is the complete restoration of
the status quo ante bellum. This historical fact
does not comport with philosophical theory, that
there never has been a perfect constitutional
dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of
all institutions of government, and the principle
of constitutional dictatorship remains eternally
valid no matter how often and seriously it may
have been violated in practice. (Constitutional
Dictatorship, 1948 ed., by Clinton L. Rossiter, p.
7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law,
the Chief Executive exercises legislative power, whether of
temporary or permanent character, thus:
The measures adopted in the prosecution of a
constitutional dictatorship should never be
permanent in character or effect. Emergency
powers are strictly conditioned by their purpose
and this purpose is the restoration of normal
conditions. The actions directed to this end
should therefore be provisional. For
example, measures of a legislative nature which
work a lasting change in the structure of the
state or constitute permanent derogations from
existing law should not be adopted under an
emergency enabling act, at least not without the
positively registered approval of the legislature.
Permanent laws, whether adopted in regular or
irregular times, are for parliaments to enact. By
this same token, the decisions and sentences of
extraordinary courts should be reviewed by the
regular courts after the termination of the crisis.
But what if a radical act of permanent character,
one working lasting changes in the political and
social fabric, is indispensable to the successful
prosecution of the particular constitutional
dictatorship? The only answer can be: it must be
resolutely taken and openly acknowledged.
President Lincoln found it necessary to proceed
to the revolutionary step of emancipation in aid
of his conservative purpose of preserving the
Union; as a constitutional dictator he had a
moral right to take this radical
action. Nevertheless, it is imperative that any
action with such lasting effects should
eventually receive the positive approval of the
people or of their representatives in the
legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by
severe crisis generated by revolution, insurrection or
economic depression or dislocation, the government
exercises more powers and respects fewer rights in order "to
end the crisis and restore normal times." The government can
assume additional powers indispensable to the attainment of
that end — the complete restoration of peace. In our particular
case, eradication of the causes that incited rebellion and
subversion as secession, is the sine qua non to the complete
restoration of normalcy. Exercise of legislative power by the
President as Commander in Chief, upon his proclamation of
martial law, is justified because, as he professes, it is directed
towards the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or subversive
conspiracies and the consequent dismantling of the rebellious,
insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 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 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; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight
jacket. It is a living organism. As such, it is capable of
growth — or expansion and adaptation to new conditions.
Growth implies changes, political, economic and social."
(Brandeis Papers, Harvard Law School; emphasis supplied).
Harvard Professor Thomas Reed Powell emphasizes
"practical wisdom," for "the logic of constitutional law is the
common sense of the Supreme Court." (Powell, the Validity of
State Legislation, under the Webb-Kenyon Law, 2 Southern
Law Quarterly, pp. 112, 138-139, cited in Bickel's
Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible
men is that nothing is permanent except change. Living
organisms as well as 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
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.
... But I know also, that laws and institutions must go hand in
hand with the progress of the human mind. As that becomes
more developed, more enlightened, as new discoveries are
made, new truths disclosed and manners and opinions
change, with the change of circumstances, institutions must
also advance, and keep pace with the times." (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be
judged in the perspective of history. It cannot be adequately
and fairly appraised within the present ambience, charged as
it is with so much tension and emotion, if not partisan passion.
The analytical, objective historians will write the final verdict in
the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ
of habeas corpus without any constitutional or statutory
authority therefor and of President Franklin Delano Roosevelt
who approved the proclamation of martial law in 1941 by the
governor of Hawaii throughout the Hawaiian territory.
President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United
States from disintegration by his suspension of the privilege of
the writ of habeas corpus, which power the American
Constitution and Congress did not then expressly vest in him.
No one can deny that the successful defense and
preservation of the territorial integrity of the United States was
due in part, if not to a great extent, to the proclamation of
martial law over the territory of Hawaii — main bastion of the
outer periphery or the outpost of the American defense
perimeter in the Pacific — which protected the United States
mainland not only from actual invasion but also from aerial or
naval bombardment by the enemy. Parenthetically, the
impartial observer cannot accurately conclude that the
American Supreme Court acted with courage in its decision in
the cases of Ex parte Milligan and Duncan vs.
Kahanamoku (filed on May 10, 1865 argued on March 5 to 13,
1866, decided on April 3, 1866, and opinion delivered on
December 17, 1866) after the lifting of the proclamation
suspending the privilege of the writ of habeas corpus, long
after the Civil War and the Second World ended respectively
on April 9 or 26, 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 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 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.
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.
X ordinary rights of individuals must yield to what he (the
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
President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for
judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25
L ed. 327, 328). This was admitted with regard to killing men
in the actual clash of arms. And we think it is obvious,
although it was disputed, that the same is true of temporary
detention to prevent apprehended harm." (Moyer vs.
Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the
rhetoric of freedom with order and security for all, that should
be the shibboleth; for freedom cannot be enjoyed in an
environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the
support for his reform program long before September 21,
1972, realized almost too late that he was being deceived by
his partymates as well as by the opposition, who promised
him cooperation, which promises were either offered as a
bargaining leverage to secure concessions from him or to
delay the institution of the needed reforms. The people have
been victimized by such bargaining and dilly-dallying. To vert
a terrifying blood bath and the breakdown of the Republic, the
incumbent President proclaimed martial law to save the
Republic from being overrun by communists, secessionists
and rebels by effecting the desired reforms in order to
eradicate the evils that plague our society, which evils have
been employed by the communists, the rebels and
secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the
Republic will be decimated. How many of the petitioners and
their counsels have been utilizing the rebels, secessionists
and communists for their own personal or political purposes
and how many of them are being used in turn by the aforesaid
enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for
the greater mass of the populace, more than for their own
selves, they should be willing to give the incumbent Chief
Executive a chance to implement the desired reforms. The
incumbent President assured the nation that he will govern
within the framework of the Constitution and if at any time,
before normalcy is restored, the people thru their Citizens'
Assemblies, cease to believe in his leadership, he will step
down voluntarily from the Presidency. But if, as apprehended
by the petitioners, he abuses and brutalizes the people, then
to the battlements we must go to man the ramparts against
tyranny. This, it is believed, he knows only too well; because
he is aware that he who rides the tiger will eventually end
inside the tiger's stomach. He who toys with revolution will be
swallowed by that same revolution. History is replete with
examples of libertarians who turned tyrants and were burned
at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The
most bloody of such mass executions by the wrath of a
wronged people, was the decapitation by guillotine of about
15,000 Frenchmen including the leaders of the French
revolution, like Robespierre, Danton, Desmoulins and Marat.
He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS
JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents
Executive Officers from implementing the Constitution signed
on November 30, 1972; in 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
referendum conducted in connection therewith, as said
assemblies were merely for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution
prescribing the manner of amending the same were not duly
observed.
The petitions were not given due course immediately but were
referred to the Solicitor General as counsel for the
respondents for comment, with three members of the Court,
including the undersigned, voting to dismiss them outright.
The comments were considered motions to dismiss which
were set for hearing and extensively argued. Thereafter both
parties submitted their notes and memoranda on their oral
arguments.
I.
The issues raised for determination, on which the resolution of
the Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the
competence of this Court to decide, or is it justiciable and fit
for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in
accordance with the amending process prescribed by Article
XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in
by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the
affirmative, are petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue
raised is highly political and, therefore, not justiciable. I
maintain that this Court should abstain from assuming
jurisdiction, but, instead, as an act of judicial statesmanship,
should dismiss the petitions. In resolving whether or not the
question presented is political, joint discussion of issues Nos.
1, 3 and 4 is necessary so as to arrive at a logical conclusion.
For after the acceptance of a new Constitution and
acquiescence therein by the people by putting it into practical
operation, any question regarding its validity should be
foreclosed and all debates on whether it was duly or lawfully
ushered into existence as the organic law of the state become
political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation
No. 1102 and Presidential Decrees Nos. 86 and 86-A are fully
set forth in the majority and dissenting opinions in the
Plebiscite cases decided on January 22, 1973, and need not
be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 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
resistance capable of jeopardizing its existence and disrupting
its operation. Ultimately the issue is whether the new
Constitution may be set aside by this Court. But has it the
power and authority to assume such a stupendous task when
the result of such invalidation would be to subject this nation
to divisive controversies that may totally destroy the social
order which the Government under the new Constitution has
been admirably protecting and promoting under Martial Law?
That the new Constitution has taken deep root and the people
are happy and contended with it is a living reality which the
most articulate critics of the new order cannot deny. 95 out of
108 members of the House of Representatives have opted to
serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise.
The members of the Congress did not meet anymore last
January 22, 1973, not because they were really prevented
from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the
Legislative Department under the 1935 Constitution is a thing
of the past. The Executive Department has been fully
reorganized; the appointments of key executive officers
including those of the Armed Forces were extended and they
took an oath to support and defend the new Constitution. The
courts, except the Supreme Court by reason of these cases,
have administered justice under the new constitution. All
government offices have dealt with the public and performed
their functions according to the new Constitution and laws
promulgated thereunder.
If the real purpose of the petitions is to set aside the new
Constitution, how can this Court justify its assumption of
jurisdiction when no power has ... conferred upon it the
jurisdiction to declare the Constitution or any part thereof null
and void? It is the height of absurdity and impudence for a
court to wage open war against the organic act to which it
owes its existence. The situation in which this Court finds itself
does not permit it to pass upon the question whether or not
the new Constitution has entered into force and has
superseded the 1935 Constitution. If it declares that the
present Constitution has not been validly ratified, it has to
uphold the 1935 Constitution as still the prevailing organic
law. The result would be too anomalous to describe, for then
this Court would have to declare that it is governed by one
Constitution or the 1935 Constitution, and the legislative and
executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how
can it exercise judicial discretion in these cases when it would
have no other choice but to uphold the new Constitution as
against any other one? In the circumstances it would be bereft
of judicial attributes as the matter would then be not meet for
judicial determination, but one addressed to the sovereign
power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that
the new Constitution has been accepted and actually is in
operation would be flying in the face of reason and pounding
one's bare head against a veritable stone wall or a heavily
reinforced concrete, or simply "kicking the deadly pricks" with
one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime,
even without popular ratification at that, submission of the
people thereto by the organization of the government provided
therein and observance of its prescriptions by public officers
chosen thereunder, is indicative of approval. Courts should be
slow in nullifying a Constitution claimed to have been adopted
not in accordance with constitutional or statutory directives
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good,
34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has
been formed and promulgated according to the
forms of law. Great interests have already arisen
under it; important rights exist by virtue of it;
persons have been convicted of the highest
crimes known to the law, according to its
provisions; the political power of the government
has in many ways recognized it; and, under
such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the
organic law of our state. We need not consider
the validity of the amendments made after the
convention reassembled. If the making of them
was in excess of its power, yet as the entire
instrument has been recognized as valid in the
manner suggested, it would be equally an abuse
of power by the judiciary, and violative of the
rights of the people, — who can and properly
should remedy the matter, if not to their liking,
— if it were to declare the instrument or a
portion invalid, and bring confusion and anarchy
upon the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from
entering upon such an inquiry when applied to a
new constitution, and not an amendment,
because the judicial power presupposes an
established government, and if the authority of
 that government is annulled and overthrown, the
power of its courts is annulled with it; therefore,
if a state court should enter upon such an
inquiry, come to the conclusion that the
government under which it acted had been
displaced by an opposing government, it would
cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the
question before it; but, if it decides at all, it must
necessarily affirm the existence of the
government under which it exercises its judicial
powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7
How.), 12 L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established
government capable of enacting laws and
enforcing their execution, and appointing judges
to expound and administer them. The
acceptance of the judicial office is a recognition
of the authority of government from which it is
derived. And if the authority of the government is
annulled and overthrown, the power of its courts
and other officers is annulled with it. And if a
State court should enter upon the inquiry
proposed in this case, and should come to
conclusion that the government under which it
acted had been put aside and displaced by an
opposing government it would cease to be a
court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If
it decides at all as a court, it necessarily affirms
the existence and authority of the government
under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have
been normally conducted on the basis of the new Constitution
and no state with which we maintain diplomatic relations has
withdrawn its recognition of our government. (For particulars
about executive acts done under the new Constitution, see
pages 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)
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, 19731, I held the view that this issue could be properly
resolved by this Court, and that it was in the public interest
that this Court should declare then whether or not the
proposed Constitution had been validly ratified. The majority
of this Court, however, was of the view that the issue was not
squarely raised in those cases, and so the Court, as a body,
did make any categorical pronouncement on the question of
whether or not the Constitution proposed by the 1971
Convention was validly ratified. I was the only one who
expressed the opinion that the proposed Constitution was not
validly ratified and therefore "it should not be given force and
effect."
The Court is now called upon to declare, and to inform the
people of this country, whether or not that proposed
Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has
no jurisdiction to resolve the issue that we have mentioned
because that issue is a political question that cannot be
decided by this Court. This contention by the Solicitor General
is untenable. A political question relates to "those questions
which under the Constitution are to be decided by the people
in their sovereign capacity or in regard to which full
discretionary authority has been delegated to the legislative,
or to the executive, branch of the government. 2 The courts
have the power to determine whether the acts of the executive
are authorized by the Constitution and the laws whenever
they are brought before the court in a judicial proceeding. The
judicial department of the government exercises a sort of
controlling, or rather restraining, power over the two other
departments of the government. Each of the three
departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one
department when that sphere is actually transcended. While a
court may not restrain the executive from committing an
unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void,
the same as it may declare a law enacted by the legislature to
be unconstitutional.3 It is a settled doctrine that every officer
under a constitutional government must act according to law
and subject to its restrictions, and every departure therefrom,
or disregard thereof, must subject him to the restraining and
controlling power of the people, acting through the agency of
the judiciary. It must be remembered that the people act
through the courts, as well as through the executive or the
legislature. One department is just as representative as the
other, and judiciary is the department which is charged with
the special duty of determining the limitations which the law
places upon all official actions4 . In the case of Gonzales v.
Commission on Elections5, this Court ruled that the issue as to
whether or not a resolution of Congress acting as a
constituent assembly violates the Constitution is not a political
question and is therefore subject to judicial review. In the case
of Avelino v. Cuenco6, this Court held that the exception to the
rule that courts will not interfere with a political question
affecting another department is when such political question
involves an issue as to the construction and interpretation of
the provision of the constitution. And so, it has been held that
the question of whether a constitution shall be amended or not
is a political question which is not in the power of the court to
decide, but whether or not the constitution has been legally
amended is a justiciable question.7
My study on the subject of whether a question before the
court is political or judicial, based on decisions of the courts in
the United States — where, after all, our constitutional system
has been patterned to a large extent — made me arrive at the
considered view that it is in the power of this Court, as the
ultimate interpreter of the Constitution, to determine the
validity of the proposal, the submission, and the ratification of
any change in the Constitution. Ratification or 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 requirements
prescribed in the Constitution that was amended. And so, in
the cases now before Us, I believe that the question of
whether or not the Constitution proposed by the 1971
Constitutional Convention had been validly ratified or not is a
justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the
subject on whether or not, the cases, before Us involve a
political, or a judicial, question. I fully concur with his
conclusion that the question involved in these cases is
justiciable.
On the question now of whether or not the Constitution
proposed by the 1971 Constitutional Convention has been
validly ratified, I am reproducing herein pertinent portions of
my dissenting opinion in the plebiscite cases:
The ratification of the Constitution proposed by
the 1971 Constitutional Convention must be
done in accordance with the provisions of
Section 1, Article XV of the 1935 Constitution of
the Philippines, which reads:
"Section 1. The Congress in joint
session assembled by a vote of
three fourths of all the Members of
the Senate and of the House of
Representatives voting separately,
may propose amendments to the
Constitution or call a convention
for that purpose. Such
amendments shall be valid as part
of this Constitution when approved
by a majority of the votes cast at
an election at which the
amendments are submitted to the
people for their ratification."
It is in consonance with the abovequoted
provision of the 1935 Constitution that on March
16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose
amendments to the Constitution of the
Philippines. Sec. 7 of said Resolution No. 2
reads as follows:
"Section 7. The amendments
proposed by the Convention shall
be valid and considered part of the
Constitution when approved by a
majority of the votes cast in an
election at which they are
submitted to the people for their
ratification pursuant to Article XV
of the Constitution.
It follows that from the very resolution of the
Congress of the Philippines which called for the
1971 Constitutional Convention, there was a
clear mandate that the amendments proposed
by the 1971 Convention, in order to be valid and
considered part of the Constitution, must be
approved by majority of the votes cast in an
election at which they are submitted to the
people for the ratification as provided in the
Constitution.
This Court, in the case of Tolentino vs.
Commission Elections, 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          x x x
"As to matters not related to its
internal operation and the
performance of its assigned
mission to propose amendments to
the Constitution, the Convention
and its officers and members
are all subject to all the provisions
of the existing Constitution. Now
we hold that even as to its
latter task of proposing
amendments to the Constitution, it
is subject to the provisions of
Section 1 of Article XV."
In Proclamation No. 1102, issued on January
17, 1973, the President of the Philippines
certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561
members of the barangays voted for the
adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and
on the basis of the overwhelming majority of the
votes cast by the members of all the barangays
throughout the Philippines, the President
proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has
thereby come into effect.
It is very plain from the very wordings of
Proclamation No. 1102 that the provisions of
Section 1 of Article XV of the Constitution of
1935 were not complied with. It is not necessary
that evidence be produced before this Court to
show that no elections were held in accordance
with the provisions of the Election Code.
Proclamation No. 1102 unequivocally states that
the proposed Constitution of 1972 was voted
upon by the barangays. It is very clear,
therefore, that the voting held in these
barangays is not the election contemplated in
the provisions of Section 1, Article XV, of the
1935 Constitution. The election contemplated in
said constitutional provision is an election held in
accordance with the provisions of the election
law, where only the qualified and registered
voters of the country would cast their votes,
where official ballots prepared for the purpose
are used, where the voters would prepare their
ballots in secret inside the voting booths in the
polling places established in the different
election precincts throughout the country, where
the election is conducted by election inspectors
duly appointed in accordance with the election
law, where the votes are canvassed and
reported in a manner provided for in the election
law. It was this kind of election that was held on
May 14, 1935, when the Constitution of 1935
was ratified; on April 30, 1937, when the
amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18,
1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947
when the Parity Amendment to the Constitution
was ratified; and on November 14, 1967 when
the amendments to the Constitution to increase
the number of Members of the House of
Representatives and to allow the Members of
Congress to run in the elections for Delegates to
the Constitutional Convention of 1971 were
rejected.
I cannot see any valid reason why the practice
or procedure in the past, in implementing the
constitutional provision requiring the holding, of
an election to ratify or reject an amendment to
the Constitution, has not been followed in the
case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines
cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the
barangays and make said result the basis for
proclaiming the ratification of the proposed
constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete
disregard or in violation, of the provisions of
Section 1 of Article X of the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore,
that on the question as to whether or not the
people would still like a plebiscite to be called to
ratify the new Constitution, 14,298,814 members
of the barangays answered that there was no
need for a plebiscite but that the vote of the
barangays should be considered a vote in a
plebiscite. It would thus appear that the
barangays assumed the power to determine
whether a plebiscite as ordained in the
Constitution be held or not. Indeed, the provision
of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are
not the votes contemplated in Section 1 of
Article XV of the 1935 Constitution. The votes
contemplated in said constitutional provision are
votes obtained through the election processes
as provided by law.
"An election is the embodiment of
the popular will, the expression of
the sovereign power of the people.
In common parlance, an election is
the act of casting and receiving the
ballots, counting them, and making
the return." (Hontiveros vs.
Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an
electoral body at the time and
substantially in the manner and
with the safeguards provided by
law with respect to some question
or issue. (Leffel v. Brown, Com.
P1., 159 N.E. 2d 807, 808 cited in
29 C.J.S. 13 at footnote 6.5).
"... the statutory method
whereby qualified voters or
electors pass on various public
matters submitted to them — the
election of officers, national, state,
county, township — the passing on
various other questions submitted
for their determination." (29 C.J.S.
13, citing 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 Phrases,
Permanent Edition, p. 234).
"The right to vote may be
exercised only on compliance with
such statutory requirements as
have been set by the legislature."
(People ex rel. Rago v. Lipsky, 63
N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d
 612, 11 Utah 2d 169 in 29 C.J.S.
38). (Emphasis supplied).
In this connection I herein quote the pertinent
provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections
of public officers except barrio officials and
plebiscites shall be conducted in the manner
provided by this Code."
"Sec 99. Necessity of registration to be entitled
to vote. — In order that a qualified voter may
vote in any regular or special election or in any
plebiscite, he must be registered in the
permanent list of voters for the city, municipality
or municipal district in which he resides:
Provided, that no person shall register more
than once without first applying for cancellation
of his previous registration." (Emphasis
supplied). (Please see also Sections 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 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." (BIack'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 far as they were
disposed to allow them to be
exercised at all. By the constitution
which they establish, they not only
tie up the hands of their official
agencies, but their own hands as
well; and neither the officers of the
State, nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
fundamental law." (Cooley's
Constitutional Limitations, 8th
Edition, Vol. I, p. 81 cited in
Graham v. Jones, 3 So. 2d. 761,
782).
"The theory that a favorable vote
by the electorate, however
unanimous, on a proposal to
amend a constitution, may cure,
render innocuous, all or any
antecedent failures to observe
commands of that Constitution in
respect of the formulation or
submission of proposed
amendments thereto, does not
prevail in Alabama, where the
doctrine of the stated theory was
denied, in obvious effect, by the
pronouncement 60 years ago of
broad, wholesome constitutional
principles in Collier v.
Frierson, supra, as quoted in the
original opinion, ante. The people
themselves are bound by the
Constitution; and, being so bound,
are powerless, whatever their
numbers, to change or thwart its
mandates, except through the
peaceful means of a constitutional
convention, or of an amendment
according to the mode therein
prescribed, or through the exertion
of the original right of revolution.
"The Constitution may be set aside
by revolution, but it can only be
amended in the way it provides,"
said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W.
99, 103. (Johnson vs. Craft, et al.,
87 So. 375, 385, 387, On
Rehearing).
"The fact that a majority voted for
the amendment, unless the vote
was taken as provided by the
Constitution, is not sufficient to
make a change in that instrument.
Whether a proposed amendment
has been legally adopted is a
judicial question, for the court must
uphold and enforce the
Constitution as written until it is
amended in the way which it
provides for." Wood v. Tooker, 15
Mont. 8, 37 Pac 840, 25 L.R.A.
560; McConaughty v. State, 106
Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal.
499, 11 Pac. 3; Utter v. Mosely, 16
Idaho 274, 100 Pac. 1958, 133
Am. St. Rep. 94, 18 Ann. Cas.
723. (McCreary v. Speer, 162 S.W.
99, 104).
"Provisions of a constitution
regulating its own amendment, ...
are not merely directory, but are
mandatory; and a strict
observance of every substantial
mandatory; and a strict
observance of every substantial
requirement is essential to the
validity of the proposed
amendment. These provisions are
as binding on the people as on the
legislature, and the former are
powerless by vote of acceptance
to give legal sanction to an
amendment the submission of
which was made in disregard of
the limitations contained in the
constitution." (16 C.J.S. 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 with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest
against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots
during the proceedings in the trial court, it
appeared that Monsale had obtained 2,877
votes while Nico obtained 2,276 votes, or a
margin of 601 votes in favor of Monsale. The
Court of First Instance of Iloilo decided the
election protest in favor of Monsale. Upon
appeal by Nico, this Court reversed the decision
of the lower court. This Court declared that
because Monsale withdrew his certificate of
candidacy, his attempt to revive it by
withdrawing his withdrawal of his certificate of
candidacy did not restore the effectiveness of
his certificate of candidacy, and this Court
declared Nico the winner in spite of the fact that
Monsale had obtained more votes than he.
We have cited this Monsale case to show that
the will of the majority of the voters would not be
given effect, as declared by this Court, if certain
legal requirements have not been complied with
in order to render the votes valid and effective to
decide the result of an election.
And so, in the cases now before this Court, the
fact that the voting in the citizens assemblies
(barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of
the amendment to the Constitution, the
affirmative votes cast in those assemblies can
not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in
spite of the fact that it was reported that
14,976,561 members of the citizens assemblies
voted for the adoption as against 743,869 for the
rejection, because the votes thus obtained were
not in accordance with the provisions of Section
1 of Article XV of the 1935 Constitution of the
Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds
against the holding of the plebiscite on January
15, 1973, as provided in Presidential Decree No.
 73, is that there is no freedom on the part of the
people to exercise their right of choice because
of the existence of martial law in our country.
The same ground holds true as regards to the
voting of the barangays on January 10 to 15,
1973. More so, because by General Order No.
20, issued on January 7, 1973, the President of
the Philippines ordered "that the provisions of
Section 3 of Presidential Decree No. 73 in so far
as they allow free public discussion of the
proposed constitution, as well as my order of
December 17, 1972 temporarily suspending the
effects of Proclamation No. 1081 for the purpose
of free and open debate on the proposed
constitution, be suspended in the meantime." It
is, therefore, my view that voting in the
barangays on January 10, 1973 was not free,
and so this is one added reason why the results
of the voting in the barangays should not be
made the basis for proclamation of the
ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No.
1102 repugnant to the 1935 Constitution, and so
it is invalid, and should not be given effect. The
Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered
as not yet ratified by the people of this Republic,
and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in
the citizens assemblies was a substantial compliance with the
provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of
Article XV of the 1935 Constitution is that "to be valid,
amendments must gain the approval of the majority
recognition of the democratic postulate that sovereign resides
in the people." It is not disputed that in a democratic
sovereignty resides in the people. But the term "people" must
be understood in its constitutional meaning, and they are
"those persons who are permitted by the Constitution to
exercise the elective franchise."8 Thus, in Section 2 of Article
VII of the 1935 Constitution, it is provided that "the President
shall hold his office during a term of four years and, together
with the 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. Crescini9, this Court, speaking through Mr.
Justice Johnson, said, "In democracies, the people,
combined, represent the sovereign power of the State. Their
sovereign authority is expressed through the ballot, of the
qualified voters, in duly appointed elections held from time to
time, by means of which they choose their officials for definite
fixed periods, and to whom they entrust, for the time being, as
their representatives, the exercise of the powers of
government." In the case of Moya v. Del Fierro, 10 this Court,
speaking through Mr. Justice Laurel, said, "As long as popular
government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies
wrought by the people through their Constitution in the interest
of good government and the common weal. Republicanism, in
so far as it implies the adoption of a representative type of
government, necessarily points to the enfranchised citizen as
a particle of popular sovereignty and as the ultimate source of
the established authority." And in the case of Abanil v. Justice
of the Peace of Bacolod, 11 this Court said: "In the scheme of
our present republican government, the people are allowed to
have a voice therein through the instrumentality of suffrage to
be availed of by those possessing certain prescribed
qualifications. The people, in clothing a citizen with the
elective franchise for the purpose of securing a consistent and
perpetual administration of the government they ordain,
charge him with the performance of a duty in the nature of a
public trust, and in that respect constitute him a
representative of the whole people. This duty requires that the
privilege thus bestowed exclusively for the benefit of the
citizen or class of citizens professing it, but in good faith and
with an intelligent zeal for the general benefit and welfare of
the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no
question, therefore, that when we talk of sovereign people,
what is meant are the people who act through the duly
qualified and registered voters who vote during an election
that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the
1935 Constitution should be construed along with the term
"election" as used in the Provisions of Section 4 of the
Philippine Independence Act of the Congress of the United
States, popularly known as the 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.
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 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
affirmative votes in the citizens assemblies as a true and
correct expression by the people of their approval, or
acceptance, of the proposed Constitution. I have my serious
doubts regarding the freedom of the people to express their
views regarding the proposed Constitution during the voting in
the citizens assemblies, and I have also my serious doubts
regarding the truthfulness and accuracy of the reports of the
voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study
of the records of these cases, particularly with respect to the
reports of the voting in the citizens assemblies. Perhaps, it
may be said that the people, or the inhabitants of this country,
have acquiesced to the new Constitution, in the sense that
they have continued to live peacefully and orderly under the
government that has been existing since January 17, 1973
when it was proclaimed that the new Constitution came into
effect. But what could the people do? In the same way that
the people have lived under martial law since September 23,
1972, they also have to live under the government as it now
exists, and as it has existed since the declaration of martial
law on September 21, 1972, regardless of what Constitution is
operative — whether it is the 1935 Constitution or the new
Constitution. Indeed, there is nothing that the people can do
under the circumstances actually prevailing in our country
today — circumstances, known to all, and which I do not
consider necessary to state in this opinion. I cannot agree,
therefore, with my worthy colleagues in the Court who hold
the view that the people have accepted the new Constitution,
and that because the people have accepted it, the new
Constitution should be considered as in force, regardless of
the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the
1971 Constitutional Convention has not come into effect. I do
not say, however, that the proposed Constitution is invalid. To
me, the validity of the proposed Constitution is not in issue in
the cases before Us. What the petitioners assail is not the
validity of the proposed Constitution but the validity of
Presidential Proclamation No. 1102 which declares the
proposed Constitution as having been ratified and has come
into effect. It being my considered view that the ratification of
the proposed Constitution, as proclaimed in Proclamation No.
1102, is not in accordance with the provisions of Section 1 of
Article XV, of the 1935 Constitution, I hold that Proclamation
No. 1102 is invalid and should not be given force and effect.
Their proposed Constitution, therefore, should be considered
as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in
conformity with Section 1 of Article XV of the 1935
Constitution. Incidentally, I must state that the Constitution is
still in force, and this Court is still functioning under the 1935
Constitution.
I sincerely believe that the proposed Constitution may still be
submitted to the people in an election or plebiscite held in
accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution. In fact, as we have adverted to in this
opinion, this was the mandate of Congress when, on March
16, 1967, it passed Resolution No. 2 calling a convention to
propose amendments to the 1935 Constitution. The Court
may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of
our Republic since the declaration of martial law is not a
revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution.
The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional
government. It being my view that the 1935 Constitution is still
in force, I believe Congress may still convene and pass a law
calling for an election at which the Constitution proposed by
the 1971 Constitutional Convention will be submitted to the
people their ratification or rejection. A plebiscite called
pursuant to Section 1 of Article XV of the 1935 Constitution is
an assurance to our people that we still have in our country
the Rule of Law and that the democratic system of
government that has been implanted in our country by the
Americans, and which has become part of our social and
political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by
a desire on my part to bring about stability in democratic and
constitutional system in our country. I feel that if this Court
would give its imprimatur to the ratification of the proposed
Constitution, as announced in Proclamation No. 1102, it being
very clear that the provisions of Section 1 of Article XV of the
1935 Constitution had not been complied with, We will be
opening the gates for a similar disregard of the Constitution in
the future. What I mean is that if this Court now declares that
a new Constitution is now in force because the members of
the citizens assemblies had approved the said new
Constitution, although that approval was not in accordance
with the procedure and the requirements prescribed in the
1935 Constitution, it can happen again in some future time
that some amendments to the Constitution may be adopted,
even in a manner contrary to the existing Constitution and the
law, and then said proposed amendment is submitted to the
people in any manner and what will matter is that a basis is
claimed that there was approval by the people. There will not
be stability in our constitutional system, and necessarily no
stability in our government. As a member of this Court I only
wish to contribute my humble efforts to prevent the happening
of such a situation in the future.
It appearing to me that the announced ratification of the
proposed Constitution through the voting in the citizens
assemblies is a clear violation of the 1935 Constitution, what I
say in this opinion is simply an endeavor on my part to be true
to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and
statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers
of the purity and sanctity of our Constitution, and
the protection and vindication of popular rights
will be safe and secure in their reverential
guardianship.
I only wish to help prevent, if I can, democracy and the
liberties of our people from vanishing in our land, because, as
Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in
memory of a vanished liberty is that it was lost
because its possessors failed to stretch forth a
saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief
Justice in the opinion that he has written in these cases. Along
with him, I vote to deny the motion to dismiss and give due
course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such
transcendental significance is likely to confront this Court in
the near or distant future as that posed by these petitions. For
while the specific substantive issue is the validity of
Presidential Proclamation No. 1102, an adverse judgment
may be fraught with consequences that, to say the least, are
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
position taken by the Chief Justice as set forth with his usual
lucidity and thoroughness has, on the whole, my concurrence,
subject, of course, to reservations insofar as it contains views
and nuances to which I have in the past expressed doubts.
Nonetheless, I feel that a brief expression of the reasons for
the stand I take would not be amiss.
In coping with its responsibility arising from the function of
judicial review, this Court is not expected to be an oracle
given to utterances of eternal verities, but certainly it is more
than just a keen but passive observer of the contemporary
scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the
formation of government policy, but as an arbiter of its legality.
Even then, there is realism in what Lerner did say about the
American Supreme Court as "the focal point of a set of
dynamic forces which [could play] havoc with the landmarks of
the American state and determine the power configuration of
the day."3 That is why there is this caveat. In the United States
as here, the exercise of the power of judicial review is
conditioned on the necessity that the decision of a case or
controversy before it so requires. To repeat, the Justices of
the highest tribunal are not, as Justice Frankfurter made clear,
"architects of policy. They can nullify the policy of others, they
are incapable of fashioning their own solutions for social
problems."4 Nonetheless, as was stressed by Professors
Black5 and Murphy,6 a Supreme Court by the conclusion it
reaches and the decision it renders does not merely check the
coordinate branches, but also by its approval stamps with
legitimacy the action taken. Thus in affirming constitutional
supremacy, the political departments could seek the aid of the
judiciary. For the assent it gives to what has been done
conduces to its support in a regime where the rule of law
holds sway. In discharging such a role, this Court must
necessarily take in account not only what the exigent needs of
the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the
pitfall of lack of understanding of the dominant forces at work
to seek a better life for all, especially those suffering from the
pangs of poverty and disease, by a blind determination to
adhere to the status quo. It would be tragic, and a clear case
of its being recreant to its trust, if the suspicion can with
reason be entertained that its approach amounts merely to a
militant vigilantism that is violently opposed to any form of
social change. It follows then that it does not suffice that
recourse be had only to what passes for scholarship in the law
that could be marred by inapplicable erudition and narrow
legalism. Even with due recognition, such factors, however, I
cannot, for reasons to be set more lengthily and in the light of
the opinion of the Chief Justice, reach the same result as the
majority of my brethren. For, in the last analysis, it is my firm
conviction that the institution of judicial review speaks too
clearly for the point to be missed that official action, even with
due allowance made for the good faith that invariably inspires
the step taken, has to face the gauntlet of a court suit
whenever there is a proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional
tradition when, at the outset, they would seek a dismissal of
these petitions. For them, the question raised is political and
thus beyond the jurisdiction of this Court. Such an approach
cannot be indicted for unorthodoxy. It is implicit in the concept
of the rule of law that rights belong to the people and the
government possesses powers only. Essentially then, unless
such an authority may either be predicated on express or
implied grant in the Constitution or the statutes, an exercise
thereof cannot survive an inquiry as to its validity.
Respondents through Solicitor-General Mendoza would deny
our competence to proceed further. It is their view, vigorously
pressed and plausibly asserted, that since what is involved is
not merely the effectivity of an amendment but the actual
coming into effect of a new constitution, the matter is not
justiciable. The immediate reaction is that such a contention is
to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the
solemn duty of the judiciary to determine what the law is and
to apply it in cases and controversies that call for
decision.7 Since the Constitution pre-eminently occupies the
highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is
vested. With the 1935 Constitution containing, as above
noted, an explicit article on the subject of amendments, it
would follow that the presumption to be indulged in is that the
question of whether there has been deference to its terms is
for this Court to pass upon. What is more, the
Gonzales,8 Tolentino9 and Planas 10 cases speak
unequivocally to that effect. Nor is it a valid objection to this
conclusion that what was involved in those cases was the
legality of the submission and not ratification, for from the very
language of the controlling article, the two vital steps are
proposal and ratification, which as pointed out in Dillon v.
Gloss, 11 "cannot be treated as unrelated acts, but as
succeeding steps in a single endeavor." 12 Once an aspect
thereof is viewed as judicial, there would be no justification for
considering the rest as devoid of that character. It would be
for me then an indefensible retreat, deriving no justification
from circumstances of weight and gravity, if this Court were to
accede to what is sought by respondents and rule that the
question before us is political.
On this point, it may not be inappropriate to refer to a separate
opinion of mine in Lansang v. Garcia. 13 Thus: "The term has
been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a
case appropriately subject to its cognizance, as to which there
has been a prior legislative or executive determination to
which deference must be paid. It has likewise been employed
loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof. If
to be delimited with accuracy, "political questions" should refer
to such as would under the Constitution be decided by the
people in their sovereign capacity or in regard to full
discretionary authority is vested either in the President or
Congress. It is thus beyond the competence of the judiciary to
pass upon. Unless clearly falling within the formulation, the
decision reached by the political branches whether in the form
of a congressional act or an executive order could be tested in
court. Where private rights are affected, the judiciary has no
choice but to look into its validity. It is not to be lost sight of
that such a power comes into play if there be an appropriate
proceeding that may be filed only after each coordinate
branch has acted. Even when the Presidency or Congress
possesses plenary powers, its improvident exercise or the
abuse thereof, if shown, may give rise to a justiciable
controversy. For the constitutional grant of authority is usually
unrestricted. There are limits to what may be done and how it
is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the
question of whether or not either of the two coordinate
branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than
political." 14 The view entertained by Professor Dodd is not too
dissimilar. For him such a term "is employed to designate
certain types of functions committed to the political organs of
government (the legislative and executive departments, or
either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial
decisions, both federal and state, he could conclude: "The
field of judicial nonenforceability is important, but is not large
when contrasted with the whole body of written constitutional
texts. The exceptions from judicial enforceability fall primarily
within the field of public or governmental interests." 16 Nor was
Professor Weston's formulation any different. As was
expressed by him: "Judicial questions, in what may be thought
the more useful sense, are those which the sovereign has set
to be decided in the courts. Political questions, similarly, are
those which the sovereign has entrusted to the 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 Bickel 18 of
Yale and Professor Freund 19 of Harvard, both of whom in turn
are unabashed admirers of Justice Brandeis. Whatever be the
merit inherent in their lack of enthusiasm for a more active
and positive role that must be played by the United States
Supreme Court in constitutional litigation, it must be judged in
the light of our own history. It cannot be denied that from the
well nigh four decades of constitutionalism in the Philippines,
even discounting an almost similar period of time dating from
the inception of American sovereignty, there has sprung a
tradition of what has been aptly termed as judicial activism.
Such an approach could be traced to the valedictory address
before the 1935 Constitutional Convention of Claro M. Recto.
He spoke of the trust reposed in the judiciary in these words:
"It is one of the paradoxes of democracy that the people at
times place more confidence in instrumentalities of the State
other than those directly chosen by them for the exercise of
their sovereignty." 20 It would thus appear that even then this
Court was expected not to assume an attitude of timidity and
hesitancy when a constitutional question is posed. There was
the assumption of course that it would face up to such a task,
without regard to political considerations and with no thought
except that of discharging its trust. Witness these words
Justice Laurel in an early landmark case, People v.
Vera, 21 decided in 1937: "If it is ever necessary for us to make
vehement affirmance during this formative period of political
history, it is that we are independent of the Executive no less
than of the Legislative department of our government —
independent in the performance of our functions, undeterred
by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of
our sworn duty as we see it and as we understand it." 22 The
hope of course was that such assertion of independence
impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake
that what elicits approval on the part of our people of a
judiciary ever alert to inquire into alleged breaches of the
fundamental law is the realization that to do so is merely to do
what is expected of it and that thereby there is no invasion of
spheres appropriately belonging to the political branches. For
it needs to be kept in kind always that it can act only when
there is a suit with proper parties before it, wherein rights
appropriate for judicial enforcement are sought to be
vindicated. Then, too, it does not approach constitutional
questions with dogmatism or apodictic certainty nor view them
from the shining cliffs of perfection. This is not to say though
that it is satisfied with an empiricism untroubled by the search
for jural consistency and rational coherence. A balance has to
be struck. So juridical realism requires. Once allowance made
that for all its care and circumspection this Court manned by
human beings fettered by fallibility, nonetheless earnestly and
sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution
be obeyed is easy to understand. It has not in the past shirked
its responsibility to ascertain whether there has been
compliance with and fidelity to constitutional requirements.
Such is the teaching of a host of cases from Angara v.
Electoral
Commission  23 to Planas v. Commission on Elections. 24 It
should continue to exercise its jurisdiction, even in the face of
a plausible but not sufficiently persuasive insistence that the
matter before it is political.
Nor am I persuaded that the reading of the current drift in
American legal scholarship by the 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: "Whether another method of
enforcing the Constitution could have been devised, the short
answer is that no such method developed. The argument over
the constitutionality of judicial review has long since been
settled by history. The power and duty of the Supreme Court
to declare statutes or executive action unconstitutional in
appropriate cases is part of the living Constitution. 'The course
of constitutional history,' Mr. Justice Frankfurter recently
remarked, 'has cast responsibilities upon the Supreme Court
which it would be "stultification" for it to evade.' " 28 Nor is it
only Dean Rostow who could point Frankfurter, reputed to
belong to the same school of thought opposed to judicial
activism, if not its leading advocate during his long stay in the
United States Supreme Court, as one fully cognizant of the
stigma that attaches to a tribunal which neglects to meet the
demands of judicial review. There is a statement of similar
importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously
perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.' " 29 Professor Konefsky,
like Dean Rostow, could not accept characterization of judicial
review as undemocratic. Thus his study of Holmes and
Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it
ought also to be remembered that architects of that system
did not equate constitutional government with unbridled
majority rule. Out of their concern for political stability and
security for private rights, ..., they designed a structure whose
keystone was to consist of barriers to the untrammeled
exercise of power by any group. They perceived no
contradiction between effective government and constitutional
checks. To James Madison, who may legitimately be
regarded as the philosopher of the Constitution, the scheme
of mutual restraints was the best answer to what he viewed as
the chief problem in erecting a system of free representative
government: 'In framing a government which is to be
administered by men over men, the great difficulty lies in this:
you must first enable the government to control the governed;
and in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review.
Could it be that the tone of discontent apparent in the writings
of eminent authorities on the subject evince at the most fears
that the American Supreme Court might overstep the bounds
allotted to the judiciary? It cannot be a denial of the fitness of
such competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate to the
decision of a case before them. That is why it has been
correctly maintained that notwithstanding the absence of any
explicit provision in the fundamental law of the United States
Constitution, that distinguished American constitutional
historian, Professor Corwin, could rightfully state that judicial
review "is simply incidental to the power of courts to interpret
the law, of which the Constitution is part, in connection with
the decision of cases." 31 This is not to deny that there are
those who would place the blame or the credit, depending
upon one's predilection, on Marshall's epochal opinion
in Marbury v. Madison. 32 Curtis belonged to that persuasion.
As he put it: "The problem was given no answer by the
Constitution. A hole was left where the Court might drive in
the peg of judicial supremacy, if it could. And that is what John
Marshall did." 33 At any rate there was something in the soil of
American juristic thought resulting in this tree of judicial power
so precariously planted by Marshall striking deep roots and
showing wonderful vitality and hardiness. It now dominates
the American legal scene. Through it, Chief Justice Hughes,
before occupying that exalted position, could state in a
lecture: "We are under a Constitution, but the Constitution is
what the judges say it is ... ." 34 The above statement is more
than just an aphorism that lends itself to inclusion in judicial
anthologies or bar association speeches. It could and did
provoke from Justice Jackson, an exponent of the judicial
restraint school of thought, this meaningful query: "The
Constitution nowhere provides that it shall be what the judges
say it is. How, did it come about that the statement not only
could be but could become current as the most
understandable comprehensive summary of American
Constitutional law?" 35 It is no wonder that Professor Haines
could pithily and succinctly sum up the place of the highest
American tribunal in the scheme of things in this wise: "The
Supreme Court of the United States has come to be regarded
as the unique feature of the American governmental
system." 36 Let me not be misunderstood. There is here no
attempt to close one's eyes to a discernible tendency on the
part of some distinguished faculty minds to look askance at
what for them may be inadvisable extension of judicial
authority. For such indeed is the case as reflected in two
leading cases of recent vintage, Baker v. Carr, 37 decided in
1962 and Powell v. MacCormack, 38 in 1969, both noted in the
opinion of the Chief Justice. The former disregarded the
warning of Justice Frankfurter in Colegrove v. Green 39 about
the American Supreme Court declining jurisdiction on the
question of apportionment as to do so would cut very deep
into the very being of Congress." 40 For him, the judiciary
"ought not to enter this political thicket." Baker has since then
been followed; it has spawned a host of cases. 41 Powell, on
the question of the power of a legislative body to exclude from
its ranks a person whose qualifications are uncontested, for
many the very staple of what is essentially political, certainly
goes even further than the authoritative Philippine decision
of Vera v. Avelino, 42 It does look then that even in the United
States, the plea for judicial 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 review articles, the reaction ranging
from guarded conformity to caustic criticism. 46 There was, to
be sure, no clear call to a court in effect abandoning the
responsibility incumbent on it to keep governmental agencies
within constitutional channels. The matter has been put in
temperate terms by Professor Frank thus: "When allowance
has been made for all factors, it nevertheless seems to me
that the doctrine of political questions ought to be very sharply
confined to where the functional reasons justify it and that in a
give involving its expansion there should be careful
consideration also of the social considerations which may
militate against it. The doctrine has a certain specious charm
because of its nice intellectualism and because of the fine
deference it permits to expertise, to secret knowledge, and to
the prerogatives of others. It should not be allowed to grow as
a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal,
coming from such impeccable sources of the worth and
significance of judicial review in the United States. I cannot
resist the conclusion then that the views advanced on this
subject by distinguished counsel for petitioners, with Senators
Lorenzo M. Tañada and Jovito Salonga at the van, rather than
the advocacy of the 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
few in number, which require that there be obedience to the
literal terms of the applicable provision. It is understandable
why it should be thus. If the Constitution is the supreme law,
then its mandate must be fulfilled. No evasion is tolerated.
Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or
disregarded. This is not to deny that a recognition conclusive
effect attached to the electorate manifesting its will to vote
affirmatively on the amendments proposed poses an obstacle
to the judiciary being insistent on the utmost regularity. Briefly
stated, substantial compliance is enough. A great many
American State decisions may be cited in support of such a
doctrine. 50
Even if the assumption be indulged in that Article XV is not
phrased in terms too clear to be misread, so that this Court is
called upon to give meaning and perspective to what could be
considered words of vague generality, pregnant with
uncertainty, still whatever obscurity it possesses is illumined
when the light of the previous legislation is thrown on it. In the
first Commonwealth Act, 51 submitting to the Filipino people for
approval or disapproval certain amendments to the original
ordinance appended to the 1935 Constitution, it was made
that the election for such purpose was to "be conducted in
conformity with the provisions of the Election Code insofar as
the same may be applicable." 52 Then came the
statute, 53 calling for the plebiscite on the three 1940
amendments providing for the plebiscite on the three 1930
amendments providing for a bicameral Congress or a Senate
and a House of Representatives to take the place of a
unicameral National Assembly, 54 reducing the term of the
President to four years but allowing his 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 Act 58 which specifically made
applicable the then Election Code. 59 There is a similar
provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional
Convention, saw to it that there be an increase in the
membership of the House of Representatives a maximum of
one hundred eighty and assured the eligibility of senators and
representatives to become members of such constituent body
without forfeiting their seats, as proposed amendments to be
voted on in the 1967 elections. 61 That is the consistent course
of interpretation followed by the legislative branch. It is most
persuasive, if not controlling. The restraints thus imposed
would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional
Convention or under his martial law prerogatives, he was not
devoid of power to specify the mode of ratification. On two
vital points, who can vote and how they register their will,
Article XV had been given a definitive construction. That is
why I fail to see sufficient justification for this Court affixing the
imprimatur of its approval on the mode employed for the
ratification of the revised Constitution as reflected in
Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the
failure to comply with the requirements of Article XV.
Independently of the lack of validity of the ratification of the
new Constitution, if it be accepted by the people, in whom
sovereignty resides according to the Constitution, 62 then this
Court cannot refuse to yield assent to such a political decision
of the utmost gravity, conclusive in its effect. Such a
fundamental principle is meaningless if it does not imply, to
follow Laski, that the nation as a whole constitutes the "single
center of ultimate reference," necessarily the possessor of
that "power that is able to resolve disputes by saying the last
word." 63 If the origins of the democratic polity enshrined in the
1935 Constitution with the declaration that the Philippines is a
republican state could be traced back to Athens and to Rome,
it is no doubt true, as McIver pointed out, that only with the
recognition of the nation as the separate political unit in public
law is there the juridical recognition of the people composing it
"as the source of political authority." 64 From them, as Corwin
did stress, emanate "the highest possible embodiment of
human will," 65 which is supreme and must be obeyed. To
avoid any confusion and in the interest of clarity, it should be
expressed in the manner ordained by law. Even if such is not
the case, however, once it is manifested, it is to be accepted
as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit.
Its officials must act accordingly. No agency is exempt such a
duty, not even this Court. In that sense, the lack of regularity
in the method employed to register its wishes is fatal in its
consequences. Once the fact of acceptance by people of a
new fundamental law is made evident, the judiciary is left with
no choice but to accord it recognition. The obligation to render
it obeisance falls on the courts as well.
There are American State decisions that enunciate such a
doctrine. While certainly not controlling, they are not entirely
bereft of persuasive significance. In Miller v.
Johnson, 66 decided in 1892, it was set forth in the opinion of
Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the
purpose of framing a new constitution and the election of
delegates. It provided that before any form of constitution
made by them should become operative, it should be
submitted to the vote of the state and ratified by a majority of
those voting. The constitution then in force authorized the
legislature, the preliminary steps having been taken, to call a
convention "for the purpose of readopting, amending, or
changing" it contained no provision giving the legislature the
power to require a submission of its work to a vote of the
people. The convention met in September, 1890. By April,
1891, it completed a draft of a constitution, submitted it to a
popular vote, and then adjourned until September following.
When the convention reassembled, the delegates made
numerous changes in instrument. As thus amended, it was
promulgated by the convention of September 28, 1891, as the
new constitution. An action was brought to challenge its
validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of
men, not selected by the people according to the forms of law,
were to formulate an instrument and declare it the
constitution, it would undoubtedly be the duty of the courts to
declare its work a nullity. This would be revolution, and this
the courts of the existing government must resist until they are
overturned by power, and a new government established. The
convention, however, was the offspring of law. The instrument
which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It
is a matter of current history that both the executive and
legislative branches of the government have recognized its
validity as a constitution, and are now daily doing so. ... While
the judiciary should protect the rights of the people with great
care and jealousy, because this is its duty, and also because;
in times of great popular excitement, it is usually their last
resort, yet it should at the same time be careful not to
overstep the proper bounds of its power, as being perhaps
equally dangerous; and especially where such momentous
results might follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty requires, the
overthrow of the work of the convention." 67 In Taylor v.
Commonwealth, 68 a 1903 decision, it was contended that the
Virginia Constitution reclaimed in 1902 is invalid as it was
ordained and promulgated by the convention without being
submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice
Harrison: "The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the
people of the state to revise and amend the Constitution of
1869. The result of the work of the convention has been
recognized, accepted, and acted upon as the only valid
Constitution of the state by the Governor in swearing fidelity to
it and proclaiming it, as directed thereby; by the Legislature in
its formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the convention which
assembled in the city of Richmond on the 12th day of June,
1901, as the Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and the
people in their primary capacity by peacefully accepting it and
acquiescing in it, by registering as voters under it to the extent
of thousands throughout the state, and by voting, under its
provisions, at a general election for their representatives in the
Congress of the United States. The Constitution having been
thus acknowledged and accepted by the office administering
the government and by the people of the state, and there
being no government in existence under the Constitution of
1869 opposing or denying its validity, we have no difficulty in
holding that the Constitution in question, which went into
effect at noon on the 10th day of July, 1902, is the only
rightful, valid, and existing Constitution of this state, and that
to it all the citizens of Virginia owe their obedience and loyal
allegiance." 69
It cannot be plausibly asserted then that premises valid in law
are lacking for the claim that the revised Constitution has
been accepted by the Filipino people. What is more, so it has
been argued, it is not merely a case of its being implied.
Through the Citizens Assemblies, there was a plebiscite with
the result as indicated in Proclamation No. 1102. From the
standpoint of respondents then, they could allege that there
was more than just mere acquiescence by the sovereign
people. Its will was thus expressed formally and unmistakably.
It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining
its preference. Nor is the fact that Filipinos of both sexes
above the age of fifteen were given the opportunity to vote to
be deplored. The greater the base of mass participation, the
more there is fealty to the democratic concept. It does
logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This
Court is to respect what had thus received the people's
sanction. That is not for me though whole of it. Further
scrutiny even then is not entirely foreclosed. There is still an
aspect that is judicial, an inquiry may be had as to whether
such indeed was the result. This is no more than what the
courts do in election cases. There are other factors to bear in
mind. The fact that the President so certified is 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
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.
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.
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 sought to be annulled is
Proclamation No. 1102, what petitioners really
seek to invalidate is the new Constitution", and
their actions must be dismissed, because:
— "the Court may not inquire into the validity of
the procedure for ratification" which
is "political in character" and that "what is sought
to be invalidated is not an act of the President
but of the people;
— "(T)he fact of approval of the new
Constitution by an overwhelming majority of the
votes cast as declared and certified in
Proclamation No. 1102 is conclusive on the
courts;
— "Proclamation No. 1102 was issued by the
President in the exercise of legislative power
under martial law. ... Alternatively, or
contemporaneously, he did so as "agent" of the
Constitutional Convention;"
— "alleged defects, such as absence of secret
voting, enfranchisement of persons less than 21
years, non supervision (by) the Comelec are
matters not required by Article XV of the 1935
Constitution"; (sic)
— "after ratification, whatever defects there
might have been in the procedure are overcome
and mooted (and muted) by the fact of
ratification"; and
— "(A)ssuming finally that Article XV of the 1935
Constitution was not strictly followed, the
ratification of the new Constitution must
nonetheless be respected. For the procedure
outlined in Article XV was not intended to be
exclusive of other procedures, especially one
which contemplates popular and direct
participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in
annulling Proclamation No. 1102 would really be "invalidating
the new Constitution", the terms and premises of the issues
have to be defined.
— Respondents themselves assert that
"Proclamation No. 1102 ... is plainly
merely declaratory of the fact that the 1973
Constitution has been ratified and has come into
force.4
— The measure of the fact of ratification is
Article XV of the 1935 Constitution. This has
been consistently held by the Court in
the Gonzales:5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized
"that the provisions of Section 1 of Article XV of
the Constitution, dealing with the procedure or
manner of amending the fundamental law are
binding upon the Convention and the other
departments of the government. It must be
added that ... they are no less binding upon
the people."7
— In the same Tolentino case, this Court further
proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the
present Charter, any proposal for such
amendment which is not in conformity with
the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the
sanction of this Court."8
— As continues to be held by a majority of this
Court, proposed amendments to the Constitution
"should be ratified in only one way, that is, in an
election or plebiscite held in accordance with law
and participated in only by qualified and duly
registered voters"9 and under the supervision of
the Commission on Elections. 10
— Hence, if the Court declares Proclamation
1102 null and void because on its face, the
purported ratification of the proposed
Constitution has not faithfully nor substantially
observed nor complied with the mandatory
requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the
proposed new Constitution but would be simply
declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies
referendums does not pass the constitutional
test and that the proposed new Constitution
has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by
respondent to be "plainly merely declaratory" of
the disputed fact of ratification, they cannot
assume the very fact to be established and beg
the issue by citing the 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
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 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 session till it approves the legislative
measures most needed by the country.
Democracy is on trial in the Philippines, and
surely it will emerge victorious as a permanent
way of life in this country, if each of the great
branches of the Government, within its own
allocated sphere, complies with its own
constitutional duty, uncompromisingly and
regardless of difficulties.
Our Republic is still young, and the vital
principles underlying its organic structure should
be maintained firm and strong, hard as the best
of steel, so as to insure its growth and
development along solid lines of a stable and
vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority
judgment (declaring null and void the rental and export control
executive orders) likewise observed that "(T)he truth is that
under our concept of constitutional government, in times of
extreme perils more than in normal circumstances 'the various
branches, executive, legislative, and judicial,' given the ability
to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of
discharging its duty and responsibility has been considerably
lightened by the President's public manifestation of adherence
to constitutional processes and of working within the proper
constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme
Court is the final arbiter of the Constitution. It can and will
probably determine the validity of this Constitution. I did not
want to talk about this because actually there is a case
pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to
appointments, the matter falls under a general provision which
authorizes the Prime Minister to appoint additional members
to the Supreme Court. Until the matter of the new Constitution
is decided, I have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state
Supreme Court of Mississippi held that the questions of
whether the submission of the proposed constitutional
amendment of the State Constitution providing for an elective,
instead of an appointive, judiciary and whether the proposition
was in fact adopted, were justifiable and not political
questions, we may echo the words therein of Chief Justice
Whitfield that "(W)e do not seek a jurisdiction not imposed
upon us by the Constitution. We could not, if we would,
escape the exercise of that jurisdiction which the Constitution
has imposed upon us. In the particular instance in which we
are now acting, our duty to know what the Constitution of the
state is, and in accordance with our oaths to support and
maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one
which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my
colleagues' contrary views, we are faced with the hard choice
of maintaining a firm and strict — perhaps, even rigid — stand
that the Constitution is a "superior paramount law,
unchangeable by ordinary means" save in the particular mode
and manner prescribed therein by the people, who, in
Cooley's words, so "tied up (not only) the hands of their official
agencies, but their own hands as well" 18 in the exercise of
their sovereign will or a liberal and flexible stand that would
consider compliance with the constitutional article on the
amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at
bar, signifies that the Constitution may be amended in toto or
otherwise exclusively "by approval by a majority of the votes
cast an election at which the amendments are submitted to
the people for their ratification", 19 participated
in only by qualified and duly registered voters twenty-one
years of age or over 20 and duly supervised by the
Commission on Elections, 21 in accordance with the cited
mandatory constitutional requirements.
The alternative choice of a liberal stand would permit
a disregard of said requirements on the theory urged by
respondents that "the procedure outlined in Article XV
was not intended to be exclusive of other procedures
especially one which contemplates popular and direct
participation of the citizenry", 22 that the constitutional age and
literacy requirements and other statutory safeguards for
ascertaining the will of the majority of the people may likewise
be changed as "suggested, if not prescribed, by the people
(through the Citizens Assemblies) themselves", 23 and that the
Comelec is constitutionally "mandated to oversee ... elections
(of public officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first
declared in the historic 1803 case of Marbury vs.
Madison 25 the U.S. Supreme Court's power of judicial review
and to declare void laws repugnant to the Constitution, there
is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior
paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts,
alterable when the legislature shall please to alter it. If the
former part of the alternative be true, then a legislative act,
contrary to the Constitution, is not law; if the latter part be true,
then written constitutions are absurd attempts on the part of a
people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and
a third later in the 1936 landmark case of Angara vs. Electoral
Commission, 26 "(T)he Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the
limitations of good government and restrictions embodied in
our Constitution are real as they should be in any living
Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the
powers of government" placed upon the judiciary the great
burden of "determining the nature, scope and extent of such
powers" and stressed that "when the judiciary mediates to
allocate constitutional boundaries, it does not assert any
superiority over the other departments ... but only asserts the
solemn and sacred obligation entrusted to it by the
Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819
case of McCulloch vs. Maryland  27 the "climactic
phrase," 28 "we must never forget that it is a constitution we
are expounding," — termed by Justice Frankfurter as "the
single most important utterance in the literature of
constitutional law — most important because most
comprehensive and comprehending." 29 This enduring concept
to my mind permeated to this Court's exposition and rationale
in the hallmark case of Tolentino, wherein we rejected the
contentions on the Convention's behalf "that the issue ... is a
political question and that the Convention being a legislative
body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress
and the Courts." 30
This Court therein made its unequivocal choice of strictly
requiring faithful (which really includes substantial)
compliance with the mandatory requirements of the amending
process.
1. In denying reconsideration of our judgment of October 16,
1971 prohibiting the submittal in an advance election of 1971
Constitutional Convention's Organic Resolution No. 1
proposing to amend Article V, section 1 of the Constitution by
lowering the voting age to 18 years (vice 21 years) 30a
"without prejudice to other amendments that will be proposed
in the future ... on other portions of the amended section", this
Court stated that "the constitutional provision in question (as
proposed) presents no doubt which may be resolved in favor
of respondents and intervenors. We do not believe such doubt
can exist only because it is urged that the end sought to be
achieved is to be desired. Paraphrasing no less than the
President of Constitutional Convention of 1934, Claro M.
Recto, let those who would put aside, invoking grounds at
best controversial, any mandate of the fundamental law
purportedly in order to attain some laudable objective bear in
mind that someday somehow others with purportedly more
laudable objectives may take advantage of the precedent and
continue the destruction of the Constitution, making those who
laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own
folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal
operation and the performance of its assigned
mission to propose amendments to the
Constitution, the Convention and its officers and
members are all subject to all the provisions of
the existing Constitution. Now We hold that even
as to its latter task of proposing amendments to
the Constitution, it is subject to the provisions of
Section 1 of Article XV. This must be so,
because it is plain to Us that the framers of the
Constitution took care that the process of
amending the same should not be undertaken
with the same ease and facility in changing an
ordinary legislation. Constitution making is the
most valued power, second to none, of the
people in a constitutional democracy such as the
one our founding fathers have chosen for this
nation, and which we of the succeeding
generations generally cherish. And because the
Constitution affects the lives,
fortunes, future and every other conceivable
aspect of the lives of all the people within the
country and those subject to its sovereignty,
every degree of care is taken in preparing and
drafting it. A constitution worthy of the people for
deliberation and study. It is obvious that
correspondingly, any amendment of the
Constitution is of no less importance than the
whole Constitution itself, and perforce must be
conceived and prepared with as much care and
deliberation. From the very nature of things, the
drafters of an original constitution, as already
observed earlier, operate without any limitations,
restraints or inhibitions save those that they may
impose upon themselves. This is not necessarily
true of subsequent conventions called to amend
the original constitution. Generally, the framers
of the latter see to it that their handiwork is not
lightly treated and as easily mutilated or
changed, not only for reasons purely personal
but more importantly, because written
constitutions are supposed to be designed so as
to last for some time, if not for ages, or for, at
least, as long as they can be adopted to the
needs and exigencies of the people, hence, they
must be insulated against precipitate and hasty
actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the
original constitutions carry with them limitations
and conditions, more or less stringent, made so
by the people themselves, in regard to the
process of their amendment. And when such
limitations or conditions are so incorporated in
the original constitution, it does not lie in the
delegates of any subsequent convention to
claim that they may ignore and disregard such
conditions because they are powerful and
omnipotent as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the
doctrine of proper submission first advanced in Gonzales vs.
Comelec33, thus:
We are certain no one can deny that in order
that a plebiscite for the ratification of an
amendment to the Constitution may be validly
held, it must provide the voter not only sufficient
time but ample basis for an intelligent
 appraisal of the nature of amendment per se as
well as its relation to the other parts of the
Constitution with which it has to form a
harmonious whole. In the context of the present
state of things, where the Convention hardly
started considering the merits of hundreds, if not
thousands, proposals to amend the existing
Constitution, to present to people any single
proposal or a few of them cannot comply with
this requirement. We are of the opinion that the
present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of
reference they can base their judgment on. We
reject the rationalization that the present
Constitution is a possible frame of reference, for
the simple reason that intervenors themselves
are stating the sole purpose of the proposed
amendment is to enable the eighteen year olds
to take part in the election for the ratification of
the Constitution to be drafted by the Convention.
In brief, under the proposed plebiscite, there can
be, in the language of Justice Sanchez,
speaking for the six members of the Court in
Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court 35 in a separate
concurrence in Tolentino, expressed their "essential
agreement" with Justice Sanchez' separate opinion
in Gonzales on the need for "fair submission (and) intelligent
rejection" as "minimum requirements that must be met in
order that there can be a proper submission to the people of a
proposed constitutional amendment" thus:
... amendments must be fairly laid before the
people for their blessing or spurning. The people
are not to be mere rubber stamps. They are not
to vote blindly. They must be afforded ample
opportunity to mull over the original provisions,
compare them with the proposed amendments,
and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus
of extraneous or possibly insidious influences.
We believe the word "submitted" can only mean
that the government, within its maximum
capabilities, should strain every effort to inform
every citizen of the provisions to be amended,
and the proposed amendments and the
meaning, nature and effects thereof. By this, we
are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot
be reached, then there is no submission within
the meaning of the word as intended by the
framers of the Constitution. What the
Constitution in effect directs is that the
government, in submitting an amendment for
ratification, should put every instrumentality or
agency within its structural framework to
enlighten the people, educate them with respect
to their act of ratification or rejection. For as we
have earlier stated, one thing is submission and
another is ratification. There must be fair
submission, intelligent consent or rejection. 36
They stressed further the need for undivided attention,
sufficient information and full debate, conformably to the
intendment of Article XV, section 1 of the Constitution, in this
wise:
A number of doubts or misgivings could
conceivably and logically assail the average
voter. Why should the voting age be lowered at
all, in the first place? Why should the new voting
age be precisely 18 years, and not 19 or 20?
And why not 17? Or even 16 or 15? Is the 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 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:
... The preamble of the Constitution says that the
Constitution has been ordained by the 'Filipino
people, imploring the aid of Divine Providence.'
Section 1 of Article XV is nothing than a part of
the Constitution thus ordained by the people.
Hence, in construing said section, We must read
it as if the people had said, 'This Constitution
may be amended, but it is our will that the
amendment must be proposed and submitted to
Us for ratification only in the manner herein
provided.' ... Accordingly, the real issue here
cannot be whether or not the amending process
delineated by the present Constitution may be
disregarded in favor of allowing the sovereign
people to express their decision on the proposed
amendments, if only because it is evident that
the very idea of departing from the fundamental
law is anachronistic in the realm of
constitutionalism and repugnant to the essence
of the rule of law; rather, it is whether or not the
provisional nature of the proposed amendment
and the manner of its submission to
the people for ratification or
rejection conform with the mandate of the
people themselves in such regard, as expressed
in, the Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated
its position: "(I)t would be tragic and contrary to the plain
compulsion of these perspectives, if the Court were to allow
itself in deciding this case to be carried astray by
considerations other than the imperatives of
the rule of law and of the applicable provisions of
the Constitution. Needless to say, in a larger measure than
when it binds other departments of the government or any
other official or entity, the Constitution imposes upon the
Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties and by striking down
any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion
in Tolentino concurring with this Court's denial of the motion
for reconsideration, succinctly restated this Court's position on
the fundamentals, as follows:
— On the premature submission of a partial
amendment proposal, with a "temporary
provisional or tentative character": — "... a
partial amendment would deprive the voters of
the context which is usually necessary for them
to make a reasonably intelligent appraisal of the
issue submitted for their ratification or
rejection. ... Then, too, the submission to a
plebiscite of a partial amendment, without
a definite frame of reference, is fraught with
possibilities which may jeopardize the social
fabric. For one thing, it opens the door to wild
speculations. It offers ample opportunities for
overzealous leaders and members of opposing
political camps to unduly exaggerate the pros
and cons of the partial amendment proposed. In
short, it is apt to breed false hopes and
create wrong impressions. As a consequence, it
is bound to unduly strain the people's faith in the
soundness and validity of democratic processes
and institutions.
— On the plea to allow submission to the
sovereign people of the "fragmentary and
incomplete" proposal, although inconsistent with
the letter and spirit of the Constitution: "The
view, has, also, advanced that the foregoing
considerations are not decisive on the issue
before Us, inasmuch as the people are
sovereign, and the partial amendment involved
in this case is being submitted to them. The
issue before Us is whether or not said partial
amendment may be validly submitted to the
people for ratification "in a plebiscite coincide
with the local elections in November 1971,"
and this particular issue will not be submitted to
the people. What is more, the Constitution
does not permit its submission to the people.
The question sought to be settled in the
scheduled plebiscite is whether or not the
people are in favor of the reduction of the voting
age.
— On a "political" rather than "legalistic"
approach: "Is this approach to the problem too
"legalistic?" This term has possible
connotations. It may mean strict adherence to
the law, which in the case at bar is the Supreme
Law of the land. On point, suffice it to say that,
in compliance with the specific man of such
Supreme Law, the members of the Supreme
Court taken the requisite "oath to support and
defend the Constitution." ... Then, again, the
term "legalistic" may be used to suggest
inversely that the somewhat strained
interpretation of the Constitution being urged
upon this Court be tolerated or, at least,
overlooked, upon the theory that the partial
amendment on voting age is badly needed and
reflects the will of the people, specially the
youth. This course of action favors, in effect,
adoption of a political approach, inasmuch as
the advisability of the amendment and an
appraisal of the people's feeling thereon political
matters. In fact, apart from the obvious message
of the mass media, and, at times, of the pulpit,
the Court has been literally bombarded with
scores of handwritten letters, almost all of which
bear the penmanship and the signature of girls,
as well as letterhead of some sectarian
educational institutions, generally stating that the
writer is 18 years of age and urging that she or
he be allowed to vote. Thus, the pressure of
public opinion has brought to bear heavily upon
the Court for a reconsideration of its decision in
the case at bar.
As above stated, however, the wisdom of the
amendment and the popularity thereof are
political questions beyond our province. In fact,
respondents and the intervenors originally
maintained that We have no jurisdiction to
entertain the petition herein, upon the ground
that the issue therein raised is a political one.
Aside from the absence of authority to pass
upon political question, it is obviously improper
and unwise for the bench to develop into such
questions owing to the danger of getting
involved in politics, more likely of a partisan
nature, and, hence, of impairing the image and
the usefulness of courts of justice as objective
and impartial arbiters of justiciable
controversies.
Then, too, the suggested course of action, if
adopted, would constitute a grievous disservice
to the people and the very Convention itself.
Indeed, the latter and the Constitution it is in the
process of drafting stand essentially for the Rule
of Law. However, as the Supreme Law of the
land, a Constitution would not be worthy of its
name, and the Convention called upon to draft it
would be engaged in a futile undertaking, if we
did not exact faithful adherence to
the fundamental tenets set forth in the
Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved,
consented to or even overlooked a
circumvention of said tenets and provisions,
because of the good intention with which
Resolution No. 1 is animated, the Court would
thereby become the Judge of the good or bad
intentions of the Convention and thus be
involved in a question essentially political in
nature.
This is confirmed by the plea made in the
motions for reconsideration in favor of the
exercise of judicial statesmanship in deciding
the present case. Indeed, "politics" is the word
commonly used to epitomize compromise, even
with principles, for the sake of political
expediency or the advancement of the bid for
power of a given political party. Upon the other
hand, statesmanship is the expression usually
availed of to refer to high politics or politics on
the highest level. In any event, politics, political
approach, political expediency and
statesmanship are generally associated, and
often identified, with the dictum that "the end
justifies the means." I earnestly hope that the
administration of justice in this country and the
Supreme Court, in particular, will adhere to or
approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal
that "(T)he primary purpose for the submission of the
proposed amendment lowering the voting age to the plebiscite
on November 8, 1971 is to enable the youth 18 to 20 years
who comprise more than three (3) million of our population to
participate in the ratification of the new Constitution in so far
as "to allow young people who would be governed by the
Constitution to be given a say on what kind of Constitution
they will have" is a laudable end, ... those urging the vitality
and importance of the proposed constitutional amendment
and its approval ahead of the complete and final draft of the
Constitution must seek a valid solution to achieve it in a
manner sanctioned by the amendatory process ordained by
our people in the present Constitution" 41 — so that there may
be "submitted, not 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.
III
1. To restate the basic premises, the people provided in
Article XV of the Constitution for the amending
process only "by approval by a majority of the votes cast at an
election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those
thereby enfranchised and granted the right of suffrage may
speak the "will of the body politic", viz, qualified literate voters
twenty one years of age or over with one year's residence in
the municipality where they have registered.
The people, not as yet satisfied, further provided by
amendment duly approved in 1940 in accordance with Article
XV, for the creation of an independent Commission on
Elections with "exclusive charge" for the purpose of "insuring
free, orderly and honest elections" and ascertaining the true
will of the electorate — and more, as ruled by this Court
in Tolentino, in the case of proposed constitutional
amendments, insuring proper submission to the electorate of
such proposals. 42
2. A Massachussets case 43 with a constitutional system and
provisions analogous to ours, best defined the uses of the
term "people" as a body politic and "people" in the political
sense who are synonymous with the qualified voters granted
the right to vote by the existing Constitution and who therefore
are "the sole organs through which the will of the body politic
can be expressed."
It was pointed out therein that "(T)he word 'people' may have
somewhat varying significations dependent upon the
connection in which it is used. In some connections in the
Constitution it is confined to citizens and means the same as
citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, 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 intrusted with the exercise of
the sovereign power and the conduct of government.
The 'people' in the Constitution in a practical sense means
those who under the existing Constitution possess the right to
exercise the elective franchise and who, while that instrument
remains in force unchanged, will be the sole organs through
which the will of the body politic can be expressed.
'People' for political purposes must be
considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the
people are thus the source of political power, their
governments, national and state, have been limited by
constitutions, and they have themselves thereby set bounds
to their own power, as against the sudden impulse of mere
majorities." 44
From the text of Article XV of our Constitution, requiring
approval of amendment proposals "by a majority of the votes
cast at an election at which the amendments are submitted to
the people for their ratification", it seems obvious as 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 level 45 the Revised Barrio Charter fixes
certain safeguards for the holding of barrio plebiscites thus:
"SEC. 6. Plebiscite. — A plebiscite may be held in the barrio
when authorized by a majority vote of the members present in
the barrio assembly, there being a quorum, or when called by
at least four members of the barrio council: Provided,
however, That no plebiscite shall be held until after thirty days
from its approval by either body, and such plebiscite has been
given the widest publicity in the barrio, stating the date, time
and place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further
requires that "(A)ll duly registered barrio assembly
members qualified to vote may vote in the plebiscite. Voting
procedures may be made either in writing as in regular
elections, and/or declaration by the voters to the board of
election tellers." 47
The subjects of the barrio plebiscites are likewise delimited
thus: "A plebiscite may be called to decide on the recall of any
member of the barrio council. A plebiscite shall be called to
approve any budgetary, supplemental appropriations or
special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated
measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is
necessary." 48
The qualifications for voters in such barrio plebiscites and
elections of barrio officials 49 comply with the suffrage
qualifications of Article V, section 1 of the Constitution and
provide that "(S)EC. 10. Qualifications of Voters and
Candidates. — Every citizen of the Philippines, twenty one
years of age or over, able to read and write, who has been a
resident of the barrio during the six months immediately
preceding the election, duly registered in the list of voters by
the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the
mandatory requirements under the 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
itself 51 has been called or held, there cannot be said to have
been a valid ratification.
2. Petitioners raised serious questions as to the veracity and
genuineness of the reports or certificates of results
purportedly showing unaccountable discrepancies in seven
figures in just five provinces 52 between the reports as certified
by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which
latter reports respondents disclaimed inter alia as not final and
complete or as not signed; 53 whether the reported votes of
approval of the proposed Constitution conditioned upon the
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
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:
"RESOLVED, AS IT IS HEREBY
RESOLVED, that the 1971
Constitutional Convention propose
to President Ferdinand E. Marcos
that a decree be issued calling a
plebiscite for the ratification of the
proposed New Constitution on
such appropriate date as he shall
determine and providing for the
necessary funds therefor, and that
copies of this resolution as
 approved in plenary session be
transmitted to the President of the
Philippines and the Commission
on Elections for implementation."
He suggested that in view of the expected
approval of the final draft of the new Constitution
by the end of November 1972 according to the
Convention's timetable, it would be necessary to
lay the groundwork for the appropriate agencies
of the government to undertake the necessary
preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.)
contended that the resolution was unnecessary
because section 15, Article XVII on the
Transitory Provision, which had already been
approved on second and third readings,
provided that the new constitution should be
ratified in a plebiscite called for the purpose by
the incumbent President. Delegate Duavit
replied that the provision referred to
did not include the appropriation of funds for the
plebiscite and that, moreover, the resolution was
intended to serve formal notice to the President
and the Commission on Elections to initiate the
necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang
suggested that a reasonable period for an
information campaign was necessary in order to
properly apprise the people of the implications
and significance of the new charter. Delegate
Duavit agreed, adding that this was precisely
why the resolution was modified to give the
President the discretion to choose the most
appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal
communication to the President informing him of
the adoption of the new Constitution would not
suffice considering that under Section 15 of the
Transitory Provisions, the President would be
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.
12.6 In reply to Delegate Britanico, Delegate
Duavit stated that the mechanics for the holding
of the plebiscite would be laid down by the
Commission on Elections in coordination with
the President.
12.7 Delegate Catan inquired if such mechanics
for the plebiscite could include a partial lifting of
martial law in order to allow the people to
assemble peaceably to discuss the new
Constitution. Delegate Duavit suggested that the
Committee on Plebiscite and Ratification could
coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous
question. The Chair declared that there was one
more interpellant and that a prior reservation
had been made for the presentation of such a
motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his
interpellation that there was actually no need for
such a resolution in view of the provision of
section 15, Article XVII on the Transitory
Provisions. Delegate Duavit disagreed, pointing
out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the
debate and proceed to the period of
amendment.
13.1 Floor Leader Montejo stated that there
were no reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the
previous question. Submitted to a vote, the
motion was approved.
Upon request of the Chair, Delegate Duavit
restated the resolution for voting.
14.1. Delegate Ordoñez moved for nominal
voting. Submitted to a vote, the motion was lost.
14.2. Thereupon, the Chair submitted the
resolution to a vote. It was approved by a show
of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and
to give due course to the petitions.
Promulgated:
4, 1973 *
ANTONIO, J., concurring:
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
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
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
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 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 issued, the nation was confronted in the opinion of the
late President with an 'emergency greater than war'; and in
sustaining certain of the New Deal measures the Court
invoked the justification of 'emergency.' In the final result
constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well,
seem likely to do so still more pronouncedly under fresh
conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the
authority of a constitutional government is
resisted openly by large numbers of citizens who
are engaged in violent insurrection against
enforcement of its laws or are bent on capturing
it illegally or destroying it altogether. The third
crisis, one recognized particularly in modern
times as sanctioning emergency action by
constitutional governments, is economic
depression. The economic troubles which
plagued all the countries of the world in the early
thirties involved governmental methods of an
unquestionably dictatorial character in many
democracies. It was thereby acknowledged that
an economic existence as a war or a rebellion.
And these are not the only cases which have
justified extraordinary governmental action in
nations like the United States. Fire, flood,
drought, earthquake, riots, great strikes have all
been dealt with by unusual and of dictatorial
methods. Wars are not won by debating
societies, rebellions are not suppressed by
judicial injunctions, reemployment of twelve
million jobless citizens will not be effected
through a scrupulous regard for the tenets of
free enterprise, hardships caused by the
eruptions of nature cannot be mitigated letting
nature take its course. The Civil War, the
depression of 1933 and the recent global conflict
were not and could not have been successfully
resolved by governments similar to those of
James Buchanan, William Howard Taft, or
Calvin Coolidge. (Rossiter, Constitutional
Dictatorship — Crisis of Government in the
Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that
the referendum in question not having been done
inaccordance with the provisions of existing election laws,
which only qualified voters who are allowed to participate,
under the supervision of the Commission on Elections, the
new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of
the 1935 Constitution provides the method for the revision of
the constitution, and automatically apply in the final approval
of such proposed new Constitution the provisions of the
election law and those of Article V and X of the old
Constitution. We search in vain for any provision in the old
charter specifically providing for such procedure in the case of
a total revision or a rewriting of the whole constitution.
1. There is clearly a distinction
between revision and amendment of an existing constitution.
Revision may involve a rewriting of the whole constitution. The
act of amending a constitution, on the other hand, envisages
a change of only specific provisions. The intention of an act to
amend is not the change of the entire constitution but only
the improvement of specific parts of the existing constitution of
the addition of provisions deemed essential as a consequence
of new constitutions or the elimination of parts already
considered obsolete or unresponsive to the needs of the
times.1 The 1973 Constitution is not a mere amendment to the
1935 Constitution. It is a completely new fundamental charter
embodying new political, social and economic concepts.
According to an eminent authority on Political Law, "The
Constitution of the Philippines and that of the United States
expressly provide merely for methods of amendment. They
are silent on the subject of revision. But this is not a fatal
omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the
Philippines or of the United States even were such
conventions called merely for the purpose of proposing and
submitting amendments to the people. For in the final
analysis, it is the approval of the people that gives validity to
any proposal of amendment or revision." (Sinco, Philippine
Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for
the method or procedure for the revision or for the approval of
a new constitution, should it now be held, that the people have
placed such restrictions on themselves that they are not
disabled from exercising their right as the ultimate source of
political power from changing the old constitution which, in
their view, was not responsive to their needs and in adopting
a new charter of government to enable them to rid themselves
from the shackles of traditional norms and to pursue with new
dynamism the realization of their true longings and
aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of
the base of political participation, by the inclusion of the youth
in the process of ratification who after all constitute the
preponderant majority more in accord with the spirit and
philosophy of the constitution that political power is inherent in
the people collectively? As clearly expounded by Justice
Makasiar, in his opinion, in all the cases cited where the
Courts held that the submission of the proposed amendment
was illegal due to the absence of substantial compliance with
the procedure prescribed by the constitution, the procedure
prescribed by the state Constitution, is so detailed, that
specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of
election and other definite standards, from which the court
could safely ascertain whether or not the submission was in
accordance with the Constitution. Thus the case of In re
McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the
provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the
Constitution may be amended or revised.2 This is not true with
our Constitution. In the case of revision there are no
"standards meet for judicial judgment." 3
The framers of our Constitution were free to provide in the
Constitution the method or procedure for the revision or
rewriting of the entire constitution, and if such was their
intention, they could and should have so provided. Precedents
were not wanting. The constitutions of the various states of
the American Union did provide for procedures for
their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify,
revise, amend, remodel or rewrite the 1935 Charter. To
declare what the law is, or has been, is a judicial power, but to
declare what the law shall be is not within Our judicial
competence and authority.
Upon the other hand, since our fundamental charter has not
provided the method or procedure for the revision or complete
change of the Constitution, it is evident that the people have
reserved such power in themselves. They decided to exercise
it not through their legislature, but through a Convention
expressly chosen for that purpose. The Convention as an
independent and sovereign body has drafted not an
amendment but a completely new Constitution, which decided
to submit to the people for approval, not through an act of
Congress, but by means of decrees to be promulgated by the
President. In view of the inability of Congress to act, it was
within the constitutional powers of the President, either as
agent of the Constitutional Convention, or under his authority
under martial law, to promulgate the necessary measures for
the ratification of the proposed new Constitution. The adoption
the new Charter was considered as a necessary basis for all
the reforms set in motion under the new society, to root out
the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in
accepting such procedure and in voting overwhelmingly for
the approval of the new Constitution have, in effect, ratified
the method and procedure taken. "When the people adopt
completely revised or new constitution," said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 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. 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 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 and the new Constitution has become effective,
the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by
presupposing the old basic norm, but by presupposing the
new one. The statutes issued under the old Constitution and
not taken over are no longer regarded as valid, and the
organs authorized by the old Constitution no longer
competent." (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made
manifest by understanding that in the final analysis, what is
assailed is not merely the validity of Proclamation No. 1102 of
the President, which is merely declaratory of the fact of
approval or ratification, but the legitimacy of the government.
It is addressed more to the framework and political character
of this Government which now functions under the new
Charter. It seeks to nullify a Constitution that is
already effective.
In such a situation, We do not see how the question posed by
petitioners could be judicially decided. "Judicial power
presupposes an established government capable of enacting
laws and enforcing their execution, and of appointing judges
to expound and administer them. If it decides at all as a court,
it necessarily affirms the existence and authority of the
government under which it is exercising judicial power."
(Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental
law has been effected through political action, the Court
whose existence is affected by such change is, in the words of
Mr. Melville Fuller Weston, "precluded from passing upon the
fact of change by a logical difficulty which is not to be
surmounted."5 Such change in the organic law relates to the
existence of a prior point in the Court's "chain of title" to its
authority and "does not relate merely to a question of the
horizontal distribution of powers."6 It involves in essence a
matter which "the sovereign has entrusted to the so-called
political departments of government or has reserved to be
settled by its own extra governmental action." 7
The non-judicial character of such a question has been
recognized in American law. "From its earliest opinions this
Court has consistently recognized," said Justice Frankfurter,
in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L.
Ed. 2d. 633, 722, 726, 727), "a class of controversies which
do not lend themselves to judicial standards and judicial
remedies. To classify the various instances as "political
questions" is rather a form of stating this conclusion than
revealing of analysis ... The crux of the matter is that courts
are not 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.)
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, including, but not limited to, number of
members, districts, election and certification of delegates, and
submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary
power to amend or revise the constitution, subject only to
ratification by the people. No call for a constitutional
convention shall limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the
Constitution.
Sec. 1. Constitutional amendments. Any amendment or
amendments to this Constitution may be proposed in the
Senate or Assembly, and if 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 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 such revisions,
alterations or amendments to the constitution as may be
deemed necessary; which shall be submitted to
the electors for their ratification or rejection at an election
appointed by the convention for that purpose, not less than
two nor more than six months after adjournment thereof; and
unless so submitted and approved by a majority of the
electors voting at the election, no such revision, alteration or
amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any
amendment or amendments to this constitution may be
proposed in either house of the general assembly, and if the
same shall be voted for by 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
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 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 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.
Sec. 3. Convention. At the general election to be held in the
year one thousand eight hundred and seventy, and in each
tenth year thereafter, and also at such times as the General
Assembly may, by law, provide, the question, "Shall there be
a Convention to revise the Constitution, and amend the
same?" shall be decided by the electors qualified to vote for
members of the General Assembly; and in case a majority of
the electors so qualified, voting at such election, for and
against such proposition, shall decide in favor of a Convention
for such purpose, the General Assembly, at its next session,
shall provide by law for the election of delegates to such
Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature;
submission to electors. Any amendment or amendments to
this constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the
members elected to each house,
such amendment or amendments shall be entered on the
journals, respectively, with the yeas and nays taken thereon;
and the same shall be submitted to the electors at the next
spring or autumn election thereafter, as the legislature shall
direct; and, if a majority of the electors qualified to vote for
members of the legislature voting thereon shall ratify and
approve such amendment or amendments, the same shall
become part of the constitution.
Sec. 4. General revision; convention; procedure. At the
Biennial Spring Election to be held in the year 1961, in each
sixteenth year thereafter and at such times as may be
provided by law, the question of a General Revision of the
Constitution shall be submitted to the Electors qualified to vote
for members of the Legislature. In case a majority of the
Electors voting on the question shall decide in favor of a
Convention for such purpose, at an Election to be held not
later than four months after the Proposal shall have been
certified as approved, the Electors of each House of
Representatives District as then organized shall Elect One
Delegate for each Electors of each Senatorial District as then
organized shall Elect One Delegate for each State Senator to
which the District is entitled. The Delegates so elected shall
convene at the Capital City on the First Tuesday in October
next succeeding such election, and shall continue their
sessions until the business of the convention shall be
completed. A majority of the delegates elected shall constitute
a quorum for the transaction of business. ... No proposed
constitution or amendment adopted by such convention shall
be submitted to the electors for approval as hereinafter
provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being
entered on the journal. Any proposed constitution or
amendments adopted by such convention shall be submitted
to the qualified electors in the manner provided by such
convention on the first Monday in April following the final
adjournment of the convention; but, in case an interval of at
least 90 days shall not intervene between such final
adjournment and the date of such election. Upon the approval
of such constitution or amendments by a majority of the
qualified electors voting thereon such constitution or
amendments shall take effect on the first day of January
following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the
Constitution.
Sec. 1. Amendments to constitution; majority vote of electors
voting makes amendment valid. Whenever a majority of both
houses of the legislature shall deem it necessary to alter or
amend this Constitution, they may proposed such alterations
or amendments, which proposed amendments shall be
published with the laws which have been passed at the same
session, and said amendments shall be submitted to the
people for their approval or rejection at any general election,
and if it shall appear, in a manner to be provided by law, that a
majority of all the electors voting at said election shall have
voted for and ratified such alterations or amendments, the
same shall be valid to all intents and purposes as a part of this
Constitution. If two or more alterations or amendments shall
be submitted at the same time, it shall be so regulated that the
voters shall vote for or against each separately.
Sec. 2. Revision of constitution. Whenever 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
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 holden within six months
after the passage of such law, and such Convention shall
consist of a number of Members not less that of both
branches of the legislature. In determining what is a majority
of the electors voting such election, reference shall be had to
the highest number of vote cast at such election for the
candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the
duty of the selectmen, and assessors, of the several towns
and places in this state, in warning the first annual meetings
for the choice of senators, after the expiration of seven years
from the adoption of this constitution, as amended, to insert
expressly in the warrant this purpose, among the others for
the meeting, to wit, to take the sense of the qualified voters on
the subject of a revision of the constitution; and, the meeting
being warned accordingly, and not otherwise, the moderator
shall take the sense of the qualified voters present as to the
necessity of a revision; and a return of the number of votes for
and against such necessity, shall be made by the clerk sealed
up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such
return, that the sense of the people of the state has taken, and
that, in the opinion of the majority of the qualified voters in the
state, present and voting at said meetings, there is a
necessity for a revision of the constitution, it shall be the duty
of the general court to call a convention for that purpose,
otherwise the general court shall direct the sense of the
people to be taken, and then proceed in the manner before
mentioned. The delegates to be chosen in the same manner,
and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution,
before the same shall be laid before the towns and
unincorporated places, and approved by two thirds of the
qualified voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional
Amendments.
Sec. 1. Amendments proposed by legislature; a submission to
vote. Any amendment or amendments to this Constitution
may be proposed in either branch of the Legislature, and if the
same shall be agreed to by a majority of all the members
elected to each of the two houses, such proposed amendment
or amendments shall, with yeas and nays thereon, be entered
in their journals and referred by the Secretary of State to the
people for their approval or rejection, at the next regular
general election, except when the Legislature, by a two-thirds
vote of each house, shall order a special election for that
purpose. If a majority of all the electors voting at such election
shall vote in favor of any amendment thereto, it shall thereby
become a part of this Constitution.
If two or more amendments are proposed they shall be
submitted in such manner that electors may vote for or
against them separately.
No proposal for the amendment or alteration of this
Constitution which is submitted to the voters shall embrace
more than one general subject and the voters shall vote
separately for or against each proposal submitted; provided,
however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace
one general subject, each proposed article shall be deemed a
single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or
new constitution. No convention shall be called by the
Legislature to propose alterations, revisions, or amendments
to this Constitution, or to propose a new Constitution, unless
the law providing for such convention shall first be approved
by the people on a referendum vote at a regular or special
election, and any amendments, alterations, revisions, or new
Constitution, proposed by such convention, shall be submitted
to the electors of the State at a general or special election and
be approved by a majority of the electors voting thereon,
before the same shall become effective Provided, That the
question of such proposed convention shall be submitted to
the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or
amendments to this Constitution may be proposed in either
branch of the legislative assembly, and if the same shall be
agreed to by a majority of all the members elected to each of
the two houses, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people
for their approval or rejection, at the next regular election,
except when the legislative assembly shall order a special
election for that purpose. If a majority of the electors voting on
any such amendment shall vote in favor thereof, it shall
thereby become a part of this Constitution. The votes for and
against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition,
shall be canvassed by the secretary of state in the presence
of the governor, and if it shall appear to the governor that the
majority of the votes cast at said election on said amendment,
or amendments, severally, are cast in favor thereof, it shall be
his duty forthwith after such canvass, by his proclamation, to
declare the said amendment, or amendments, severally,
having received said majority of votes to have been adopted
by the people of Oregon as part of the Constitution thereof,
and the same shall be in effect as a part of the Constitution
from the date of such proclamation. When two or more
amendments shall be submitted in the manner aforesaid to
the voters of this state at the same election, they shall be so
submitted that each amendment shall be voted on separately.
No convention shall be called to amend or propose
amendments to this Constitution, or to propose a new
Constitution, unless the law providing for such convention
shall first be approved by the people on a referendum vote at
a regular general election. This article shall not be construed
to impair the right of the people to amend this Constitution by
vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the
power to amend this Constitution granted by section 1, Article
IV, and section 1 of this Article, a revision of all or part of this
Constitution may be proposed in either house of the
Legislative Assembly and, if the proposed revision is agreed
to by at least 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 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.
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.
Footnotes
1 Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra.
2 Chief Justice Concepcion and Justices
Fernando and Teehankee.