NAME NINOTCHKA D.

ABABA
JD1-C
Constitutional Law 1
CASE JOSUE JAVELLANA, petitioner,
TITLE vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY
OF FINANCE, respondents.
DATE March 31, 1973; G.R. No. L-36142
FACTS 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 proposed 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."
ISSUE/S Whether the validity of Proclamation No. 1102 partake of the nature of a
political, and, hence, non-justiciable question.

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.

Whether the people acquiesced in the proposed Constitution.

Whether the Parties are entitled to any relief.

Is the proposed Constitution in force?

RULING 1. The problem is political and "outside the scope of judicial inquiry,"
according to the Court.

2-3. According to Article XV, Section 1 of the 1935 Constitution, which only
allows for one method of ratification, namely "in an election or plebiscite
held in accordance with law and participated in only by qualified and duly
registered voters," the court held that the constitution proposed by the 1971
Constitutional Convention was not validly ratified. However, 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.”

4. Voting to dismiss the petition was six (6) justices. On the basis of their
strong belief that "The effectivity of the said constitution, in the end, 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," Justices Makalintal and Castro
voted in this way.

5. 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; 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 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, there are not enough votes to declare that the new
Constitution is not in force.