Javellana vs. The Executive Secretary 50 SCRA 30 No. L 36142 March 31 1973

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No. L-36283. March 31, 1973.

Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr., and Raul M. Gonzalez, petitioners, vs. The
Honorable Executive Secretary, The Honorable
Secretary of National Defense, The Honorable Budget
Commissioner, and The Honorable Auditor General,
respondents.
No. L-36142. March 31, 1973.

Constitutional law; Doctrine of Separation of powers; Six
Josue Javellana, petitioner, vs. The Executive Secretary, Justices agree that the issue of the validity of Proclamation 1102
The Secretary of National Defense, The Secretary of (announcing the ratification of the proposed Constitution) is a
Justice and The Secretary of Finance, respondents. justiciable question; four Justices differ.—On the first issue
involving the political-question doctrine, Justices Makalintal,
No. L-36164. March 31, 1973.
Zaldivar, Castro, Fernando, Teehankee and Chief Justice
Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel
Concepcion, or six (6) members of the Court, hold that the issue of
Crudo, Antonio U. Miranda, Emilio de Peralta and
the validity of Proclamation 1102 presents a justiciable and non-
Lorenzo M. Tañada, petitioners, vs. The Executive
justiciable question. Justices Makalintal and Castro did not vote
Secretary, The Secretary of Finance, The Secretary of
squarely on this question, but, only inferentially, in their
Justice, The Secretary of Land Ref orm, The Secretary of
discussion of the second question. Justice Barredo qualified his
National Defense, The Auditor General, The Budget
vote, stating that “inasmuch as it is claimed that there has been
Commissioner, The Chairman of Presidential Commission
approval by the people, the Court may inquire into the question of
on Reorgan ization, The Treasurer of the Philippines, The
whether or not there has actually been such an approval, and, in
Commission on Elections and The Commissioner of Civil
the affirmative, the Court should keep its hands-off out of respect
Service, respondents.
to the people’s will, but, in the negative, the Court may determine
No. L-36165. March 31, 1973. from both factual and legal angles whether or not Article XV of
Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, the 1935 Constitution has been complied with.” Justices
Salvador H. Laurel, Ramon V. Mitra, Jr. and Eva Makasiar, Antonio and Esguerra, or three (3) members of the
Estrada-Kalaw, petitioners, vs. Alejandro Melchor, in Court hold that the issue is political and “beyond the ambit of
his capacity as Executive Secretary; Juan Ponce Enrile, judicial inquiry.”
in his capacity as Secretary of National Defense; Same; Amendments; Six Justices agree that the Constitution
General Romeo Espino, in his capacity as Chief of Staff of proposed by the 1971 Constitutional Convention has not been
the Armed Forces of the Philippines; Constancio E. ratified validly conformably to the applicable constitutional and
Castañeda, in his capacity as Secretary of General statutory provisions; one Justice qualifies his vote while the three
Services; Senator Gil J. Puyat, in his capacity as others dissent.—On the second question of validity of the
President of the Senate; and Senator Jose Roy, in his ratification, Justices Makalintal, Zaldivar, Castro, Fernando,
capacity as President Pro Tempore of the Senate, Teehankee and Chief Justice Concepcion, or six (6) members of
respondents. the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance
No. L-36236. March 31, 1973. with Article XV, section 1 of the 1935 Constitution, which
Eddie B. Monteclaro, [personally and in his capacity as provides only one way for ratification, i.e., “in an election or
President of the National Press Club of the Philippines], plebiscite held in accordance with law and participated in only by
petitioner, vs. The Executive Secretary, The Secretary qualified and duly registered voters.”
of Public Information, The Auditor General, The Budget
Commissioner & The Nation- 32
31
32 SUPREME COURT REPORTS ANNOTATED
al Treasurer, respondents. Javellana vs. The Executive Secretary
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Constitutional law; Amendments; Four Justices hold that the

new Constitution of 1973 is in force; four Justices did not vote on
the question; while the remaining two Justices voted that the
Justice Barredo qualified his vote while Justices Makasiar,
proposed
Antonio and Esguerra, or three (3) members of the Court hold
that under their view there has been in effect substantial
33
compliance with the constitutional requirements for valid
ratification.
Same; Same; Four Justices hold that the proposed VOL. 50, MARCH 31, 1973 33
Constitution has been acquiesced in by the people; two Justices Javellana vs. The Executive Secretary
hold that the people have not expressed themselves; one Justice
thinks the doctrine of “Constitution by acquiescence” inapplicable;
while the three other justices agree that they lack the knowledge or Constitution is not in force.—On the fifth question of whether the
competence to make a determination.—On the third question of new Constitution of 1973 is in force: Justices Barredo, Makasiar,
acquiescence by the Filipino people in the aforementioned Antonio and Esguerra hold that it is in force by virtue of the
proposed Constitution, no majority vote has been reached by the people’s acceptance thereof; Justices Makalintal, Castro,
Court. Fernando and Teehankee cast no vote thereon on the premise
Four (4) of its members, namely, Justices Barredo, Makasiar, stated in their votes on the third question that they could not
Antonio and Esguerra hold that “the people have already accepted state with judicial certainty whether the people have accepted or
the 1973 Constitution.” Two (2) members of the Court, namely, not accepted the Constitution; and Justice Zaldivar and Chief
Justice Zaldivar and Chief Justice Concepcion hold that there can Justice Concepcion voted that the Constitution proposed by the
be no free expression, and there has even been no expression, by 1971 Constitutional Convention is not in force; with the result
the people qualified to vote all over the Philippines, of their that there are not enough votes to declare that the new
acceptance or repudiation of the proposed Constitution under Constitution is not in force.
Martial Law. Justice Fernando thinks that the doctrine of
Concepcion, C.J., dissenting:
“Constitution by acquiescence” cannot be applied at this time
Justices Makalintal and Castro are joined by Justice Teehankee
Constitutional law; Courts; Only a majority of all the
in their statement that “Under a regime of martial law, with the
members of the Supreme Court is required to annul an executive
free expression of opinions through the usual media vehicles
proclamation.—There is nothing either in the Constitution or in
restricted, (they) have no means of knowing, to the point of
the Judiciary Act requiring the vote of eight Justices to nullify a
judicial certainty, whether the people have accepted the
rule or regulation or an executive order issued by the President. It
Constitution.”
is very significant that in the previous drafts of section 10, Article
Remedial law; Certiorari; Six Justices voted to dismiss the VIII of the Constitution, “executive order” and “regulation” were
petitions while the four others voted to give them due course.—On included among those that required for their nullification the vote
the fourth question of relief, six (6) members of the Court, namely, of two thirds of all the members of the Court. But “executive
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and order” and “regulation” were later deleted from the final draft
Esguerra voted to dismiss the petition. Justices Makalintal and (Aruego, The Framing of the Philippine Constitution, Vol. 1, pp.
Castro so voted on the strength of their view that “the effectivity 495, 496), and thus a mere majority of six members of this Court is
of the said Constitution, in the final analysis, is the basic and enough to nullify them. x x x An executive proclamation has no
ultimate question posed by these cases to resolve which more than “the force of an executive order,” so that, for the
considerations other than judicial, and therefore beyond the Supreme Court to declare such proclamation unconstitutional,
competence of this Court, are relevant and unavoidable.” Four (4) under the 1935 Constitution, the same number of votes needed to
members of the Court, namely, Justices Zaldivar, Fernando, invalidate an executive order, rule or regulation — namely, six (6)
Teehankee and Chief Justice Concepcion voted to deny votes — would suffice.
respondents’ motion to dismiss and to give due course to the
Same; Same; The question of the effectivity of the new
petitions.
Constitution should be determined by applying the provisions of
the former Constitution.—As regards the applicability of the

provisions of the proposed new Constitution, approved by the courts of justice under the Presidential form of government
1971 Constitutional Convention, in the determination of the adopted in our 1935 Constitution, and the system of checks and
question whether or not it is now in force, it is obvious that such balances, one of its basic predicates. As a consequence we have
question depends upon whether or not the said new Constitution neither the authority nor the discretion to decline passing upon
has been ratified in accordance with the requirements of the 1935 said issue, but are under the ineluctable obligation — made
Constitution, upon the authority of which said Constitutional particularly more exacting and peremptory by our oath, as
Convention was called and approved the proposed Constitution. It members of the highest Court of the land, to support and defend
is well settled that the matter of ratification of an amendment to the Constitution — to settle it.
the Constitution should be settled applying the provisions of the Same; Amendments; Elections; The right to vote is conferred
Constitution in force at the time of the alleged ratification of the by the Constitution and the same may not be increased or
old diminished.— Article V of the Constitution was meant to be and
is a grant or conferment of a right to persons possessing the
34
qualifications and none of the disqualifications therein mentioned,
which in turn, constitute a limitation of or restriction to said
34 SUPREME COURT REPORTS ANNOTATED right,
Javellana vs. The Executive Secretary 35
Constitution. VOL. 50, MARCH 31, 1973 35

Same; Doctrine of Separation of Powers; The validity of Javellana vs. The Executive Secretary
Proclamation 1102 does not partake of the nature of a political,
and, hence, nonjusticiable question.—Referring to the issue on
whether the new Constitution proposed by the 1971 and cannot accordingly, be dispensed with, except by
Constitutional Convention has been ratified in accordance with constitutional amendment. Obviously, every such constitutional
the provisions of Article XV of the 1935 Constitution is a political grant or conferment of right is necessarily a negation of the
question or not, I do not hesitate to state that the answer must be authority of Congress or of any other branch of the government to
in the negative. Indeed, such is the position taken by this Court, deny said right to the subject of the grant — and, in this sense,
in an endless line of decisions, too long to leave any room for only, may the same partake of the nature of a guarantee. But, this
possible doubt that said issue is inherently and essentially does not imply, not even remotely, that the Fundamental Law
justiciable. Such, also has been the consistent position of the allows Congress or anybody else to vest in those lacking the
courts of the United States of America, whose decisions have a qualifications and having the disqualifications mentioned in the
persuasive effect in this jurisdiction, our constitutional system in Constitution the right of suffrage.
the 1935 Constitution being patterned after that of the United Same; Same; Same; The votes of persons less than 21 years of
States. Besides, no plausible reason has, to my mind, been age renders the proceedings in the Citizens assemblies void.—It is
advanced to warrant a departure from said position, consistently thus clear that the proceedings held in such Citizens’ Assemblies
with the form of government established under said Constitution. were fundamentally irregular, in that persons lacking the
Same; Same; The issue of whether the exercise of a qualifications prescribed in section 1 of Art. V of the Constitution
Constitutional power has met its conditions is justiciable.—When were allowed to vote in said assemblies. And, since there is no
the grant of power is qualified, conditional or subject to means by which the invalid votes of those less than 21 years of
limitations, the issue on whether or not the prescribed age can be separated or segregated from those of the qualified
qualifications or conditions have been met, or the limitations voters, the proceedings in the Citizens’ Assemblies must be
respected, is justiciable or non-political, the crux of the problem considered null and void.
being one of legality or validity of the contested act, not its
Same; Same; Same; Viva voce voting for the ratification of the
wisdom. Otherwise, said qualifications, conditions or limitations
Constitution is void.—Article XV envisages — with the term
— particularly those prescribed or imposed by the Constitution —
“votes cast” — choices made on ballots — not orally or by raising
would be set at naught. What is more, the judicial inquiry into
hands — by the persons taking part in plebiscites. This is but
such issue and the settlement thereof are the main functions of
natural and logical, for, since the early years of the American Same; Same; Proclamation 1102 is not an evidence of
Regime, we had adopted the Australian Ballot System, with its ratification.—Inasmuch as Art. X of the 1935 Constitution places
major characteristics, namely, uniform official ballots prepared under “exclusive” charge of the Commission on Elections, “the
and furnished by the Government and secrecy in the voting, with enforcement and administration of all laws relative to the conduct
the advantage of keeping records that permit judicial inquiry, of election,” independently of the Executive, and there is not even a
when necessary, into the accuracy of the election returns. And the certification by the Commission in support of the alleged results of
1935 Constitution has been so consistently interpreted in all the citizens’ assemblies relied upon in Proclamation No. 1102 —
plebiscites for the ratification or rejection of proposed apart from the fact that on January 17, 1973 neither the alleged
amendments thereto, from 1935 to 1967. Hence the viva voce president of the Federation of Provincial or City Barangays nor
voting in the Citizens’ Assemblies was and is null and void ab the Department of Local Governments had certified to the
initio. President the alleged result of the citizens’ assemblies all over the
Same; Same; Commission on Elections; The plebiscite on the Philippines — it follows necessarily that, from a constitutional
Constitution, not having been conducted under the supervision of and legal viewpoint, Proclamation No. 1102 is not even prima
the Comelec is void.—The point is that, such of the Barrio facie evidence of the alleged ratification of the proposed
Assemblies as were held took place without the intervention of Constitution.
the Commission on Elections and without complying with the Same; Same; The citizens assemblies did not adopt the
provisions of the Election Code of 1971 or even of those of proposed Constitution.—Indeed, I can not, in good conscience,
Presidential Decree No. 73. The procedure therein mostly followed declare that the proposed Constitution has been approved or
is such that there is no reasonable means of checking the accuracy adopted by the people in the citizens’ assemblies all over the
of the returns filed by the officers who conducted said plebiscites. Philippines, when it is, to my mind, a matter of judicial
This is another patent violation of knowledge that there have been no such citizens’ assemblies in
many parts of Manila and suburbs, not to say, also, in other parts
36
of the Philippines.
Same; Same; The acts of the executive department under
36 SUPREME COURT REPORTS ANNOTATED martial law cannot be construed as an acquiescence to the
proposed Constitution.—I am not prepared to concede that the
Javellana vs. The Executive Secretary
acts of the officers and offices of the Executive Department, in line
with Proclamation No. 1102, connote a recognition thereof or an
Art. X of the Constitution which can be hardly sanctioned. And,
37
since the provisions of this article form part of the fundamental
scheme set forth in the 1935 Constitution, as amended, to ensure
the “free, orderly, and honest” expression of the people’s will, the VOL. 50, MARCH 31, 1973 37
aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens’ Javellana vs. The Executive Secretary
Assemblies, insofar as the same are claimed to have ratified the
revised Constitution proposed by the 1971 Constitutional
Convention. acquiescence thereto. Whether they recognized the proposed
Constitution or acquiesce thereto or not is something that cannot
Same; Same; The Presidential proclamation of the ratification
legally, much less necessarily or even normally, be deduced from
of the proposed Constitution, when assailed, may be inquired into.
their acts in accordance therewith, because they are bound to
—A declaration to the effect that a given amendment to the
obey and act in conformity with the orders of the President, under
Constitution or revised or new Constitution has been ratified by a
whose “control” they are, pursuant to the 1935 Constitution. They
majority of the votes cast therefor, may be duly assailed in court
have absolutely no other choice, specially in view of Proclamation
and be the object of judicial inquiry, indirect proceedings therefor
No. 1081 placing the Philippines under Martial Law.
— such as the cases at bar — and the issue raised therein may
and should be decided in accordance with the evidence presented. Same; Same; A department of the Government cannot
“recognize” its own acts.—Then again, a given department of the
Government cannot generally be said to have “recognized” its own

acts. Recognition normally connotes the acknowledgment by a the results of a plebiscite on the proposed Constitution, an act
party of the acts of another. Accordingly, when a subordinate which Article X of the 1935 Constitution denies the executive
officer or office of the Government complies with the commands of department of the Government.
a superior officer or office, under whose supervision and control he Remedial law; Certiorari; Due course should be granted to the
or it is, the former merely obeys the latter. Strictly speaking, and petitions there being more than prima facie showing of non-
from a legal and constitutional viewpoint, there is no act of compliance with the Constitution.—In all other respects and with
recognition involved therein. Indeed, the lower officer or office, if regard to the other respondents in said case, as well as in cases L-
he or it acted otherwise, would just be guilty of insubordination. 36142, L-36164, L-36236 and L-36283, my vote is that the
Same; Same; Individual acts of recognition by members of petitions therein should be given due course, there being more
Congress do not constitute congressional recognition.—Individual than prima facie showing that the proposed Constitution has not
acts of recognition by members of our legislature, as well as of been ratified in accordance with Article XV of the 1935
other collegiate bodies under the government, are invalid as acts Constitution, either strictly or substantially, or has been
of said legislature or bodies, unless its members have performed acquiesced in by the people or a majority thereof; that said
said acts in session duly assembled, or unless the law provides proposed Constitution is not in force and effect; and that the 1935
otherwise, and there is no such law in the Philippines. This is a Constitution is still the Fundamental Law of the Land, without
well-established principle of Administrative Law and of the Law prejudice to the submission of said proposed Constitution to the
of Public Officers, and no plausible reason has been adduced to people at a plebiscite for its ratification or rejection m accordance
warrant departure therefrom. with Articles V, X and XV of the 1935 Constitution and the
Same; Same; The compliance by the people with the orders of provisions of the Revised Election Code in force at the time of
the martial law government does not constitute acquiescence to the such plebiscite.
proposed Constitution.—Neither am I prepared to declare that the
Makalintal and Castro, JJ.:
people’s inaction as regards Proclamation No. 1102, and their
compliance with a number of Presidential orders, decrees and/or
Constitutional law; Inquiry as to whether or not the act of the
instructions — some or many of which have admittedly had
Citizens Assemblies as certified and proclaimed by the President
salutary effects — issued subsequently thereto amounts,
was an act of ratification lies within the power of judicial review.
constitutes or attests to a ratification, adoption or approval of said
—Such a finding [a finding that the ratification of the draft
Proclamation No. 1102. The intimidation is there, and inaction or
Constitution by the Citizens Assemblies, as certified by the
obedience of the people, under these conditions, is not necessarily
President m Proclamation No. 1102, was not in accordance with
an act of conformity or acquiescence.
the constitutional and statutory procedure laid down for the
Same; Same; The “enrolled bill” rule does not apply to the acts purpose] is on a matter which is essentially justiciable, that is,
of the President in reference to powers he does not possess.—As within the power of this Court to inquire into. It imports nothing
more than a simple reading and application of the pertinent
38 provisions of the 1935 Constitution of the Election Code and of
other related laws and otiicial acts. No question of wisdom or of
policy is involved.
Same; Procedure of ratification followed not in accordance
Javellana vs. The Executive Secretary with the 1935 Constitution and the related statutes; Reasons.—
There should be no serious dispute as to the fact that the manner
in which
regards the applicability to these cases of the “enrolled bill” rule,
it is well to remember that the same refers to a document certified
39
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 VOL. 50, MARCH 31, 1973 39
and the Secretary of the House of Representatives, concerning
legislative measures approved by the two House of Congress. Javellana vs. The Executive Secretary
Whereas, Proclamation 1102 is an act of the President declaring

the voting was conducted in the Citizens Assemblies, assuming

40
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 40 SUPREME COURT REPORTS ANNOTATED
be considered as the plebiscite contemplated in Section 2 of said
Code and in Article XVII, lection 16, of the draft Constitution Javellana vs. The Executive Secretary
itself, or as the election intended by Congress when it passed
Resolution No. 2 on March 16, 1967 calling a Convention for the
under the 1973 Constitution) touching on the capacity in which
revision of the 1935 Constitution.
the Court is acting in these cases, I hold that we have no
Same; Same; Same.—The Citizens Assemblies were not alternative but to adopt in the present situation the orthodox rule
limited to qualified, let alone registered, voters, but included all that when the validity of an act or law is challenged as being
citizens from the age of fifteen, and regardless of whether or not repugnant to a constitutional mandate, the same is allowed to
they were illiterates, feeble-minded, or ex-convicts — these being have effect until the Supreme Court rules that it is
the classes of persons expressly disqualified from voting by unconstitutional. Stated differently, We have to proceed on the
Section 102 of the Election Code. In short, the constitutional and assumption that the new Constitution is in force and that We are
statutory qualifications were not considered in the determination acting in these present cases as the 15-man Supreme Court
of who should participate. No official ballots were used in the provided for therein. Contrary to counsel’s contention, there is
voting; it was done mostly by acclamation or pen show of hands. here no prejudgment for or against any of the two constitutions.
Secrecy, which is one of the essential features of the election The truth of the matter is simply that in the normal and logical
process, was not therefore observed. No set of rules for counting conduct of governmental activities, it is neither practical nor wise
the votes or of tabulating them and reporting the figures was to defer the course of any action until after the courts have
prescribed or followed. The Commission on Elections, which is the ascertained their legality, not only because if that were to be the
constitutional body charged with the enforcement and rule, the functioning of government would correspondingly be
administration of all laws relative to the conduct of elections, took undesirably hesitative and cumbersome, but more importantly,
no part at all, either by way of supervision or in the assessment of because the courts must at the first instance accord due respect to
the results. the acts of the other departments, as otherwise, the smooth
Same; Matter of whether or not the Constitution has become running of the government would have to depend entirely on the
effective because of popular acquiescence beyond the domain of unanimity of opinions among all its departments, which is hardly
judicial review.—Under a regime of martial law, with the free possible, unless it is assumed that only the judges have the
expression of opinions through the usual media vehicles exclusive prerogative of making and enforcing the law, aside from
restricted, we have no means of knowing, to the point of judicial being its sole interpreter, which is contrary to all norms of
certainty, whether the people have accepted the Constitution. In juridical and political thinking. To my knowledge, there is yet no
any event, we do not find the issue decisive insofar as our vote in country in the world that has recognized judicial supremacy as its
these cases is concerned. To interpret the Constitution — that is basic governmental principle, no matter how desirable we might
judicial. That the Constitution should be deemed in effect because believe the idea to be. ... It is undeniable that the whole
of popular acquiescence — that is political, and therefore beyond government, including the provincial, municipal and barrio units
the domain of judicial review. and not excluding the lower courts up to the Court of Appeals, is
operating under the 1973 Constitution. Almost daily, presidential
Barredo, J.: orders and decrees of the most legislative character affecting
practically every aspect of governmental and private activity as
Constitutional law; Validity of a law presumed until otherwise well as the relations between the government and the citizenry
declared unconstitutional.—With full consciousness of my are pouring put from Malacafiang under the authority of said
limitations but compelled by my sense of duty and propriety to Constitution. ... Moreover, what makes the premise of
straighten out this grave issue (on whether the Court is acting as presumptive validity preferable and] imperative, is that We are
an 11-man Court under the 1935 Constitution or as a 15-man dealing here with a whole Constitution that radically modifies or
Court alters not only the form of our government from presidential to
parliamentary but also other constitutionally based institutions
vitally affecting all levels of society.
Same; When Article XV of the 1935 Constitution not complied consultation was that the people wanted greater direct
with.—In my separate opinion in the Plebiscite Cases, I already participation, thru the Citizens Assemblies, in decision-making
made the observation that in view of the lack of solemnity and regarding matters of vital national interest. Thus, looking at
regularity in the voting as well as in the manner of reporting and things more understandingly and realistically, the two questions
canvassing conducted in connection with the referendum, I cannot emphasized by counsel, namely, (1) Do you approve of the New
say that Article XV of the old Constitution has been complied Constitution? and (2) Do you want a plebiscite to be called to
with, ratify the new Constitution? should be considered no longer as
loose consultations but as direct inquiries about the desire of the
41
voters regarding the matters mentioned.
Same; Results of referendum valid.—Let us not forget that
the times are abnormal, and prolonged dialogue and exchange of
VOL. 50, MARCH 31, 1973 41
ideas are not generally possible, nor practical, considering the
Javellana vs. The Executive Secretary need for faster
42
albeit I held that nonetheless, the Constitution of 1973 is already
in force.
Same; Result of referendum is as the President stated.—In my
opinion in those cases, the most important point I took into Javellana vs. The Executive Secretary
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 decisions and more resolute action. After all voting on a whole
facts of general knowledge which I have taken judicial notice of, I new constitution is different from voting on one, two or three
am in no position to deny that the result of the referendum was as specific proposed amendments, the former calls for nothing more
the President had stated. I can believe that the figures referred to than a collective view of all the provisions of the whole charter, for
in the proclamation may not be accurate, but I cannot say in necessarily, one has to take the good together with the bad in it. It
conscience that all of them are manufactured or prefabricated, is rare for anyone to reject a constitution only because of a few
simply because I saw with my own eyes that people did actually specific objectional features, no matter how substantial,
gather and listen to discussions, if brief and inadequate for those considering the ever present possibility that after all it may be
who are not abreast of current events and general occurrences, cured by subsequent amendment. Accordingly, there Was need to
and that they did vote.. . . I am not prepared to discredit entirely indicate to the people the paths open to them in their quest for
the declaration that there was voting and that the majority of the the betterment of their conditions, and as long as it is not shown
votes were in favor of the New Constitution. If in fact there were that those who did not agree to the suggestions in the “comments”
substantially less than 14 million votes of approval, the real were actually compelled to vote against their will, I am not
figure, in my estimate, could still be significant enough and convinced that the existence of said “comments” should make any
legally sufficient to serve as basis for a valid ratification. appreciable difference in the Court’s appraisal of the result of the
referendum.
Same; Referendum through Citizens Assemblies not mere
Same; Referendum not in strict compliance with 1935
consultative.—It is contended, however, that the understanding
Constitution.— At this juncture, I think it is fit to make it clear
was that the referendum among the Citizens Assemblies was to
that I am not trying to show that the result of the referendum
be in the nature of a loose consultation and not an outright
may be considered as sufficient basis for declaring that the New
submission for purposes of ratification. I can see that at the,
Constitution has been ratified in accordance with the amending
outset, when the first set of questions was released, such may
clause of the 1935 Constitution. I reiterate that in point of law, I
have been the idea. It must not be lost sight of, however, that if
find neither strict nor substantial compliance. The foregoing
the newspaper reports are to be believed, and I say this only
discussion is only to counter, if I may, certain impressions
because petitioners would consider the newspapers as the official
regarding the general conditions obtaining during and in relation
gazettes of the administration, the last set of six questions were
to the referendum which could have in one way or another
included precisely because the reaction to the idea of mere
affected the exercise of the freedom of choice and the use of
discretion by the members of the Citizens Assemblies, to the end determination to bring about a massive change of the existing
that as far as the same conditions may be relevant in my order, a meaningful transformation of the old society and a
subsequent discussions of the acceptance by the people of the New responsive reformation of the contemporary institutions and
Constitution they may also be considered. principles.
Same; 1973 Constitution already adopted by the people.—It is 3. The ostensible reaction of the component elements, both
my sincere conviction that the Constitution of 1973 has been collective and individual, of the Congress of the Philippines.
accepted or adopted by the people. And on this premise, my Neither the Senate nor the House of Representatives has been
considered opinion is that the Court may no longer decide these reported to have even made any appreciable effort or attempt to
cases on the basis of purely legal considerations. Factors which convene as they were supposed to do under the 1935 Constitution
are non-legal but nevertheless ponderous and compelling cannot on January 22, 1973 for the regular session.
be ignored, for their relevancy is inherent in the issue itself to be 4. Viewed from the strictly legal angle and in the light of
resolved. judicial methods of ascertainment, I cannot agree with the
Same; Ruling in Tolentino vs. Comelec (U SCRA 702) Solicitor General that in the legal sense, there has been at least
distinguished from case at bar.—It is true that in the opinion I substantial compliance with Article XV of the 1935 Constitution,
had the privilege of penning for the Court in Tolentino vs. but what I can see is that in political sense, the answers to the
Comelec (41 SCRA 702), I made strong and unequivocal referendum questions were not given by the people as legal
pronouncements to the effect that any amendment to the conclusions. I take it that when they answered that by their
Constitution of 1935, to be valid, must appear to have been made significant approval of the New Constitution, they do not consider
in strict conformity with the it necessary to hold a plebiscite, they could not have had in mind
any intent to do what was constitutionally improper. Basically
43 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
VOL. 50, MARCH 31, 1973 43
not to assume that the sovereign people were indulging in a futile
Javellana vs. The Executive Secretary exercise of their supreme
44
requirements of Article XV thereof. What is more, that decision
asserted judicial competence to inquire into the matter of
compliance or noncompliance as a justiciable matter. I still believe 44 SUPREME COURT REPORTS ANNOTATED
in the correctness of those views and I would even add that I Javellana vs. The Executive Secretary
sincerely feel that it reflects the spirit of the said constitutional
provision. Without trying to strain any point, however, I submit
the following considerations in the context of the peculiar political right to choose the fundamental charter by which their
circumstances of the cases now at bar, whicn are entirely different lives, their liberties and their fortunes shall be safeguarded
from those in the backdrop of the Tolentino rulings I have
5. Finally, if any doubt should still linger as to the
referred to:
legitimacy of the New Constitution on legal grounds, the same
1. Consider that in the present case what is involved is not should be dispelled by viewing the situation in the manner
just an amendment of a particular provision of an existing suggested by Counsel Tolentino and by the writer of this opinion
Constitution; here, it is, as I have discussed earlier above, an in his separate opinion, oftweferred to above, in the Plebiscite
entirely new Constitution that is being proposed. This important Cases — that is, as an extraconstitutional exercise by the people,
circumstance makes a great deal of difference. under the leadership of President Marcos, of their inalienable
2. When an entirely new constitution is proposed to supersede right to change their fundamental charter by any means they may
the existing one, we cannot but take into consideration the forces deem appropriate, the moment they are convinced that the
and the circumstances dictating the replacement. From the very existing one is no longer responsive to their fundamental, political
nature of things, the proposal to ordain a new constitution must and social needs nor conducive to the timely attainment of their
be viewed as the most eloquent expression of a people’s resolute national destiny. This is not only the teaching of the American

Declaration of Independence but is indeed, a truth that is self- question before Us is political and not fit for judicial
evident. determination.
Same; Political question explained.—For a political question
Makasiar, J.:
is one entrusted to the people for judgment in their sovereign
capacity (Tanada vs. Cuenco, G.R. No. L-10520, Feb. 28, 1967; 100
Constitutional law; Issue as to the validity of Proclamation
Phil. 1101), or to a co-equal and coordinate branch of the
No. 1102 political and not justiciable; Reasons.—Assuming,
Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez
without conceding, that the procedure for ratification prescribed
Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs.
in Article XV of the 1935 Constitution was not complied with, the
Francisco, G.R. No. 4638, May 8, 1931). A case involves a political
validity of Presidential Proclamation No. 1102 is a political, not a
question when there would be “the impossibility of undertaking
justiciable, issue; for it is inseparably or inextricably linked with
independent resolutions without expressing a lack of respect due
and strikes at, because it is decisive of, the validity of the
to coordinate branches of government,” or when there is “the
ratification and adoption of, as well as acquiescence of the people
potentiality of embarassment from multifarious pronouncements
in, the 1973 Constitution and the legitimacy of the government
by various departments on one question.”
organized and operating thereunder. And being political, it is
beyond the ambit of judicial inquiry, tested by the definition of a Zaldivar, J., dissenting and concurring:
political question enunciated in Tañada, et al. vs. Cuenco, et al.
(103 Phil. 1051). Constitutional law; Meaning of political question.—A political
Same; Acceptance by the people of the 1973 Constitution cures question relates to “those questions which under the Constitution
any infirmity in its submission; Reason.—The legality of the are to be decided by the people in their sovereign capacity or in
submission is no longer relevant; because the ratification, regard to which full discretionary authority has been delegated to
adoption and/or acquiescence by the people cures any infirmity in the legislative, or to the executive, branch of the government.
its submission or any other irregularities therein which are Same; The courts have the power to determine whether the
deemed mandatory before submission as they are considered acts of the Executive are authorized by the Constitution and the
merely directory after such ratification or adoption or laws.—It is a settled doctrine that every officer under a
acquiescence by the people. constitutional government must act according to law and subject
to its restrictions, and every departure therefrom, or disregard
Esguerra, J.:
thereof, must subject him to the restraining and controlling power
of the people, acting through the agency of the judiciary. It must
Constitutional law; Issue as to whether or not Constitution of
be remembered that the people act through the courts, as well as
November 30, 1972 ratified in accordance with the amending
through the executive or the legislature. One department is just
process prescribed by the 1935 Constitution and other related
as representative as the other, and the judiciary is the
statutes highly
department which is charged with the special duty of determining
the limitations which the law places upon all official actions.
45
Same; Courts have power to determine validity of means
adopted to change the Constitution.—It is in the power of this
VOL. 50, MARCH 31, 1973 45 Court, as the ultimate interpreter of the Constitution, to
Javellana vs. The Executive Secretary determine the
46
political and not justiciable.—Certainly, the invalidation of
Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A
by this Court would smack of plain political meddling which is
described by the United States Supreme Court as “entering a Javellana vs. The Executive Secretary
political thicket” in Colgrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to adopt the
proper attitude towards political upheavals and realize that the 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 VOL. 50, MARCH 31, 1973 47
into, and decide on, the question whether or not an amendment to
the Constitution, as in the present cases, has been ratified in
accordance with the requirements prescribed in the Constitution
that was amended. consider the votes in the barangays as expressive of the popular
Same; “Election” contemplated in Article XV of the will and use them as the basis in declaring whether a
Constitution is an election conducted under the election law.—The Constitution is ratified or rejected is to resort to a voting by
election contemplated in said constitutional provision is an demonstrations, which would mean the rule of the crowd, which is
election held in accordance with the provisions of the election law, only one degree higher than the rule by the mob.
where only the qualified and registered voters of the country Same; The fact that a majority voted for the amendment of the
would cast their votes, where official ballots prepared for the Constitution, unless the vote was taken as provided by the
purpose are used, where the voters would prepare their ballots in Constitution, is not sufficient to make a change in that instrument.
secret inside the voting booths in the polling places established in —In the cases now before this Court, the fact that the voting in
the different election precincts throughout the country, where the the citizens assemblies (barangays) is not the election that is
election is conducted by election inspectors duly appointed in provided for in the 1935 Constitution for the ratification of the
accordance with the election law, where the votes are canvassed amendment to the Constitution, the affirmative votes cast in
and reported in a manner provided for in the election law. It was those assemblies cannot be made the basis for declaring the
this kind of election that was held on May 14, 1935, when the ratification of the proposed 1972 Constitution, in spite of the fact
Constitution of 1935 was ratified; on April 30, 1937, when the that it was reported that 14,976,561 members of the citizens
amendment to the Constitution providing for Women’s Suffrage assemblies voted for the rejection, because the votes thus obtained
was ratified; on June 18, 1940, when the 1940 Amendments to the were not in accordance with the provisions of Section 1 of Article
Constitution were ratified; on March 11, 1947 when the Parity XV of the 1935 Constitution of the Philippines. The rule of law
Amendment to the Constitution was ratified; and on November must be upheld.
14, 1967 when the amendments to the Constitution to increase
the number of Members of the House of Representatives and to Same; Voting in the barangays was not freely exercised
allow the Members of Congress to run in the elections for because of the existence of martial law.—One of the valid grounds
Delegates to the Constitutional Convention of 1971 were rejected. against the holding of the plebiscite on January 15, 1973, as
provided in Presidential Decree No. 73, is that there is no freedom
Same; Votes cast in the barangays not the votes contemplated on the part of the people to exercise their right of choice, because
in Section 1 of Article XVof the 1935 Constitution.—It is my view of the existence of martial law in our country. The same ground
that the President of the Philippines cannot by decree order the holds true as regards the voting of the barangays on January 10
ratification of the proposed 1972 Constitution thru a voting in the to 15, 1973. More so, because by General Order No. 20, issued on
barangays and make said result the basis for proclaiming the January 7, 1973, the President of the Philippines ordered ‘that
ratification of the proposed Constitution. It is very clear, to me, the provisions of Section 3 of Presidential Decree No. 73 in so far
that Proclamation 1102 was issued in complete disregard or in as they allow free public discussion of the proposed constitution,
violation, of the provisions of Section 1 of Article XV of the 1935 as well as my order of December 17, 1972 temporarily suspending
Constitution. the effects of Proclamation No. 1081 for the purpose of free and
Same; Same; Manner of voting by the barangays subject to open debate on the proposed constitution, be suspended in the
judicial notice.—But what is more noteworthy is the fact that the meantime.'
voting in the barangays, except in very few instances, was done by Same; Meaning of “people” in the Constitution.—It is not
the raising of hands by the persons indiscriminately gathered to disputed that in a democracy sovereignty resides in the people.
participate in the voting, where even children below 15 years of But the term “people” must be understood in its constitutional
age were included. This is a matter of common observation, or of meaning, and they are “those persons who are permitted by the
common knowledge, which the Court may take judicial notice of. Constitution to exercise the elective franchise.”
To
Same; The term “election” in Article XV of the Constitution
47 should be taken in its historical perspective.—It can safely be said
that when the framers of the 1935 Constitution used the word
“election” in Section 1 of Article XV of the 1935 Constitution they Same; Presidential declaration that government is not a
had no other idea in mind except the elections that were revolutionary government subject to judicial notice.—The Court
periodically may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of our
48
Republic since the declaration of martial law is not a
revolutionary government, and that he has been acting all the
48 SUPREME COURT REPORTS ANNOTATED way in consonance with his powers under the Constitution. The
people of this Republic
49
held in the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the “election” VOL. 50, MARCH 31, 1973 49
mentioned in the Independence Act. It is but logical to expect that
the framers of the 1935 Constitution would provide a mode of
ratifying an. amendment to that Constitution itself.
Same; It cannot be said that the people have accepted the 1978 has reason to be happy because, according to the President, we
Constitution.—What appears to me, however, is that practically it still have a constitutional government.
is only the officials and employees under the executive Same; Congress may still call a plebiscite.—It being my view
department of the Government who have been performing their that the 1935 Constitution is still in force, I believe Congress may
duties apparently in observance of the provisions of the new still convene and pass a law calling for an election at which the
Constitution.... True it is, that 92 members of the House of Constitution proposed by the 1971 Constitutional Convention will
Representatives and 15 members of the Senate, of the Congress of be submitted to the people for their ratification or rejection.
the Philippines had expressed their option to serve in the interim
National Assembly that is provided for in Section 2 of Article XVII Fernando, J., dissenting:
of the proposed Constitution. It must be noted, however, that of
the 15 senators who expressed their option to serve in the interim Constitutional law; When power of judicial review should be
National Assembly only one of them took his oath of office; and of exercised.—In the United States as well as here, the exercise of
the 92 members of the House of Representatives, only 22 took the power of judicial review is conditioned on the necessity that
their oath of office. This is an indication that only a small portion the decision of a case or controversy before it so requires. To
of the members of Congress had manifested their acceptance of repeat, the Justices of the highest tribunal are not, as Justice
the new Constitution. Frankfurter made clear, “architects of policy. They cannot nullify
Same; Acceptance of Constitution is manifested by oath of the policy of others, they are incapable of fashioning their own
office.—It is in the taking of the oath of office where the affiant solutions for social problems.” Nonetheless, as was stressed by
says that he swears to “support and defend the Constitution” that Professors Black, and Murphy, a Supreme Court by the
the acceptance of the Constitution is made manifest. I agree with conclusion it reaches and the decision it renders does not merely
counsel for petitioners in L-36165 (Gerardo Roxas, et al. v. check the coordinate branches, but also by its approval stamps
Alejandro Melchor, et al.) when he said that the members of with legitimacy the action taken. Thus, in affirming constitutional
Congress who opted to serve in the interim National Assembly did supremacy, the political departments could seek the aid of the
so only ex abundante cautela, or by way of a precaution, or judiciary.
making sure, that in the event the new Constitution becomes Same; Same; Whether there has been deference to the
definitely effective and the interim National Assembly is provisions of the Constitution is a judicial question.—With the
convened they can participate in legislative work in their capacity 1935 Constitution containing, as above noted, an explicit article
as duly elected representatives of the people, which otherwise on the subject of amendments, it would follow that the
they could not do if they did not manifest their option to serve, presumption to be indulged in is that the question of whether
and that option had to be made within 30 days from January 17, there has been deference to its terms is for this Court to pass
1973, the date when Proclamation No. 1102 was issued. upon. What is more, the Gonzales, Tolentino and Planas cases
speak uneauivocally to that effect. Nor is it a valid objection to
this conclusion that what was involved in those cases was the Same; Requirements of the Constitution for its amendment
legality of the submission and not ratification, for from the very was not complied with.—There is, of course, the view not offensive
language of the controlling article, the two vital steps are proposal to reason that a sense of the realities should temper the rigidity of
and ratification, which as pointed out in Dillon v. Gloss (256 US devotion to the strict letter of the text to allow deference to its
368) “cannot be treated as unrelated acts, but as succeeding steps spirit to control. With due recognition of its force in constitutional
in a single endeavor.” Once an aspect thereof is viewed as judicial, litigation, if my reading of the events and the process that led to
there would be no justitification for considering the rest as devoid such proclamation, so clearly set forth in the opinion of the Chief
of that character. Justice, is no inacc urate, then it cannot be confidently asserted
Same; The Philippines has a tradition of judicial activism.— that there was such compliance. It would be to rely on conjectural
It cannot be denied that from the well-nigh four decades of assumptions that did founder on the rock of the undisputed facts.
constitutionalism in the Philippines, even discounting an almost Any other conclurion would, for me, require an interpretation that
similar period of time dating from the inception of American borders on the s rained. So it has to be if one does not lose sight of
how the article on amendments is phrased. A word, to paraphrase
50 Justice Holmes may not be crystal, transparent and unchanged,
but it is not, to borrow from Learned Hand, that eminent jurist, a
rubber band either. It would be unwarranted in my view to assert
that the requirements of the 1935 Constitution have been met.
51
sovereignty, there has sprung a tradition of what has been aptly

termed as judicial activism. Such an approach could be traced to VOL. 50, MARCH 31, 1973 51
the valedictory address before the 1935 Constitutional Convention Javellana vs. The Executive Secretary
of Claro M. Recto.
Same; Nature of judicial function.—It suffices to state that
what elicits approval on the part of our people of a judiciary ever
alert to inquire into alleged breaches of the fundamental law is Same; Same.—Even if the assumption be indulged in that
the realization that to do so is merely to do what is expected of it Article XV is not phrased in terms too clear to be misread, so that
and that thereby there is no invasion of spheres appropriately this Court is called upon to give meaning and perspective to what
belonging to the political branches. For it needs to be kept in mind could be considered words of vague generality, pregnant with
always that it can act only when there is a suit with proper uncertainty, still whatever obscurity it possesses is illumined
parties before it, wherein rights appropriate for judicial when the light of the previous legislation is thrown on it. In the
enforcement are sought to be vindicated. Then, too, it does not first Commonwealth Act, submitting to the Filipino people for
approach constitutional questions with dogmatism or apodictic approval or disapproval certain amendments to the original
certainty nor view them from the shining cliffs of perfection. This ordinance appended to the 1935 Constitution, it was made clear
is not to say that it is satisfied with an empiricism untroubled by that the election for such purpose was to “be conducted in
the search for jural consistency and rational coherence. A balance conformity with the provisions of the Election Code insofar as the
has to be struck. So juridical realism requires. Once allowance is same may be applicable.” Then came the statute, calling for the
made that for all its care and circumspection this Court is plebiscite on the three 1940 amendments providing for a
manned by human beings fettered by fallibility, but nonetheless bicameral Congress or a Senate and a House of Representatives to
earnestly and sincerely striving to do right, the public acceptance take the place of a unicameral National Assembly, reducing the
of its vigorous pursuit of the task of assuring that the term of the President to four years but allowing this re-election
Constitution be obeyed is easy to understand. It has not in the with the limitation that he cannot serve for more than eight
past shirked its responsibility to ascertain whether there has been consecutive years, and creating an independent Commission on
compliance with and fidelity to the constitutional requirements. It Elections. Again it was expressly provided that the election “shall
should not start now. It should continue to exercise its be conducted in conformity with the provisions of the Election
jurisdiction, even in the face of a plausible but not sufficiently Code insofar as the same may be applicable.” The approval of the
persuasive insistence that the matter before it is political. present parity amendment was by virtue of a Republic Act which
specifically made applicable the then Election Code. There is a a case before this Court is not novel. That was how it was done in
similar provision in the legislation which in contemplation of the the Emergency Powers Act controversy. Once compliance is had
1971 Constitutional Convention provided for increase of the with the requirements of Article XV of the 1935 Constitution, to
membership of the House of Representatives, to a maximum of assure that the coming force of the revised Charter is free from
one hundred eighty, and the eligibility of senators and any taint of infirmity, then all doubts are set at rest.
representatives to become members of such constitutional Same; How the case at bar should be viewed.—For some, to so
convention without forfeiting their seats. Thus, the consistent view the question before us is to be caught in a web of unreality,
course of interpretation followed by the legislative branch is most to cherish illusions that cannot stand the test of actuality. What is
persuasive, if not controlling. The restraint thus imposed would more, it may give the impression of reliance on what may, for the
set limits to the Presidential action taken, even on the practical man of affairs, be no more than gossamer distinctions
assumption that either as an agent of the Constitutional and sterile refinements unrelated to events. That may be so, but I
Convention or under his martial law prerogatives, he was not find it impossible to transcend what for me are the implications of
devoid of power to specify the mode of ratification. On two vital traditional constitutionalism. This is not to assert that an
points, who can vote and how they register their will, Article XV occupant of the bench is bound to apply with undeviating rigidity
had been given a definitive construction. doctrines which may have served their day. He could at times
Same; Petitions in the case at bar should not be dismissed.— even look upon them as mere scribblings in the sands to be
There is for me an obstacle to the petitions being dismissed for washed away by the advancing tides of the present. The
such ascertainment of popular will did take place during a period introduction of novel concepts may be Cirried only so far though.
of martial law. It would have been different had there been that As Cardozo put the matter: “The judge, even when he is free, is
freedom of debate with the least interference, thus allowing a free still not wholly free. He is not to innovate at pleasure. He is not a
market of ideas. If it were thus, it could be truly said that there knight-errant, roaming at will in pursuit of his own ideal of
was no barrier to liberty of choice. It would a clear-cut decision beauty or of goodness. He is to draw his inspiration from
either way. One could be certain as to the fact of the acceptance of consecrated principles. He is not to yield to spasr iodic sentiment,
the new or of adherence to the old. This is not to deny to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy,
52 disciplined by system, and subordinated to ‘the primordial
necessity of order in the social life.’ Wide enough in all conscience
is the field of discretion that remains.”
53
VOL. 50, MARCH 31, 1973 53

that votes are cast by individuals with their personal concerns
uppermost in mind, worried about their immediate needs and Javellana vs. The Executive Secretary
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
Teehankee, J., dissenting:
be their views, it is entitled to respect. It is difficult for me,
however, at this stage to feel secure in the conviction that they did
Constitutional law; Issue as to the validity of Presidential
utilize the occasion afforded to give expression to what was really
Proclamation No. 1102 presents a justiciable question and
in their hearts. This is not to imply that such doubt could not be
constitutes a proper subject of judicial review; Reasons.—As was to
dispelled by evidence to the contrary. If the petitions be
be restated by Justice Jose P. Laurel a century and a third later
dismissed, however, then such opportunity is forever lost.
in the 1936 landmark case of Angara vs. Electoral Commission,
Same; A decision in favor of the petitioners need not be “(T)he Constitution sets forth in no uncertain language the
immediately executory.—It might be asked though, suppose the restrictions and limitations upon governmental powers and
petitioners should prevail? What then? Even so, the decision of agencies. If these restrictions and limitations are transcended it
this Court need not be executory right away. Such a disposition of would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along The facts are stated in the resolution of the Court.
constitutional channels, for then the distribution of powers would Ramon A. Gonzales for petitioner Josue Javellana.
be mere verbiage, the bill of rights mere expressions of sentiment, Lorenzo M. Tañada & Associates for petitioners Vidal
and the principles of good government mere political apothegms. Tan, et al.
Certainly, the limitations and restrictions embodied in our Tañada, Salonga, Ordonez, Rodrigo, Sanidad, Roxas.
Constitution are real as they should be in any living Gonzales and Arroyo for petitioners Gerardo Roxas, et al.
Constitution.” Joker P. Arroyo and Rogelio B. Padilla for petitioner
Same; Same; Same.—Justice Laurel pointed out that in Eddie Monteclaro.
contrast to the United States Constitution, the Philippine Raul M. Gonzales & Associates for petitioners Napoleon
Constitution as “a definition of the powers of government” placed V. Dilag, et al.
upon the judiciary the great burden of “determining the nature, Arturo M. Tolentino for respondents Gil J. Puyat and
scope and extent of such powers” and stressed that “when the Jose Roy.
judiciary mediates to allocate constitutional boundaries, it does Solicitor General Estelito P. Mendoza, Solicitor Vicente
not assert any superiority over the other departments ... but only V. Mendoza and Solicitor Reynato S. Puno for other re-
asserts the solemn and sacred obligation entrusted to it by the spondents.
Constitution to determine conflicting claims of authority under

the Constitution and to establish for the parties in an actual
RESOLUTION
controversy the rights which the instrument secures and

guarantees to them.”
CONCEPCION, C.J.:
Same; No valid ratification of Constitution where ratification The above-entitled five (5) cases are a sequel of cases
not in accordance with mandatory requirements of Article XV of G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-
the 1935 Constitution.—Since it appears on the face of 35948, L-35953, L-35961, L-35965 and L-35979, decided on
Proclamation 1102 that the mandatory requirements of the January 22, 1973, to which We will hereafter refer
constitutional articles have not been complied with and that no collectively as the plebiscite cases.
election or plebiscite for ratification as therein provided as well as Background of the Plebiscite Cases.
in section 16 of Article XVII of the proposed Constitution itself The factual setting thereof is set forth in the decision
has been called or held, there cannot be said to have been a valid therein rendered, from which We quote:
ratification.
55
Same; Same; Necessity of strict adherence to constitutional
requirements; Reasons for.— Sound constitutional policy and the
sheer necessity of adequate safeguards as ordained by the VOL. 50, MARCH 31, 1973 55
Constitution and implementing statutes to ascertain and record Javellana vs. The Executive Secretary
the will of the people in free, orderly and honest elections
supervised by

54 “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
Javellana vs. The Executive Secretary 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
the Comelec make it imperative that there be strict adherence to was held on November 10, 1970, and the 1971 Constitutional
the constitutional requirements laid down for the process of Convention began to perform its functions on June 1, 1971. While
amending in toto or in part the supreme law of the land. the Convention was in session on September 21, 1972, the
President issued Proclamation No. 1081 placing the entire
ORIGINAL PETITIONS in the Supreme Court. Mandamus Philippines under Martial Law. On November 29, 1972, the
and prohibition.
Convention approved its Proposed Constitution of the Republic of by Raul M. Gonzales against the Commission on Elections, the
the Philippines. The next day, November 30, 1972, the President Budget Commissioner, the National Treasurer and the Auditor
of the Philippines issued Presidential Decree No. 73, “submitting General (Case G.R. No. L-35965); and on December 16, 1972, by
to the Filipino people for ratification or rejection the Constitution Ernesto C. Hidalgo against the Commission on Elections, the
of the Republic of the Philippines proposed by the 1971 Secretary of Education, the National Treasurer and the Auditor
Constitutional Convention, and appropriating funds therefor,” as General (Case G.R. No. L-35979).
well as setting the plebiscite for said ratification or rejection of the “In all these cases, except the last (G.R. No. L-35979), the
Proposed Constitution on January 15, 1973. respondents were required to file their answers ‘not later than
“Soon after, or on December 7, 1972, Charito Planas filed, with 12:00 (o’clock) noon of Saturday, December 16, 1972.’ Said cases
this Court, Case G.R. No. L-35925, against the Commission on were, also, set for hearing and partly heard on Monday, December
Elections, the Treasurer of the Philippines and the Auditor 18, 1972, at 9:30 a.m. The hearing was continued on December 19,
General, to enjoin said ‘respondents or their agents from 1972. By agreement of the parties, the aforementioned last case
implementing Presidential Decree No. 73, in any manner, until — G.R. No. L-35979 — was, also, heard, jointly with the others,
further orders of the Court,’ upon the grounds, inter alia, that on December 19, 1972. At the conclusion of the hearing, on that
said Presidential Decree ‘has no force and effect as law because date, the parties in all of the aforementioned cases were given a
the calling x x x of such plebiscite, the setting of guidelines for the short period of time within which ‘to submit their notes on the
conduct of the same, the prescription of the ballots to be used and points they desire to stress.’ Said notes were filed on different
the question to be answered by the voters, and the appropriation dates, between December 21, 1972, and January 4, 1973.
of public funds for the purpose, are, by the Constitution, lodged “Meanwhile, or on December 17, 1972, the President had
exclusively in Congress x x x,’ and ‘there is no proper submission issued an order temporarily suspending the effects of
to the people of said Proposed Constitution set for January 15, Proclamation No. 1081, for the purpose of free and open debate on
1973, there being no freedom of speech, press and assembly, and the Proposed Constitution. On December 23, the President
there being no sufficient time to inform the people of the contents announced the postponement of the plebiscite for the ratification
thereof.’ or rejection of the Proposed Constitution. No formal action to this
“Substantially identical actions were filed, on December 8, effect was taken until January 7, 1973, when General Order No.
1972, by Pablo C. Sanidad against the Commission on Elections 20 was issued, directing ‘that the plebiscite scheduled to be held
(Case G.R. No. L- 35929) on December 11, 1972, by Gerardo on January 15, 1978, be postponed until further notice.’ Said
Roxas, et al., against the Commission on Elections, the Director of General Order No. 20, moreover, ‘suspended in the meantime’ the
Printing, the National Treasurer and the Auditor General (Case ‘order of December 17, 1972, temporarily suspending the effects of
G.R. L-35940), by Eddie B. Monteclaro against the Commission on Proclamation
Elections and the Treasurer of the
57
56
VOL. 50, MARCH 31, 1973 57

56 SUPREME COURT REPORTS ANNOTATED Javellana vs. The Executive Secretary
No. 1081 for purposes of free and open debate on the proposed
Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et Constitution.’
al. against the National Treasurer and the Commission on “In view of these events relative to the postponement of the
Elections (Case G.R. No. L-35942); on December 12, 1972, by aforementioned plebiscite, the Court deemed it fit to refrain, for
Vidal Tan, et al., against the Commission on Elections, the the time being, from deciding the aforementioned cases, for
Treasurer of the Philippines, the Auditor General and the neither the date nor the conditions under which said plebiscite
Director of Printing (Case G.R. No. L-35948) and by Jose W. would be held were known or announced officially. Then, again,
Diokno and Benigno S. Aquino against the Commission on Congress was, pursuant to the 1935 Constitution, scheduled to
Elections (Case G.R. No. L-35953); on December 14, 1972, by meet in regular session on January 22, 1973, and since the main
Jacinto Jimenez against the Commission on Elections, the objection to Presidential Decree No. 73 was that the President
Auditor General, the Treasurer of the Philippines and the does not have the legislative authority to call a plebiscite and
Director of the Bureau of Printing (Case G.R. No. L-35961), and appropriate funds therefor, which Congress unquestionably could

do, particularly in view of the formal postponement of the “[2] Do you like the reforms under martial law?
plebiscite by the President — reportedly after consultation with, “[3] Do you like Congress again to hold sessions?
among others, the leaders of Congress and the Commission on “[4] Do you like the plebiscite to be held later?
Elections — the Court deemed it more imperative to defer its final “[5] Do you like the way President Marcos running the
action on these cases. affairs of the government? [Bulletin Today, January 10,
“In the afternoon of January 12, 1973, the petitioners in Case 1973; emphasis an additional question.]
G.R. No. L-35948 filed an ‘urgent motion,’ praying that said case ‘11. That on January 11, 1973, it was reported that six (6) more
be decided ‘as soon as possible, preferably not later than January questions would be submitted to the so-called Citizens
15, 1973.’ It was alleged in said motion, inter alia: Assemblies: —
‘6. That the President subsequently announced the issuance of “[1] Do you approve of the citizens assemblies as the base
Presidential Decree No. 86 organizing the so-called Citizens of popular government to decide issues of national
Assemblies, to be consulted on certain public questions [Bulletin interests?
Today, January 1, 1973];
59
‘7. That thereafter it was later announced that “the Assemblies
will be asked if they favor or oppose —
“[1] The New Society; VOL. 50, MARCH 31, 1973 59
“[2] Reforms instituted under Martial Law; Javellana vs. The Executive Secretary
“[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 “[2] Do you approve of the new Constitution?
original date of January 15 are February 19 and March 5); “[3] Do you want a plebiscite to be called to ratify the
“[4] The opening of the regular session slated on January new Constitution?
22 in accordance with the existing Constitution despite “[4] Do you want the elections to be held in November,
Martial Law.” [Bulletin Today, January 3, 1973.] 1973 in accordance with the provisions of the 1935
Constitution?
58
“[5] If the elections would not be held, when do you want
the next elections to be called?
58 SUPREME COURT REPORTS ANNOTATED “[6] Do you want martial law to continue? [Bulletin
Javellana vs. The Executive Secretary 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
‘8. That it was later reported that the following are to be the or identical to Annex “A” hereof;
forms of the questions to be asked to the Citizens Assemblies: — ‘13. That attached to page 1 of Annex “A” is another page,
“[1] Do you approve of the New Society? which we marked as Annex “A-1,” and which reads: —
“[2] Do you approve of the reform measures under “COMMENTS ON
martial law? QUESTION No. 1
“[3] Do you think that Congress should meet again in In order to broaden the base of citizens’ participation in
regular session? government.
“[4] How soon would you like the plebiscite on the new QUESTION No. 2
Constitution to be held? [Bulletin Today, January 5, 1973]. But we do not want the Ad Interim Assembly to be
‘9. That the voting by the so-called Citizens Assemblies was convoked. Or if it is to be convened at all, it should not be
announced to take place during the period from January 10 to done so until after at least seven (7) years from the approval
January 15, 1973; of the New Constitution by the Citizens Assemblies.
‘10. That on January 10, 1973, it was reported that on more QUESTION No. 3
question would be added to the four (4) question previously The vote of the Citizens Assemblies should already be
announced, and that the forms of the question would be as considered the plebiscite on the New Constitution.
follows: — If the Citizens Assemblies approve of the New Constitution,
“[1] Do you like the New Society? then the new Constitution should be deemed ratified.

60 in relation to the question following it: —

“Do you still want a plebiscite to be called to ratify the
60 SUPREME COURT REPORTS ANNOTATED new Constitution?” —
Javellana vs. The Executive Secretary 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;
QUESTION No. 4 ‘16. That petitioners have reason to fear, and therefore allege,
We are sick and tired of too frequent elections. We are fed that if an affirmative answer to the two questions just referred to
up with politics, of so many debates and so much expenses. will be reported then this Honorable Court and the entire nation
QUESTION No. 5 will be confronted with a fait accompli which has been attained in
Probably a period of at least seven (7) years moratorium on a highly unconstitutional and undemocratic manner;
elections will be enough for stability to be established in the ‘17. That the fait accompli would consist in the supposed
country, for reforms to take root and normalcy to return. expression of the people approving the proposed Constitution;
QUESTION No. 6 ‘18. That, if such event would happen, then the case before this
We want President Marcos to continue with Martial Law. Honorable Court could, to all intents and purposes, become moot
We want him to exercise his powers with more authority. because, petitioners fear, and they therefore allege, that on the
We want him to be strong and firm so that he can basis of such supposed expression of the will of the people through
accomplish all his reform programs and establish normalcy the Citizens Assemblies, it would be announced that the proposed
in the country. If all other measures fail, we want President Constitution, with all its defects, both congenital and otherwise,
Marcos to declare a revolutionary government along the has been ratified;
lines of the new Constitution without the ad interim ‘19. That, in such a situation the Philippines will be facing a
Assembly.” real crisis and there is likelihood of confusion if not chaos, because
‘Attention is respectfully invited to the comments on then, the people and their officials will not know which
“Question No. 3,” which reads: — Constitution is in force.
“QUESTION No. 3 ‘20. That the crisis mentioned above can only be avoided if this
The vote of the Citizens Assemblies should be considered Honorable Court will immediately decide and announce its
the plebiscite on the New Constitution. decision on the present petition;
If the Citizens Assemblies approve of the New Constitution, ‘21. That with the withdrawal by the President of the limited
then the new Constitution should be deemed ratified. freedom of discussion on the proposed Constitution which was
This, we are afraid, and therefore allege, is pregnant with given to the people pursuant to Sec. 3 of Presidential Decree No.
ominous possibilities. 73, the opposition of respondents to petitioners’
‘14. That, in the meantime, speaking on television and over the
62
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 62 SUPREME COURT REPORTS ANNOTATED
orders and decrees issued thereunder would thenceforth strictly Javellana vs. The Executive Secretary
be enforced [Daily Express, January 8, 1973];
prayer at the plebiscite be prohibited has now collapsed and that
61
a free plebiscite can no longer be held.’
“At about the same time, a similar prayer was made in a
VOL. 50, MARCH 31, 1973 61 ‘manifestation’ filed by the petitioners in L-35949, ‘Gerardo
Javellana vs. The Executive Secretary 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
‘15. That petitioners have reason to fear, and therefore state, Court issued a resolution requiring the respondents in said three
that the question added in the last list of questions to be asked to (3) cases to comment on said ‘urgent motion’ and ‘manifestation,’
the Citizens Assemblies, namely: — ‘not later than Tuesday noon, January 16, 1973.’ Prior thereto, or
“Do you approve of the New Constitution?” — on January 15, 1973, shortly before noon, the petitioners in said

Case G.R. No. L-35948 riled a ‘supplemental motion for issuance elections at which only qualified and duly registered voters
of restraining order and inclusion of additional respondents,’ are permitted to vote, whereas, the so called Citizens’
praying — Assemblies were participated in by persons 15 years of age
‘x x x that a restraining order be issued enjoining and and older, regardless of qualifications or lack thereof, as
restraining respondent Commission on Elections, as well as prescribed in the Election Code;
the Department of Local Governments and its head, [b] Elections or plebiscites for the ratification of
Secretary Jose Roño; the Department of Agrarian Reforms constitutional amendments contemplated in Article XV of
and its head, Secretary Conrado Estrella; the National the Constitution have provisions for the secrecy of choice
Ratification Coordinating Committee and its Chairman, and of vote, which is one of the safeguards of freedom of
Guillermo de Vega; their deputies, subordinates and action, but votes in the Citizens’ Assemblies were open and
substitutes, and all other officials and persons who may be were cast by raising hands;
assigned such task, from collecting, certifying, and [c] The Election Code makes ample provisions for free,
announcing and reporting to the President or other officials orderly and honest elections, and such provisions are a
concerned, the so-called Citizens’ Assemblies referendum minimum requirement for elections or plebiscites for the
results allegedly obtained when they were supposed to have ratification of constitutional amendments, but there were
met during the period comprised between January 10 and no similar provisions to guide and regulate proceedings of
January 15, 1973, on the two questions quoted in paragraph the so called Citizens’ Assemblies;
1 of this Supplemental Urgent Motion.’ [d] It is seriously to be doubted that, for lack of material
“In support of this prayer, it was alleged — time, more than a handful of the so called Citizens’
‘3. That petitioners are now before this Honorable Court Assemblies have been actually formed, because the
in order to ask further that this Honorable Court issue a mechanics of their organization were still being discussed a
restraining order enjoining herein respondents, particularly day or so before the day they were supposed to begin
respondent Commission on Elections as well as the functioning: —
Department of Local Governments and its head, Secretary ‘Provincial governors and city and municipal
Jose Roño; the Department of Agrarian Reforms and its mayors had been meeting with barrio captains and
head, Secretary Conrado Estrella; the National Ratification community leaders since last Monday [January 8,
Coordinating Committee and its Chairman, Guillermo de 1973) to thresh out the mechanics in the formation of
Vega; and their deputies, subordinates and/or substitutes, the Citizens Assemblies and the topics for discussion.’
from collecting, certifying, announcing and reporting to the [Bulletin Today, January 10, 1973]
President the supposed Citizens’ Assemblies referendum
64
results allegedly obtained when they were supposed to have
met during the period between January 10 and January 15,
1973, particularly 64 SUPREME COURT REPORTS ANNOTATED
63

VOL. 50, MARCH 31, 1973 63 ‘It should be recalled that the Citizens’ Assemblies were
Javellana vs. The Executive Secretary ordered formed only at the beginning of the year [Daily Express,
January 1, 1973], and considering the lack of experience of the
on the two questions quoted in paragraph 1 of this local organizers of said assemblies, as well as the absence of
Supplemental Urgent Motion; sufficient guidelines for organization, it is too much to believe that
‘4. That the proceedings of the so-called Citizens’ Assemblies such assemblies could be organized at such a short notice.
are illegal, null and void particularly insofar as such proceedings ‘5. That for lack of material time, the appropriate amended
are being made the basis of a supposed consensus for the petition to include the additional officials and government
ratification of the proposed Constitution because: — agencies mentioned in paragraph 3 of this Supplemental Urgent
[a] The elections contemplated in the Constitution, Motion could not be completed because, as noted in the Urgent
Article XV, at which the proposed constitutional Motion of January 12, 1973, the submission of the proposed
amendments are to be submitted for ratification, are Constitution to the Citizens’ Assemblies was not made known to

the public until January 11, 1973. But be that as it may, the said Supplemental Urgent Motion are restrained or enjoined from
additional officials and agencies may be properly included in the collecting, certifying, reporting or announcing to the President the
petition at bar because: — results of the alleged voting of the so-called Citizens’ Assemblies,
[a] The herein petitioners have prayed in their petition irreparable damage will be caused to the Republic of the
for the annulment not only of Presidential Decree No. 73, Philippines, the Filipino people, the cause of freedom an
but also of “any similar decree, proclamation, order or democracy, and the petitioners herein because:
instruction.” [a] After the result of the supposed voting on the
so that Presidential Decree No. 86, insofar at least as it attempts questions mentioned in paragraph 1 hereof shall have been
to submit the proposed Constitution to a plebiscite by the so- announced, a conflict will arise between those who maintain
called Citizens’ Assemblies, is properly in issue in this case, and that the 1935 Constitution is still in force, on the one hand,
those who enforce, implement, or carry out the said Presidential and those who will maintain that it has been superseded by
Decree No. 86, and the instructions incidental thereto clearly fall the proposed Constitution, on the other, thereby creating
within the scope of this petition; confusion, if not chaos;
[b] In their petition, petitioners sought the issuance of a [b] Even the jurisdiction of this Court will be subject to
writ of preliminary injunction restraining not only the serious attack because the advocates of the theory that the
respondents named in the petition but also their “agents” proposed Constitution has been ratified by reason of the
from implementing not only Presidential Decree No. 73, but announcement of the results of the proceedings of the so-
also “any other similar decree, order, instruction, or called Citizens’ Assemblies will argue that, General Order
proclamation in relation to the holding of a plebiscite on No. 3, which shall also be deemed ratified pursuant to the
January 15, 1973 for the purpose of submitting to the Transitory Provisions of the proposed Constitution, has
Filipino people for their ratification or rejection the 1972 placed Presidential Decree Nos. 73 and 86 beyond the reach
Draft or proposed Constitution approved by the and jurisdiction of this Honorable Court.’
Constitutional Convention on November 30, 1972”; and
66
finally,
[c] Petitioners prayed for such other relief which may be
just and equitable. [p. 39, Petition]. 66 SUPREME COURT REPORTS ANNOTATED
65

VOL. 50, MARCH 31, 1973 65 “On the same date — January 15, 1973 — the Court passed a
Javellana vs. The Executive Secretary 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
“Therefore, viewing the case from all angles, the officials and hearing “on January 17, 1973, at 9:30 a.m.” While the case was
government agencies mentioned in paragraph 3 of this being heard, on the date last mentioned, at noontime, the
Supplemental Urgent Motion, can lawfully be reached by the Secretary of Justice called on the writer of this opinion and said
processes of this Honorable Court by reason of this petition, that, upon instructions of the President, he (the Secretary of
considering, furthermore, that the Commission on Elections has Justice) was delivering to him (the writer) a copy of Proclamation
under our laws the power, among others, of: — No. 1102, which had just been signed by the President.
“(a) Direct and immediate supervision and control over Thereupon, the writer returned to the Session Hall and
national, provincial, city, municipal and municipal district announced to the Court, the parties in G.R. No. L-35948 —
officials required by law to perform duties relative to the inasmuch as the hearing in connection therewith was still going
conduct of elections on matters pertaining to the on — and the public there present that the President had,
enforcement of the provisions of this Code *****” [Election according to information conveyed by the Secretary of Justice,
Code of 1971, Sec. 3]. signed said Proclamation No. 1102, earlier that morning.
‘6. That unless the petition at bar is decided immediately and Thereupon, the writer read Proclamation No. 1102 which is of the
the Commission on Elections, together with the officials and following tenor:
government agencies mentioned in paragraph 3 of this ‘BY THE PRESIDENT OF THE PHILIPPINES

‘PROCLAMATION NO. 1102 ‘NOW, THEREFORE, I, FERDINAND E. MARCOS, President

‘ANNOUNCING THE RATIFICATION BY THE FILIPINO of the Philippines, by virtue of the powers in me vested by the
PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 Constitution, do hereby certify and proclaim that the Constitution
CONSTITUTIONAL CONVENTION. proposed by the nineteen hundred and seventy-one (1971)
‘WHEREAS, the Constitution proposed by the nineteen Constitutional Convention has been ratified by an overwhelming
hundred seventy-one Constitutional Convention is subject to majority of all of the votes cast by the members of all the
ratification by the Filipino people; Barangays (Citizens Assemblies) throughout the Philippines, and
‘WHEREAS, Citizens Assemblies were created in barrios, in has thereby come into effect.
municipalities and in districts/wards in chartered cities pursuant ‘IN WITNESS WHEREOF, I have hereunto set my hand and
to Presidential Decree No. 86, dated December 31, 1972, caused the seal of the Republic of the Philippines to be affixed.
composed of all persons who are residents of the barrio, district or ‘Done in the City of Manila, this 17th day of January, in the
ward for at least six months, fifteen years of age or over, citizens year of Our Lord, nineteen hundred and seventy-three.
of the Philippines and who are registered in the list of Citizen (Sgd.) FERDINAND E. MARCOS
Assembly members kept by the barrio, district or ward secretary; ‘President of the Philippines
‘WHEREAS, the said Citizens Assemblies were established ‘By the President:
precisely to broaden the base of citizen participation in the ‘ALEJANDRO MELCHOR
democratic process and to afford ample opportunity for the ‘Executive Secretary’
citizenry to express their views on important national issues;
68
‘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 68 SUPREME COURT REPORTS ANNOTATED
67

VOL. 50, MARCH 31, 1973 67 “Such is the background of the cases submitted determination.
Javellana vs. The Executive Secretary After admitting some of the allegations made in the petition in L-
35948 and denying the other allegations thereof, respondents
Assemblies or Barangays: Do you approve of the New therein alleged in their answer thereto, by way affirmative
Constitution? Do you still want a plebiscite to be called to ratify defenses: 1) that the ‘questions raised’ in said petition ‘are
the new Constitution? political in character’; 2) that ‘the Constitutional Convention
“WHEREAS, fourteen million nine hundred seventy-six acted freely and had plenary authority to propose not only
thousand five hundred sixty-one (14,976,561) members of all the amendments but a Constitution which would supersede the
Barangays (Citizens Assemblies) voted for the adoption of the present Constitution’; 3) that ‘the President’s call for a plebiscite
proposed Constitution, as against seven hundred forty-three and the appropriation of funds for this purpose are valid’; 4) that
thousand eight hundred sixty-nine (743,869) who voted for its ‘there is not an improper submission” and ‘there can be a
rejection; while on the question as to whether or not the people plebiscite under Martial Law’; and 5) that the ‘argument that the
would still like a plebiscite to be called to ratify the new Proposed Constitution is vague and incomplete, makes an
Constitution, fourteen million two hundred ninety-eight thousand unconstitutional delegation of power, includes a referendum on
eight hundred fourteen (14,298,814) answered that there was no the proclamation of Martial Law and purports to exercise judicial
need for a plebiscite and that the vote of the Barangays (Citizens power’ is ‘not relevant and x x x without merit.’ Identical defenses
Assemblies) should be considered as a vote in a plebiscite; were set up in the other cases under consideration.
“WHEREAS, since the referendum results show that more “Immediately after the hearing held on January 17, 1973, or
than ninety-five (95) per cent of the members of the Barangays since the afternoon of that date, the Members of the Court have
(Citizens Assemblies) are in favor of the new Constitution, the been deliberating on the aforementioned cases and, after
Katipunan ng Mga Barangay has strongly recommended that the extensive discussions on the merits thereof, have deemed it best
new Constitution should already be deemed ratified by the that each Member write his own views thereon and that
Filipino people; 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 “6. On Presidential Proclamation No. 1102, the following views
hereto, except that, instead of writing their separate opinions, were expressed:
some Members have preferred to merely concur in the opinion of “a. Justices Makalintal, Castro, Fernando, Teehankee,
one of our colleagues.” 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
Then the writer of said decision expressed his own not pass upon such question.
opinion on the issues involved therein, after which he “b. Justice Barredo holds that the issue on the
recapitulated the views of the Members of the Court, as constitutionality of Proclamation No. 1102 has been
follows: submitted to and should be determined by the Court, and
that the ‘purported ratification of the Proposed Constitution
“1. There is unanimity on the justiciable nature of the issue on
x x x based on the referendum among Citizens’ Assemblies
the legality of Presidential Decree No. 73.
falls short of being in strict conformity with the
“2. On the validity of the decree itself, Justices Makalintal,
requirements of Article XV of the 1935 Constitution,’ but
Castro, Fernando, Teehankee, Esguerra and myself, or six (6)
that such unfortunate drawback notwithstanding,
Members of the Court, are of the opinion that the issue has
‘considering all other related relevant circumstances, x x x
become moot and academic, whereas Justices Barredo, Makasiar
the new Constitution is legally recognizable and should be
and Antonio voted to uphold the validity of said Decree.
recognized as legitimately in force.’
“3. On the authority of the 1971 Constitutional Convention to
“c. Justice Zaldivar maintains unqualifiedly that the
pass the proposed Constitution or to incorporate therein the
Proposed Constitution has not been ratified in accordance
provisions contested by the petitioners in L-35948, Justices
with
69
70
VOL. 50, MARCH 31, 1973 69

Makalintal, Castro, Teehankee and Esguerra opine that the issue

Article XV of the 1935 Constitution, and that, accordingly,
has become moot and academic. Justices Fernando, Barredo,
it has no force and effect whatsoever.
Makasiar, Antonio and myself have voted to uphold the authority
“d. Justice Antonio feels ‘that the Court is not competent
of the Convention.
to act’ on the issue whether the Proposed Constitution has
“4. Justice Fernando, likewise, expressed the view that the
been ratified by the people or not, ‘in the absence of any
1971 Constitutional Convention had authority to continue in the
judicially discoverable and manageable standards,’ since the
performance of its functions despite the proclamation of Martial
issue ‘poses a question of fact.’
Law. In effect, Justices Barredo, Makasiar and Antonio hold the
“7. On the question whether or not these cases should be
same view.
dismissed, Justices Makalintal, Castro, Barredo, Makasiar,
“5. On the question whether the proclamation of Martial Law
Antonio and Esguerra voted in the affirmative, for the reasons set
affected the proper submission of the proposed Constitution to a
forth in their respective opinions. Justices Fernando, Teehankee,
plebiscite, insofar as the freedom essential therefor is concerned,
and the writer similarly voted, except as regards Case No. L-
Justice Fernando is of the opinion that there is a repugnancy
35948 as to which they voted to grant to the petitioners therein a
between the election contemplated under Art. XV of the 1935
reasonable period of time within which to file appropriate
Constitution and the existence of Martial Law, and would,
pleadings should they wish to contest the legality of Presidential
therefore, grant the petitions were they not moot and academic.
Proclamation No. 1102. Justice Zaldivar favors the granting of
Justices Barredo, Antonio and Esguerra are of the opinion that
said period to the petitioners in said Case No. L-35948 for the
issue involves questions of fact which cannot be predetermined,
aforementioned purpose, but he believes, in effect, that the Court
and that Martial Law per se does not necessarily preclude the
should go farther and decide on the merits everyone of the cases
factual possibility of adequate freedom, for the purposes
under consideration.”
contemplated.

Accordingly, the Court — acting in conformity with the Tañada, against the Executive Secretary, the Secretaries of
position taken by six (6) of its members,1 with three (3) Finance, Justice, Land Reform, and National Defense, the
members dissenting,2 with respect to G.R. No. L-35948, Auditor General, the Budget Commissioner, the Chairman
only and another member 3 dissenting, as regards all of the of the Presidential Commission on Reorganization, the
cases dismissed the same, without special pronouncement Treasurer of the Philippines, the Commission on Elections
as to costs. and the Commissioner of Civil Service;4 on February 3,
The Present Cases 1973, by Eddie Monteclaro, personally and as President of
Prior thereto, or on January 20, 1973, Josue Javellana the National Press Club of the Philippines, against the
filed Case G.R. No. L-36142 against the Executive Executive Secretary, the Secretary of Public Information,
Secretary and the Secretaries of National Defense, Justice the Auditor General, the Budget Commissioner and the
and Finance, to restrain said respondents “and their National Treasurer;5 and on February 12, 1973, by
subordinates or agents from implementing any of the Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
provisions of the propose Constitution not found in the Asodisen, Jr. and Raul M. Gonzales,6 against the Executive
present Constitution” — referring to that of 1935. The Secretary, the Secretary of National Defense, the Budget
petition therein, filed by Josue Javellana, as a “Filipino Commissioner and the Auditor General.
citizen, and a qualified and registered 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
1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and “duly elected
Esguerra.
2 Chief Justice Concepcion and Justices Fernando and Teehankee. _______________
3 Justice Zaldivar. 4 Case G.R. No. L-36164.
5 Case G.R. No. L-36236.
71
6 Case G.R. No. L-36293.
7 Who withdrew as petitioner on January 25, 1973.
VOL. 50, MARCH 31, 1973 71
72

voter” and as “a class suit, for himself, and in behalf of all
citizens and voters similarly situated,” was amended on or Javellana vs. The Executive Secretary
about January 24, 1973. After reciting in substance the
facts set forth in the decision in the plebiscite cases, Senator and Minority Floor Leader of the Senate,” and
Javellana alleged that the President had announced “the others as “duly elected members” thereof, filed Case G.R.
immediate implementation of the New Constitution, thru No. L-36165, against the Executive Secretary, the
his Cabinet, respondents including,” and that the latter Secretary National Defense, the Chief of Staff of the Armed
“are acting without, or in excess of jurisdiction in Forces of the Philippines, the Secretary of General
implementing the said proposed Constitution” upon the Services, the President and the President Pro Tempore of
ground: “that the President, as Commander-in-Chief of the the Senate. In their petition — as amended on January 26,
Armed Forces of the Philippines, is without authority to 1973 — petitioners Gerardo Roxas, et al. allege, inter alia,
create the Citizens Assemblies”; that the same “are without that the term of office of three of the aforementioned
power to approve the proposed Constitution ...”; “that the petitioners8 would expire on December 31, 1975, and that
President is without power to proclaim the ratification by of the others9 on December 31, 1977; that pursuant to our
the Filipino people of the proposed Constitution”; and “that 1935 Constitution, “which is still in force Congress of the
the election held to ratify the proposed Constitution was Philippines “must convene for its 8th Session on Monday,
not a free election, hence null and void.” January 22, 1973, at 10:00 A.M., which is regular
Similar actions were filed, on January 23, 1973, by Vidal customary hour of its opening session”; that “on said day,
Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, from 10:00 A.M. up to the afternoon,” said petitioner “along
Antonio U. Miranda, Emilio de Peralta and Lorenzo M. with their other colleagues, were unlawfully prevented
from using the Senate Session Hall, the same having been Senate President Pro Tempore “have unlawfully refrained
closed by the authorities in physical possession and control and continue to refrain from and/or unlawfully neglected
the Legislative Building”; that “(a)t about 5:00 to 6:00 P.M. and continue to neglect the performance of their duties and
the said day, the premises of the entire Legislative functions as such officers under the law and the Rules of
Building were ordered cleared by the same authorities, and the Senate” quoted in the petition; that because of events
no one was allowed to enter and have access to said supervening the institution of the plebiscite cases, to which
premises”; that “(r)espondent Senate President Gil J. Puyat reference has been made in the preceding pages, the
and, in his absence, respondent President Pro Tempore Supreme Court dismissed said cases on January 22, 1973,
Jose Roy we asked by petitioning Senators to perform their by a majority vote, upon the ground that the petitions
duties under the law and the Rules of the Senate, but therein had become moot and academic; that the alleged
unlawfully refrained and continue to refrain from doing ratification of the 1972 (1973) Constitution “is illegal,
so”; that the petitioners ready and willing to perform their unconstitutional and void and x x x can not have
duties as duly elected members of the Senate of the superseded and revoked the 1935 Constitution,” for the
Philippines,” but respondent Secretary of National Defense, reasons specified in the petition as amended; that, by
Executive Secretary and Chief of Staff, “through their acting as they did, the respondents and their “agents,
agents and representatives, are preventing petitioners from representatives and subordinates x x x have excluded the
performing their duties as duly elected Senators of the petitioners from an office to which” they “are lawfully
Philippines”; that “the Senate premise in the Congress of entitled”; that “respondents Gil J. Puyat and Jose Roy have
the Philippines Building x x x are occupied by and are unlawfully refrained from convening the Senate for its 8th
under the physical control of the elements military session, assuming general jurisdiction over the Session
organizations under the direction of said Hall and the premises of the Senate and x x x continue
such inaction up to this time and x x x a writ of
_______________ mandamus is warranted in order to compel them to comply
8 Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. with the duties and functions specifically enjoined by law”;
Now, after the withdrawal of the latter, the first two (2) only. and that “against the above mentioned unlawful acts of the
9 Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada- respondents, the petitioners have no appeal nor other
Kalaw. speedy and adequate remedy in the ordinary course of law
except by invoking the equitable remedies of
73 mandamus and prohibition with the provisional remedy of
preliminary mandatory injunction.”
VOL. 50, MARCH 31, 1973 73 74
respondents”; that, as per “official reports, the Department Javellana vs. The Executive Secretary
of General Services x x x is now the civilian agency in
custody of the premises of the Legislative Building”; that
respondents “have unlawfully excluded and prevented, and Premised upon the foregoing allegations, said
continue to so exclude and prevent” the petitioners “from petitioners prayed that, “pending hearing on the merits, a
the performance of their sworn duties, invoking the alleged writ of preliminary mandatory injunction be issued
approval of the 1972 (1973) Constitution of the Philippines ordering respondents Executive Secretary, the Secretary of
by action of the so-called Citizens’ Assemblies on January National Defense, the Chief of Staff of the Armed Forces of
10, 1973 to January 15, 1973, as stated in and by virtue of the Philippines, and the x x x Secretary of General Service,
Proclamation No. 1102 signed and issued by the President as well as all their agents, representatives and
of the Philippines”; that “the alleged creation of the subordinates to vacate the premises of the Senate of the
Citizens’ Assemblies as instrumentalities for the Philippines and to deliver physical possession of the same
ratification of the Constitution of the Republic of the to the President of the Senate or his authorized
Philippines” is inherently illegal and palpably representative”; and that hearing, judgment be rendered
unconstitutional; that respondents Senate President and
declaring null and Proclamation No. 1102 x x x and any in view of the opinions expressed by three members of this
order, decree, proclamation having the same import and Court in its decision in the plebiscite cases, in effect
objective, issuing writs of prohibition and mandamus, as upholding the validity of Proclamation No. 1102, “further
prayed for against above-mentioned respondents, and proceedings in this case may only be an academic exercise
making the writ injunction permanent; and that a writ of in futility.”
mandamus be issued against the respondents Gil J. Puyat On February 5, 1973, the Court issued a resolution
and Jose Roy directing them to comply with their duties requiring respondents in L-36236 to comment on the
and functions as President and President Pro Tempore, petition therein not later than Saturday, February 10,
respectively, of the Senate of Philippines, as provided by 1973, and setting the case for hearing on February 12,
law and the Rules of the Senate.” 1973, at 9:30 a.m. By resolution dated February 7, 1973,
Required to comment on the above-mentioned petitions this Court resolved to consider the comments of the
and/or amended petitions, respondents filed, with the leave respondents in cases G.R. Nos. L-36142, L-36164, and L-
Court first had and obtained, a consolidated comment on 36165, as motions to dismiss the petitions therein, and to
said petitions and/or amended petitions, alleging that the set said cases for hearing on the same date and time as L-
same ought to have been dismissed outright; controverting 36236. On that date, the parties in G.R. No. L-36283
10
petitioners’ allegations concerning the alleged lack agreed that the same be, likewise, heard, as it was, in
impairment of the freedom of the 1971 Constitution fact, heard jointly with the aforementioned cases G.R. Nos.
Convention to approve the proposed Constitution, its L-36142, L-36164, L-36165 and L-36236. The hearing,
alleged lack of authority to incorporate certain contested which began on February 12, 1973, shortly after 9:30 a.m.,
provisions thereof, the alleged lack of authority of the was continued not only that afternoon, but, also, on
President to create and establish Citizens’ Assemblies “for February 13, 14, 15 and 16, morning and afternoon, after
the purpose submitting to them the matter of ratification of which the parties were granted up to February 24, 1973,
the new Constitution,” the alleged “improper or inadequate noon, within which to submit their notes of oral arguments
submission of the proposed constitution,” the “procedure for and additional arguments, as well as the documents
ratification adopted x x x through the Citizens Assemblies”; required of them or whose presentation was reserved by
a maintaining that: 1) “(t)he Court is without jurisdiction them. The same resolution granted the parties until March
to act on these petitions”; 2) the questions raised therein 1, 1973, to reply to the notes filed by their respective
are “political in character and therefore nonjusticiable”; 3) opponents. Counsel for the petitioners in G.R. Nos. L-36164
“there substantial compliance with Article XV of the 1935 and L-36165 filed their aforementioned notes on February
Constitution”; 4) “(t)he Constitution was properly 24, 1973, on which date the Solicitor General sought an
submitted the people in a free, orderly and honest election; extension of time up to March 3, 1973, within which to file
5) his notes, which was granted, with
75
_______________
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
VOL. 50, MARCH 31, 1973 75
76
“Proclamation No. 1102, certifying the results of the 76 SUPREME COURT REPORTS ANNOTATED
election, is conclusive upon the courts”; and 6) “(t)he Javellana vs. The Executive Secretary
amending process outlined in Article XV of the 1935
Constitution is not exclusive of other modes of the understanding that said notes shall include his reply to
amendment.” the notes already filed by the petitioners in G.R. Nos. L-
Respondents Puyat and Roy, in said Case G.R. No. L- 36164 and L-36165. Counsel for the petitioners, likewise,
36165, filed their separate comment therein, alleging that moved and were granted an extension of time, to expire on
“(t)he subject matter” of said case “is a highly political March 10, 1973, within which to file, as they did, their
question which, under the circumstances, this x x x Court notes in reply to those submitted by the Solicitor General
would not be in a position to act upon judicially,” and that, on March 3, 1973. On March 21, 1973, petitioners in L-
36165 filed a “Manifestation a Supplemental Rejoinder,” that such plebiscite was not held accordingly”; and that he
whereas the Office of the Solicitor General submitted in all accepted “as a fait accompli that the Constitution adopted
these cases a “Rejoinder Petitioners’ Replies.” (by the 1971 Constitutional Convention) on November 30,
After deliberating on these cases, the members of the 1972, has been duly ratified.”
Court agreed that each would write his own opinion and Counsel for respondents Gil J. Puyat and Jose Roy goes
serve a copy thereof on his colleagues, and this they did. on to say that, under these circumstances, “it seems remote
Subsequently, the Court discussed said opinions and votes or improbable that the necessary eight (8) votes under the
were cast thereon. Such individual opinions are appended 1935 Constitution, and much less the ten (10) votes
hereto. required by the 1972 (1973) Constitution, can be obtained
Accordingly, the writer will first express his person for the relief sought in the Amended Petition” in G.R.
opinion on the issues before the Court. After the exposition No. L-36165.
his aforesaid opinion, the writer will make, concurrently I am unable to share this view. To begin with, Mr.
with his colleagues in the Court, a resume of summary of Justice Barredo announced publicly, in open court, during
the votes cast by them in these cases. the hearing of these cases, that he was and is willing to be
Writer’s Personal Opinion convinced that his aforementioned opinion in the plebiscite
I. cases should be reconsidered and changed. In effect, he
Alleged academic futility of further proceedings in G.R. thus declared that he had an open mind in connection with
L-36165. the cases at bar, and that in deciding the same he would
This defense or theory, set up by counsel for respondents not necessarily adhere to said opinion if the petitioners
Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also, herein succeeded in convincing him that their view should
by the Solicitor General, is predicated upon the fact that, in be sustained.
Our decision in the plebiscite cases, Mr. Justice Barredo Secondly, counsel for the aforesaid respondents had
had expressed the view that the 1935 Constitution had “pro apparently assumed that, under the 1935 Constitution,
tanto passed into history” and “been legitimately eight (8) votes are necessary to declare invalid the
supplanted by the Constitution now in force by virtue of contested Proclamation No. 1102. I do not believe that this
Proclamation No. 1102 x x x”; that Mr. Justice Antonio did assumption is borne out by any provision of said
not feel “that this Court competent to act” in said cases “in Constitution. Section 10 of Article VIII thereof reads:
the absence of any judicially discoverable and manageable
standards” and because “the access to relevant information “All cases involving the constitutionality of a treaty or law
is insufficient to assure the correct determination of the shall be heard and decided by the Supreme Court in banc, and no
issue,” apart from the treaty or law may be declared unconstitutional without the
concurrence of two thirds of all the members of the Court.”
77
78
VOL. 50, MARCH 31, 1973 77

circumstance that “the new constitution has been
promulgated and great interests have already arisen under
it” and that the political organ of the Government has Pursuant to this section, the concurrence of two-thirds of
recognized its provisions; whereas, Mr. Justice Esguerra all the Members of the Supreme Court is required only to
had postulated that “(w)ithout any competent evidence declare “treaty or law” unconstitutional. Construing said
x x x about the circumstances attending the holding” of the provision, in a resolution dated September 16, 1949, then
“referendum or plebiscite” thru the Citizens’ Assemblies, he Chief Justice Moran, voicing the unanimous view of the
“cannot say that it was not lawfully held” and that, Members of this Court, postulated:
accordingly, he assumed ”that what the proclamation (No.
“x x x There is nothing either in the Constitution or in the
1102) says on its face is true and until overcome by
Judiciary Act requiring the vote of eight Justices to nullify a rule
satisfactory evidence” he could not “subscribe to the claim
or regulation or an executive order issued by the President. It is operation of the Government or rearranging or readjusting any of
very significant that in the previous drafts of section 10, Article the districts, divisions, parts or ports of the (Philippine Islands)
VIII of the Constitution, ‘executive order’ and ‘regulation’ were Philippines and all acts and commands governing the general
included among those that required for their nullification the vote performance of duties by public employees or disposing of issues
of two-thirds of all the members of the Court. But ‘executive order’ of general concern shall be made effective in executive orders.
and ‘regulation’ were later deleted from the final draft (Aruego, “Executive orders fixing the dates when specific laws,
The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), resolutions, or orders are to have or cease to (have) effect and any
and thus a mere majority of six members of this Court is enough to information concerning matters of public moment determined by
nullify them.”11 law, resolution, or executive orders, may be promulgated in an
executive proclamation, with all the force of an executive order.”14
The distinction is not without reasonable foundation.
The two thirds vote (eight [8] votes) requirement, indeed, In fact, while executive order embody administrative
was made to apply only to treaty and law, because, in these acts or commands of the President, executive
cases, the participation of the two other departments of the proclamations are mainly informative and declaratory in
government — the Executive and the Legislative — is character, and so does counsel for respondents Gil J. Puyat
present, which circumstance is absent in the case of rules, and Jose Roy maintain in G.R. No. L-36165.15 As
regulations and executive orders. Indeed, a law (statute) consequence, an executive proclamation has no more than
passed by Congress is subject to the approval or veto of the “the force of an executive order,” so that, for the Supreme
President, whose disapproval cannot be overridden except Court to declare such proclamation unconstitutional, under
by the vote of two-thirds (2/3) of all members of each House the 1935 Constitution, the same number of votes needed to
of Congress.12 A treaty is entered into by the President invalidate an executive order, rule or regulation — namely,
with the concurrence of the Senate,13 which is not required six (6) votes — would suffice.As regards the applicability of
in the case of rules, regulations or executive orders which the provisions of the proposed new Constitution, approved
are exclusive acts of the President. Hence, to nullify the by the 1971 Constitutional Convention, in the
same, a lesser number of votes is necessary in the Supreme determination of the question whether or not it is now in
Court than that required to invalidate a law or treaty. force, it is obvious that such question depends upon
Although the foregoing refers to rules, regulations and 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
11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Constitutional Convention was called and approved the
Commission on Elections, L-28196 & L-28224, Nov. 9, 1967. Emphasis proposed Constitution.
ours.
12 Art. VI, sec. 20(1), Constitution. _______________
13 Art. VII, sec. 10(7), Constitution. 14 Italics ours.
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
79

VOL. 50, MARCH 31, 1973 79 80
executive orders issued by the President, the dictum Javellana vs. The Executive Secretary
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 It is well settled that the matter of ratification of an
Administrative Code, which provides: amendment to the Constitution should be settled by
applying the provisions of the Constitution in force at the
“Administrative acts and commands of the (Governor-General) time of the alleged ratification, or the old Constitution.16
President of the Philippines touching the organization or mode of II
Does the issue on the validity of Proclamation No. 1102 Constitution, to dispense with said election or plebiscite;
partake of the nature of a political, and, hence, non- that the proceedings before the Citizens’ Assemblies did not
justiciable question? constitute and may not be considered as such plebiscite;
The Solicitor General maintains in his comment the that the facts of record abundantly show that the
affirmative view and this is his main defense. In support aforementioned Assemblies could not have been held
thereof, he alleges that “petitioners would have this Court throughout the Philippines from January 10 to January 15,
declare as invalid the New Constitution of the Republic” 1973; and that, in any event, the proceedings in said
from which — he claims — “this Court now derives its Assemblies are null and void as an alleged ratification of
authority”; that “nearly 15 million of our body politic from the new Constitution proposed by the 1971 Constitutional
the age of 15 years have mandated this Constitution to be Convention, not only because of the circumstances under
the New Constitution and the prospect of unsettling acts which said Assemblies had been created and held, but,
done in reliance on it caution against interposition of the also, because persons disqualified to vote under Article V of
power of judicial review”; that “in the case of the New the Constitution were allowed to participate therein,
Constitution, the government has been recognized in because the provisions of our Election Code were not
accordance with the New Constitution”; that “the country’s observed in said Assemblies, because the same were not
foreign relations are now being conducted in accordance held under the supervision of the Commission on Elections,
with the new charter”; that “foreign governments have in violation of section 2 of Article X of the 1935
taken note of it”; that the “plebiscite cases” are “not Constitution, and because the existence of Martial Law and
precedents for holding questions regarding proposal and General Order No. 20, withdrawing or suspending the
ratification justiciable”; and that “to abstain from judgment limited freedom to discuss the merits and demerits of said
on the ultimate issue of constitutionality is not to abdicate proposed Constitution, impaired the people’s freedom in
duty.” voting thereon, particularly a viva voce, as it was done in
At the outset, it is obvious to me that We are not being many instances, as well as their ability to have a
asked to “declare” the new Constitution invalid. What reasonable knowledge of the contents of the document on
petitioners dispute is the theory that it has been validly which they were allegedly called upon to express their
ratified by the people, especially that they have done so in views.
accordance with Article XV of the 1935 Constitution. The Referring now more specifically to the issue on whether
petitioners maintain 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
16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. political question or not, I do not hesitate to state that the
Gilchrist, 59 So. Rep. 963; McAdams v. Henley, 273 S.W. 355; Egbert v. answer must be in the negative. Indeed, such is the
City of Dunseith, 74 N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907; State ex rel. position taken by this Court,17 in
Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis Brewing
Association v. Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18; _______________
Johnson v. Craft, 87 So. Rep. 375. 17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v.
Piguing, et al., L-35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-
81
21114, Nov. 25, 1967; Gonzales v. Commission on Elections, L-28224, Nov.
29, 1967; Bara Lidasan v. COMELEC,
VOL. 50, MARCH 31, 1973 81
82

that the conclusion reached by the Chief Executive in the
dispositive portion of Proclamation No. 1102 is not borne Javellana vs. The Executive Secretary
out by the whereases preceding the same, as the predicates
from which said conclusion was drawn; that the plebiscite an endless line of decisions, too long to leave any room for
or “election” required in said Article XV has not been held; possible doubt that said issue is inherently and essentially
that the Chief Executive has no authority, under the 1935 justiciable. Such, also, has been the consistent position of
the courts of the United States of America, whose decisions of the proposed new Constitution, was valid or not, was not
have a persuasive effect in this jurisdiction, our a proper subject of judicial inquiry because, they claimed, it
constitutional system in the 1935 Constitution being partook of a political nature, and We unanimously declared
patterned after that of the United States. Besides, no that the issue was a justiciable one. With identical
plausible reason has, to my mind, been advanced to unanimity, We overruled the respondents’ contention in the
warrant a departure from said position, consistently with 1971 habeas corpus cases,19 questioning Our authority to
the form of government established under said determine the constitutional sufficiency of the factual bases
Constitution. of the Presidential proclamation suspending the privilege
Thus, in the aforementioned plebiscite cases,18 We of the writ of habeas corpus on August 21, 1971, despite the
rejected the theory of the respondents therein that the opposite view taken by this Court in Barcelona v. Baker
20
question 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
L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug. 31, apply and expressly modified, in Gonzales v. Commission
1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967; Pelayo v. on Elections,22 the political-question theory adopted in
Auditor General, L-23825, Dec. 24, 1965; Philippine Constitution Mabanag v. Lopez Vito.23 Hence, respondents herein urge
Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v. Us to reconsider the action thus taken by the Court and to
NAWASA, L-20232, Sept. 30, 1964; Guevara v. Inocentes, L-25577, Mar. revert to and follow the views expressed in Barcelon v.
15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Baker and Mabanag v. Lopez Vito.24
Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. The reasons adduced in support thereof are, however,
NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30, substantially the same as those given in support of the
1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. political-question theory advanced in said habeas
Ramos, et al., L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, corpus and plebiscite cases, which were carefully
Sept. 16, 1961; Macias v. Commission on Elections, L-18684, Sept. 14, considered by this Court and found by it to be legally
1961; Philippine Tobacco Flue-Curing & Redrying Corp. v. Sabugo, et al., unsound and constitutionally untenable. As a consequence,
L-16017, Aug. 31, 1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Our decision in the
Liong v. Estrella, et al., L-14212, July 31, 1961; Pampanga Sugar
Development Co., Inc. v. Fuentes, et al., L-14738, July 31, 1961; Earnshaw _______________
Docks & Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961; 19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M.
Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura Garcia; L-33965, Rogelio V. Arienda v. Secretary of National Defense, et
v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee al.; L-33973, Luzvimindo David v. Gen. Eduardo Garcia, et al.; L-33962,
Trading Co., et al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works Felicidad G. Prudente v. General Manuel Yan, et al.; L-34004, Domingo E.
and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor de Lara v. Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo
Standards Commission, L-14837, June 30, 1961; City of Baguio v. Rimando v. Brig. Gen. Eduardo M. Garcia; L-34039, Carlos C. Rabago v.
NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr. v. Gen.
April 20,1960; Montes v. Civil Service Board of Appeals, 101 Phil. 490, Eduardo Garcia, et al.; and L-34339, Gary B. Olivar, et al. v. Gen.
Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368; Eduardo Garcia, et al.
Borromeo v. Mariano, 41 Phil. 322. 20 5 Phil. 87.
18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L- 21 91 Phil. 882.
35953, L-35961, L-35965 and L-35979, decided on January 22, 1973. 22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
23 78 Phil. 1.
83
24 Supra.
84
VOL. 50, MARCH 31, 1973 83
whether Presidential Decree No. 73 calling a plebiscite to Javellana vs. The Executive Secretary
be held on January 15, 1973, for the ratification or rejection
aforementioned habeas corpus cases partakes of the nature Javellana vs. The Executive Secretary
and effect of a stare decisis, which gained added weight by
its virtual reiteration in the plebiscite cases. Appointments — may approve or disapprove some
The reason why the issue under consideration and other appointments made by the President. It, also, has the
issues of similar character are justiciable, not political, is power of appropriation, to “define, prescribe, and apportion
plain and simple. One of the principal bases of the non- the jurisdiction of the various courts,” as well as that of
justiciability of so-called political questions is the principle impeachment. Upon the other hand, under the judicial
of separation of powers — characteristic of the Presidential power vested by the Constitution, the “Supreme Court and
system of government — the functions of which are x x x such inferior courts as may be established by law,”
classified or divided, by reason of their nature, into three may settle or decide with finality, not only justiciable
(3) categories, namely: 1) those involving the making of controversies between private individuals or entities, but,
laws, which are allocated to the legislative department; 2) also, disputes or conflicts between a private individual or
those concerned mainly with the enforcement of such laws entity, on the one hand, and an officer or branch of the
and of judicial decisions applying and/or interpreting the government, on the other, or between two (2) officers or
same, which belong to the executive department; and 3) branches of service, when the latter officer or branch is
those dealing with the settlement of disputes, controversies charged with acting without jurisdiction or in excess
or conflicts involving rights, duties or prerogatives that are thereof or in violation of law. And so, when a power vested
legally demandable and enforceable, which are apportioned in said officer or branch of the government is absolute or
to courts of justice. Within its own sphere — but only unqualified, the acts in the exercise of such power are said
within such sphere — each department is supreme and to be political in nature, and, consequently, non-justiciable
independent of the others, and each is devoid of authority, or beyond judicial review. Otherwise, courts of justice
not only to encroach upon the powers or field of action would be arrogating upon themselves a power conferred by
assigned to any of the other departments, but, also, to the Constitution upon another branch of the service to the
inquire into or pass upon the advisability or wisdom of the exclusion of the others. Hence, in Tañada v. Cuenco,26 this
acts performed, measures taken or decisions made by the Court quoted with approval from In re McConaughy,27 the
other departments — provided that such acts, measures or following:
decisions are within the area allocated thereto by the
Constitution.25
This principle of separation of powers under the “ ‘At the threshold of the case we are met with the assertion
presidential system goes hand in hand with the system of that the questions involved are political, and not judicial. If this is
checks and balances, under which each department is correct, the court has no jurisdiction as the certificate of the state
vested by the Fundamental Law with some powers to canvassing board would then be final, regardless of the actual
forestall, restrain or arrest a possible or actual misuse or vote upon the amendment. The question thus raised is a
abuse of powers by the other departments. Hence, the fundamental one; but it has been so often decided contrary to the
appointing power of the Executive, his pardoning power, view contended for by the Attorney General that it would seem to
his veto power, his authority to call the Legislature or be finally settled.
Congress to special sessions and even to prescribe or limit * * * *
the object or objects of legislation that may be taken up in “ ‘* * * What is generally meant, when it is said that a question
such sessions, etc. Conversely, Congress or an agency or is political, and not judicial, is that it is a matter which is to be
arm thereof — such as the Commission on 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
25 In re McConaughy, 119 N.W. 408, 417.
_______________
85 26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417.
VOL. 50, MARCH 31, 1973 85 86

87
Javellana vs. The Executive Secretary VOL. 50, MARCH 31, 1973 87
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. Accordingly, when the grant of power is qualified,
220. Thus the Legislature may in its discretion determine whether conditional or subject to limitations, the issue on whether
it will pass law or submit a proposed constitutional amendment to or not the prescribed qualifications or conditions have been
the people. The courts have no judicial control over such matters, met, or the limitations respected, is justiciable or non-
not merely because they involve political questions, but because political, the crux of the problem being one of legality or
they are matters which the people have by the Constitution validity of the contested act, not its wisdom. Otherwise,
delegated to the Legislature. The Governor may exercise the said qualifications, conditions or limitations — particularly
powers delegated him, free from judicial control, so long as he those prescribed or imposed by the Constitution — would
observes the laws act within the limits of the power conferred. His be set at naught. What is more, the judicial inquiry into
discretionary acts cannot be controllable, not primarily because such issue and the settlement thereof are the main
they are of a politics nature, but because the Constitution and functions of courts of justice under the Presidential form of
laws have placed the particular matter under his control. But government adopted in our 1935 Constitution, and the
every officer under constitutional government must act accordingly system of checks and balances, one of its basic predicates.
to law and subject its restrictions, and every departure therefrom As a consequence, We have neither the authority nor the
or disregard thereof must subject him to that restraining and discretion to decline passing upon said issue, but are under
controlling power of the people, acting through the agency of the the ineluctable obligation — made particularly more
judiciary; for it must be remembered that the people act through exacting and peremptory by our oath, as members of the
courts, as well as through the executive or the Legislature. One highest Court of the land, to support and defend the
department is just as representative as the other, and the Constitution — to settle it. This explains why, in Miller v.
judiciary is the department which is charged with the special duty Johnson,28 it was held that courts have a “duty, rather
of determining the limitations which the law places upon all than a power,” to determine whether another branch of the
official action. The recognition of this principle, unknown except government has “kept within constitutional limits.” Not
in Great Britain and America, is necessary, to “the end that the satisfied with this postulate, the court went farther and
government may be one of laws and not of men” — words which stressed that, if the Constitution provides how it may be
Webster said were the greatest contained in any written amended — as it is in our 1935 Constitution — “then,
constitutional document.” (Italics supplied.) unless the manner is followed, the judiciary as the
interpreter of that constitution, will declare the amendment
and, in an attempt to describe the nature of a political invalid.”29 In fact, this very Court — speaking through
question in terms, it was hoped, understandable to the Justice Laurel, an outstanding authority on Philippine
laymen, We added that “x x x the term “political question” Constitutional Law, as well as one of the highly respected
connotes, in legal parlance, what it means in ordinary and foremost leaders of the Convention that drafted the
parlance, namely, a question of policy” in matters 1935 Constitution — declared, as early as July 15, 1936,
concerning the government of a State, as a body politic. “In that “(i)n times of social disquietude or political excitement,
other words, in the language of Corpus Juris Secundum ( the great landmarks of the Constitution are apt to be
supra), it refers to “those questions which, under the forgotten or marred, if not entirely obliterated. In cases of
Constitution, are to be decided by the people in their conflict, the judicial department is the only constitutional
sovereign capacity, or in regard to which full discretionary organ which can be called upon to determine the proper
authority has been delegated to the Legislature or allocation of powers between the several departments” of
executive branch of the government.” It is concerned with the government.30
issues dependent upon the wisdom, not legality, of a
particular measure.” _______________
28 92 Ky. 589, 18 S.W. 522, 523.
29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. existing government. The delegates to such convention
Rep. 609; State v. Tufly, 19 Nev. 391, 12 Pac. Rep. 835. framed a new Constitution which
30 Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
_______________
88
31 12 L. ed. 581 (1849).
88 SUPREME COURT REPORTS ANNOTATED 89

VOL. 50, MARCH 31, 1973 89
The Solicitor General has invoked Luther v. Borden31 in
support of his stand that the issue under consideration is was submitted to the people. Upon the return of the votes
non-justiciable in nature. Neither the factual background of cast by them, the convention declared that said
that case nor the action taken therein by the Federal Constitution had been adopted and ratified by a majority of
Supreme Court has any similarity with or bearing on the the people and became the paramount law and
cases under consideration. Constitution of Rhode Island.
Luther v. Borden was an action for trespass filed by The charter government, which was supported by a
Luther with the Circuit Court of the United States against large number of citizens of the state, contested, however,
Borden and others for having forcibly entered into Luther’s the validity of said proceedings. This notwithstanding, one
house, in Rhode Island, sometime in 1842. The defendants Thomas W. Dorr, who had been elected governor under the
who were in the military service of said former colony of new Constitution of the rebels, prepared to assert authority
England, alleged in their defense that they had acted in by force of arms, and many citizens assembled to support
obedience to the commands of a superior officer, because him. Thereupon, the charter government passed an Act
Luther and others were engaged in a conspiracy to declaring the state under Martial Law and adopted
overthrow the government by force and the state had been measures to repel the threatened attack and subdue the
placed by competent authority under Martial Law. Such rebels. This was the state of affairs when the defendants,
authority was the charter government of Rhode Island at who were in the military service of the charter government
the time of the Declaration of Independence, for — unlike and were to arrest Luther, for engaging in the support of
other states which adopted a new Constitution upon the rebel government — which was never able to exercise
secession from England — Rhode Island retained its form any authority in the state — broke into his house.
of government under a British Charter, making only such Meanwhile, the charter government had taken measures
alterations, by acts of the Legislature, as were necessary to to call its own convention to revise the existing form of
adapt it to its subsequent condition as an independent government. Eventually, a new constitution was drafted by
state. It was under this form of government when Rhode a convention held under the authority of the charter
Island joined other American states in the Declaration of government, and thereafter was adopted and ratified by
Independence and, by subsequently ratifying the the people. “(T)he times and places at which the votes were
Constitution of the United States, became a member of the to be given, the persons who were to receive and return
Union. In 1843, it adopted a new Constitution. them, and the qualifications of the voters having all been
Prior thereto, however, many citizens had become previously authorized and provided for by law passed by the
dissatisfied with the charter government. Memorials charter government,” the latter formally surrendered all of
addressed by them to the Legislature having failed to bring its powers to the new government, established under its
about the desired effect, meetings were held and authority, in May 1843, which had been in operation
associations formed — by those who belonged to this uninterruptedly since then.
segment of the population — which eventually resulted in a About a year before, or in May 1842, Dorr, at the head of
convention called for the drafting of a new Constitution to a military force, had made an unsuccessful attempt to take
be submitted to the people for their adoption or rejection. possession of the state arsenal in Providence, but he was
The convention was not authorized by any law of the 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 States are bound to follow the decisions of the State tribunals, and
the old government, no further effort was made to must therefore regard the charter government as the lawful and
establish” his government. “x x x until the Constitution of established government during the time of this contest.32
1843” — adopted under the auspices of the charter
government — “went into _______________
32 Luther v. Borden, supra, p. 598. Italics ours.
90
91
operation, the charter government continued to assert its
authority and exercise its powers and to enforce obedience
throughout the state x x x.” It is thus apparent that the context within which the
Having offered to introduce evidence to prove that the case of Luther v. Borden was decided is basically and
constitution of the rebels had been ratified by the majority fundamentally different from that of the cases at bar. To
of the people, which the Circuit Court rejected, apart from begin with, the case did not involve a federal question, but
rendering judgment for the defendants, the plaintiff took one purely municipal in nature. Hence, the Federal
the case for review to the Federal Supreme Court which Supreme Court was “bound to follow the decisions of the
affirmed the action of the Circuit Court, stating: State tribunals” of Rhode Island upholding the constitution
adopted under the authority of the charter government.
“It is worthy of remark, however, when we are referring to the Whatever else was said in that case constitutes, therefore,
authority of State decisions, that the trial of Thomas W. Dorr took an obiter dictum. Besides, no decision analogous to that
place after the constitution of 1843 went into operation. The rendered by the State Court of Rhode Island exists in the
judges who decided that case held their authority under that cases at bar. Secondly, the states of the Union have a
constitution and it is admitted on all hands that it was adopted by measure of internal sovereignty upon which the Federal
the people of the State, and is the lawful and established Government may not encroach, whereas ours is a unitary
government. It is the decision, therefore, of a State court, whose form of government, under which our local governments
judicial authority to decide upon the constitution and laws of derive their authority from the national government.
Rhode Island is not questioned by either party to this controversy, Again, unlike our 1935 Constitution, the charter or organic
although the government under which it acted was framed and law of Rhode Island contained no provision on the manner,
adopted under the sanction and laws of the charter government. procedure or conditions for its amendment.
“The point, then, raised here has been already decided by the Then, too, the case of Luther v. Borden hinged more on
courts of Rhode Island. The question relates, altogether, to the the question of recognition of government, than on
constitution and laws of that State, and the well settled rule in recognition of constitution, and there is a fundamental
this court is, that the courts of the United States adopt and follow difference between these two (2) types of recognition, the
the decisions of the State courts in questions which concern merely first being generally conceded to be a political question,
the constitution and laws of the State. whereas the nature of the latter depends upon a number of
“Upon what ground could the Circuit Court of the United States factors, one of them being whether the new Constitution
which tried this case have departed from this rule, and has been adopted in the manner prescribed in the
disregarded and overruled the decisions of the courts of Rhode Constitution in force at the time of the purported
Island? Undoubtedly the courts of the United States have certain ratification of the former, which is essentially a justiciable
powers under the Constitution and laws of the United States question. There was, in Luther v. Borden, a conflict
which do not belong to the State courts. But the power of between two (2) rival governments, antagonistic to each
determining that a State government has been lawfully other, which is absent in the present cases. Here, the
established, which the courts of the State disown and repudiate, is Government established under the 1935 Constitution is the
not one of them. Upon such a question the courts of the United very same government whose Executive Department has

urged the adoption of the new or revised Constitution Similarly, in Powell v. McCormack,35 the same Court,
proposed by the 1971 Constitutional Convention and now speaking through then Chief Justice Warren, reversed a
alleges that it has been ratified by the people. decision of the Court of Appeals of New York affirming that
In short, the views expressed by the Federal Supreme of a Federal District Court, dismissing Powell’s action for a
Court in Luther v. Borden, decided in 1849, on matters declaratory judgment declaring thereunder that he —
other than those referring to its power to review decisions whose qualifications were uncontested — had been
of a state court concerning the constitution and government unlawfully excluded from the 90th Congress of the U.S.
of that state, not the Federal Constitution or Government, Said dismissal
are manifestly neither
_______________
92
33 In re McConaughy, supra, p. 416. Italics ours.
34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).
92 SUPREME COURT REPORTS ANNOTATED 35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
93
controlling, nor even persuasive in the present cases,

having as the Federal Supreme Court admitted — VOL. 50, MARCH 31, 1973 93
no authority whatsoever to pass upon such matters or to Javellana vs. The Executive Secretary
review decisions of said state court thereon. In fact,
referring to that case, the Supreme Court of Minnessota was predicated upon the ground, inter alia, that the issue
had the following to say: was political, but the Federal Supreme Court held that it
“Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by was clearly a justiciable one.
those who assert that the courts have no power to determine The Supreme Court of Minnessota undertook a careful
questions of a political character. It is interesting historically, but review of American jurisprudence on the matter. Owing to
it has not the slightestapplication to the case at bar. When the lucidity of its appraisal thereof, We append the same to
carefully analyzed, it appears that it merely determines that the this opinion as Annex A thereof.
federal courts will accept as final and controlling a decision of the After an, exhaustive analysis of the cases on this
highest court of a state upon a question of the construction of the subject, the Court concluded:
Constitution of the state. x x x.33 “The authorities are thus practically uniform in holding that
whether a constitutional amendment has been properly adopted
Baker v. Carr,34 cited by respondents, involved an action
according to the requirements of an existing Constitution is a
to annul a Tennessee statute apportioning the seats in the
judicial question. There can be little doubt that the consensus of
General Assembly among the counties of the State, upon
judicial opinion is to the effect that it is the absolute duty of the
the theory that the legislation violated the equal protection
judiciary to determine whether the Constitution has been
clause. A district court dismissed the case upon the ground,
amended in the manner required by the Constitution, unless a
among others, that the issue was a political one, but, after
special tribunal has been created to determine the question; and
a painstaking review of the jurisprudence on the matter,
even then many of the courts hold that the tribunal cannot be
the Federal Supreme Court reversed the appealed decision
permitted to illegally amend the organic law. x x x.”36
and held that said issue was justiciable and non-political,
inasmuch as: “x x x (d)eciding whether a matter has in any In the light of the foregoing, and considering that Art.
measure been committed by the Constitution to XV of our 1935 Constitution prescribes the method or
another branch of government, or whether the action of procedure for its amendment, it is clear to my mind that
that branch exceeds whatever authority has been the question whether or not the revised Constitution
committed, is itself a delicate exercise in constitutional drafted by the 1971 Constitutional Convention has been
interpretation, and is a responsibility of this Court as ratified in accordance with said Art. XV is a justiciable one
ultimate interpreter of the Constitution x x x.” and non-political in nature, and that it is not only subject

to judicial inquiry, but, also, that it is the Court’s bounden there was practically no time for the Citizens’ Assemblies
duty to decide such question. to discuss the merits of the Constitution which the majority
The Supreme Court of the United States has of them have not read a which they never knew would be
meaningfully postulated that “the courts cannot reject as submitted to them ratification until they were asked the
‘no law suit’ ” — because it allegedly involves a political question — “do you approve of the New Constitution?”
question — “a bona fide controversy as to whether some during the said days of the voting”; and that “(t)here was
action denominated ‘political’ exceeds constitutional altogether no freedom discussion and no opportunity to
authority.”37 concentrate on the matter submitted to them when the
1972 draft was supposedly submitted to the Citizens’
_______________ Assemblies for ratification.”
36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The Petitioner in L-36236 added, as arguments in support of
observation as to the uniformity of authorities on the matter has been the negative view, that : 1) “(w)ith a government-controlled
reiterated in Winget v. Holm, 244 N.W. 329, 332. press, there can never be a fair and proper submission of
37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691. the proposed
94 95
94 SUPREME COURT REPORTS ANNOTATED VOL. 50, MARCH 31, 1973 95
Javellana vs. The Executive Secretary Javellana vs. The Executive Secretary
III Constitution to the people”; and 2) Proclamation No. 1102

Has the proposed new or revised Constitution been is null and void “(i)nasmuch as the ratification process”
ratified conformably to said Art. XV of the 1935 prescribed “in the 1935 Constitution was not followed.”
Constitution? Besides adopting substantially some of the grounds
Petitioners in L-36142 maintain the negative view, upon relied upon by the petitioners in the above-mentioned
ground: 1) that the President “is without authority to cases, the petitioners in L-36283 argue that “(t)he creation
create the Citizens’ Assemblies” through which, of the Citizens’ Assemblies as the vehicle for the
respondents maintain, the proposed new Constitution has ratification of the Constitution was a deception upon the
been ratified; 2) that said Assemblies “are without power to people since the President announced the postponement of
approve the proposed Constitution”; 3) that the President the January 15, 1973 plebiscite to either February 19 or
“is without power to proclaim the ratification by the March 5, 1973.”38
Filipino people of the proposed Constitution”; and 4) that The reasons adduced by the petitioners in L-36165 in
“the election held (in the Citizens’ Assemblies) to ratify the favor of the negative view have already been set forth
proposed Constitution was not a free election, hence null earlier in this opinion. Hence, it is unnecessary to
and void.” reproduce them here. So it is, with respect to the positions
Apart from substantially reiterating these grounds taken in L-36165 by counsel for therein respondents Gil J.
support of said negative view, the petitioners in L-36164 Puyat and Jose Roy — although more will be said later
contend: 1) that the President “has no power to call a about them — and by the Solicitor General, on behalf of the
plebiscite for the ratification or rejection” of the proposed other respondents in that case and the respondents in the
new Constitution or “to appropriate funds for the holding of other cases.
the said plebiscite”; 2) that the proposed new or revised 1. What is the procedure prescribed by the 1935
Constitution “is vague and incomplete,” as well as “contains Constitution for its amendment?
provisions which are beyond the powers of the 1971 Under section 1 of Art. XV of said Constitution, three (3)
Convention to enact,” thereby rendering it “unfit for x x x steps are essential, namely:
submission the people”; 3) that “(t)he period of time 1. That the amendments to the Constitution be proposed
between November 1972 when the 1972 draft was approved either by Congress or by a convention called for that
and January 11-15, 1973,” when the Citizens’ Assemblies purpose, “by a vote of three-fourths of all the Members of
supposedly ratified said draft, “was too short, worse still,
the Senate and the House of Representatives voting appointed by the President with the consent of the Commission on
separately,” but “in joint session assembled”; Appointments, who shall hold office for a term of nine years and
2. That such amendments be “submitted to the people may not be reappointed. ...
for their ratification” at an “election”; and “xxx xxx xxx
3. That such amendments be “approved by a majority of “Sec. 2. The Commission on Elections shall have
the votes cast” in said election. exclusive charge of the enforcement and administration of all
Compliance with the first requirement is virtually laws relative to the conduct of elections and shall exercise all
conceded, 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
38 See p. 5 of the Petition. number and location of polling places, and the appointment of
election inspectors and of other election officials. All law
96 enforcement agencies and
97
although the petitioners in L-36164 question the authority
of the 1971 Constitutional Convention to incorporate instrumentalities of the Government, when so required by the
certain provisions into the draft of the new or revised Commission, shall act as its deputies for the purpose of insuring
Constitution. The main issue in these five (5) cases hinges, fee, orderly, and honest elections. The decisions, orders, and
therefore, on whether or not the last two (2) requirements rulings of the Commission shall be subject to review by the
have been complied with. Supreme Court.
2. Has the contested draft of the new or revised “xxx xxx xxx”39
Constitution been submitted to the people for their
ratification conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 a. Who may vote in a plebiscite under Art. V of the
Constitution concerning “elections” must, also, be taken Constitution?
into account, namely, section I of Art. V and Art. X of said Petitioners maintain that section 1 of Art. V of the
Constitution. The former reads: Constitution is a limitation upon the exercise of the right of
suffrage. They claim that no other persons than “citizens of
“Section 1. Suffrage may be exercised by male citizens of the the Philippines not otherwise disqualified by law, who are
Philippines not otherwise disqualified by law, who are twenty-one twenty-one years of age or over and are able to read and
years of age or over and are able to read and write, and who shall write, and who shall have resided in the Philippines for one
have resided in the Philippines for one year and in the year and in the municipality wherein they propose to vote
municipality wherein they propose to vote for at least six months for at least six months preceding the election,” may
preceding the election. The National Assembly shall extend the exercise the right of suffrage in the Philippines. Upon the
right of suffrage to women, if in a plebiscite which shall be held other hand, the Solicitor General contends that said
for that purpose within two years after the adoption of this provision merely guarantees the right of suffrage to persons
Constitution, not less than three hundred thousand women possessing the aforementioned qualifications and none of
possessing the necessary qualifications shall vote affirmatively on the disqualifications, prescribed by law, and that said right
the question.” may be vested by competent authorities in persons
lacking some or all of the aforementioned qualifications,
Sections 1 and 2 of Art. X of the Constitution ordain in
and possessing some of the aforesaid disqualifications. In
part:
support of this view, he invokes the permissive nature of
“Section 1. There shall be an independent Commission on the language — “(s)uffrage may be exercised” — used in
Elections composed of a Chairman and two other Members to be 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 18 or 20, which were rejected, and the residence
citizens of the Philippines “eighteen years of age or over,” qualification, as well as the disqualifications to the exercise
who are registered in the list of barrio assembly members, of the right of suffrage — the second recommendation
shall be members thereof and may participate as such in limiting the right of suffrage to those who could “read and
the plebiscites prescribed in said Act. write” was — in the language of Dr. Jose M. Aruego, one of
I cannot accept the Solicitor General’s theory. Art. V of the Delegates to said Convention — “readily approved in
the Constitution declares who may exercise the right of the Convention without any dissenting vote,” although
suffrage, so that those lacking the qualifications therein there was some debate on whether the Fundamental Law
prescribed may not exercise such right. This view is borne should specify the language or dialect that the voter could
out by the records of
_______________
40 The Framing of the Philippine Constitution, by Aruego, Vol.
_______________
I, p. 215.
39 Italics ours.
41 The Framing of the Philippine Constitution, by Aruego, Vol.
98 I, pp. 215, 221, 227-228.
42 Ibid., pp. 222-224.

VOL. 50, MARCH 31, 1973 99
the Constitutional Convention that drafted the 1935 Javellana vs. The Executive Secretary
Constitution. Indeed, section 1 of Art. V of the 1935
Constitution was largely based on the report of the
read and write, which was decided in the negative.43
committee on suffrage of the Convention that drafted said
What is relevant to the issue before Us is the fact that
Constitution which report was, in turn, “strongly
the constitutional provision under consideration was meant
influenced by the election laws then in force in the
to be and is a grant or conferment of a right to persons
Philippines x x x.”40 Said committee had recommended: 1)
possessing the qualifications and none of the
“That the right of suffrage should exercised only by male
disqualifications therein mentioned, which in turn,
citizens of the Philippines.” 2) “That should be limited to
constitute a limitation of or restriction to said right, and
those who could read and write.” 3) “That the duty to vote
cannot, accordingly, be dispensed with, except by
should be made obligatory.” It appears that the first
constitutional amendment. Obviously, every such
recommendation was discussed extensively in the
constitutional grant or conferment of a right is necessarily
Convention, and that, by way of compromise, it was
a negation of the authority of Congress or of any other
eventually agreed to include, in section 1 of Art. V of the
branch of the Government to deny said right to the subject
Constitution, the second sentence thereof imposing upon
of the grant — and, in this sense only, may the same
the National Assembly established by the original
partake of the nature of a guarantee. But, this does not
Constitution — instead of the bicameral Congress
imply not even remotely, that the Fundamental Law allows
subsequently created by amendment said Constitution —
Congress or anybody else to vest in those lacking the
the duty to “extend the right of suffrage women, if in a
qualifications and having the disqualifications mentioned
plebiscite to, be held for that purpose within two years
in the Constitution the right of suffrage.
after the adoption of this Constitution, not less than three
At this juncture, it is noteworthy that the committee on
hundred thousand women possessing the necessary
suffrage responsible for the adoption of section 1 of Art. V
qualifications shall vote affirmatively on the question.”41
of the Constitution was “strongly influenced by the election
The third recommendation on “compulsory” voting was,
laws then in force in the Philippines.” Our first Election
also debated upon rather extensively, after which it was
Law was Act 1582, passed on January 9, 1907, which was
rejected by the Convention.42 This accounts, in my opinion,
partly amended by Acts 1669, 1709, 1726 and 1768, and
for the permissive language used in the first sentence of
incorporated into the Administrative Code of 1916 — Act
said Art. V. Despite some debates on the age qualification
2657 — as chapter 20 thereof, and then in the
— amendment having been proposed to reduce the same to
Administrative Code of 1917 — Act 2711 — as chapter 18 year prior to the date of the election, or who annually pay thirty pesos or
thereof, which, in turn, was amended by Act 3387, more of the established taxes.
approved on December 3, 1927. Sections 431 and 432 of “(c) Those who are able to read and write either Spanish, English, or a
said Code of 1917, prescribing, respectively, the native language.
qualifications for and disqualifications from voting, are “SEC. 432. Disqualifications. — The following persons shall be
quoted below.44 In all of these legislative acts, the disqualified from voting:
provisions concerning the qualifications of voters partook of “(a) Any person who, since the thirteenth day of August, eighteen
the nature of a grant or recognition of the right of suffrage, hundred and ninety-eight, has been sentenced by final judgment to suffer
and, hence, of a not less than eighteen months of imprisonment, such disability not having
been removed by plenary pardon.
_______________ “(b) Any person who has violated an oath of allegiance taken by him to
43 Id., pp. 224-227. the United States.
44 SEC. 431. Qualifications prescribed for voters. — Every male person “(c) Insane or feeble-minded persons.
“(d) Deaf-mutes who cannot read and write.
who is not a citizen or subject of a foreign power, twenty-one years of age
“(e) Electors registered under subsection (c) of the next preceding
or over, who shall have been a resident of the Philippines for one year and
section who, after failing to make a sworn statement to the satisfaction of
of the municipality in which he shall offer to vote for six months next
the board of inspectors at any of its two meetings for registration and
preceding the day of voting is entitled to vote in all elections if comprised
revision, that they are incapacitated preparing their ballots due to
within either of the
permanent physical disability, present themselves at the hour of voting as
100 incapacitated, irrespective whether such incapacity be real or feigned.”
101
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 twenty-one (21) years to eighteen (18) years, which,
the Constitution, shows beyond doubt than the same however, did not materialize on account of the decision of
conferred — not guaranteed — the authority to persons this Court in Tolentino v. Commission on Elections,
45
having the qualifications prescribed therein and none of granting the writs, of prohibition and injunction therein
disqualifications to be specified in ordinary laws and, applied for, upon the ground that, under the Constitution,
necessary implication, denied such right to those lacking all of the amendments adopted by the Convention should
any said qualifications, or having any of the be submitted in “an election” or a single election, not
aforementioned disqualifications. separately or in several or distinct elections, and that the
This view is further bolstered by the fact that the 1971 proposed amendment sought to be submitted to a plebiscite
Constitutional Convention sought the submission to a was not even a complete amendment, but a “partial
plebiscite of a “partial amendment” to said section 1 of Art. amendment” of said section 1, which could be amended
V of the 1935 Constitution, by reducing the voting age from 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
following three classes:
predicated upon the generally accepted contemporary
“(a) Those who, under the laws in force in the Philippine Islands upon
construction that, under the 1935 Constitution, persons
the twenty-eighth day of August, nineteen hundred and sixteen, were
below twenty-one (21) years of age could not exercise the
legal voters and had exercised the right of suffrage.
right of suffrage, without a previous amendment of the
“(b) Those who own real property to the value of five hundred pesos,
Constitution.
declared in their name for taxation purposes for a period not less than one
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, illogical, if not absurd, believe that Republic Act No. 3590
there seems to be a conflict between the last paragraph of requires, for the most important measures for which it
said section 6 of Rep. Act No. 3590,46 pursuant to which the demands — in addition to favorable action of the barrio
“majority vote of all the barrio assembly members” (which council — the approval of barrio assembly through a
include all barrio residents 18 years of age or over, duly plebiscite, lesser qualifications than those prescribed in
registered in the list of barrio assembly members) is dealing with ordinary measures for which such plebiscite
necessary for the approval, in an assembly plebiscite, of need not be held.
“any budgetary, supplemental appropriations or special tax It is similarly inconceivable that those who drafted the
ordinances,” whereas, according to the paragraph 1935 Constitution intended section 1 of Art. V thereof to
preceding the penultimate one of said section,47 ”(a)ll duly apply only to elections of public officers, not to
registered barrio assembly 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
45 L-34150, October 16 and November 4, 1971. qualifications for such ratification, notwithstanding the
46 “For taking action on any of the above enumerated measures, fact that the object thereof much more important — if not
majority vote of all the barrio assembly members registered in the list of fundamental, such as the basic changes introduced in the
the barrio secretary is necessary.” draft of the revised Constitution adopted by the 1971
47 “All duly registered barrio assembly members qualified to vote may Constitutional Convention, which a intended to be in force
vote in the plebiscite. Voting procedures may be made either in writing as
permanently, or, at least, for many
in regular elections, and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be the same board _______________
envisioned by section 8, paragraph 2 of this Act, in case of vacancies in 48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County,
this body, the barrio council may fill the same.” 113 N.W. 1071; Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v.
Marcus, 160 Wis. 354, 152 N.W. 419.
102
103

VOL. 50, MARCH 31, 1973 103
members qualified to vote” — who, pursuant to section 10
of the same Act, must be citizens “of the Philippines, decades, and to affect the way of life of the nation — and,
twenty-one years of age or over, able to read and write,” and accordingly, demands greater experience and maturity on
residents the barrio “during the six months immediately the part of the electorate than that required for the election
preceding election, duly registered in the list of voters” and of public officers,49 whose average term ranges from 2 to 6
“ otherwise disqualified x x x” — just like the provisions of years.
present and past election codes of the Philippines and Art. It is admitted that persons 15 years of age or over, but
V of the 1935 Constitution — “may vote in the plebiscite.” below 21 years, regardless of whether or not they possessed
I believe, however, that the apparent conflict should the other qualifications laid down in both the Constitution
resolved in favor of the 21-year-old members of the and the present Election Code,50 and of whether or not they
assembly, not only because this interpretation is in accord are disqualified under the provisions of said Constitution
with Art. V the Constitution, but, also, because provisions and Code,51 or those of Republic Act No. 3590,52 have
of a Constitution — particularly of a written and rigid one, participated
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 49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court
been considered sufficiently important to be included in the held that “when a state constitution enumerates and fixes the
Fundamental Law of the land.48 Besides, it would be qualifications of those who may exercise the right of suffrage, the

legislature cannot take from nor add to said qualifications unless the number of people who allegedly voted at the Citizens’
power to do so is conferred upon it by the constitution itself.” Assemblies for exceeded the number of registered
Since suffrage, according to Webster, is a voice given not only in the voters under the Election Code in force in January 1973.
choice of a man for an office or trust, but, also, in deciding a controverted It is thus clear that the proceedings held in such
question, it follows, considering the said ruling in Alcantara, that the Citizens’ Assemblies — and We have more to say on this
constitutional qualifications for voters apply equally to voters in elections point in subsequent pages — were fundamentally irregular,
to public office and to voters in a plebiscite. in that persons lacking the qualifications prescribed in
Similarly, the Revised Election Code provides in its section 2 that all section 1 of
elections of public officers by the people and all votings in connection with
plebiscites shall be conducted in conformity with the provisions of said _______________
Code.
50 Republic Act No. 6388, section 101 of which, in part, provides:
automatically reacquire the right to vote upon expiration of ten years after
“SEC. 101. Qualifications prescribed for a voter.—Every citizen of the
service of sentence unless during such period, he shall have been
Philippines, not otherwise disqualified by law, twenty-one years of age or
sentenced by final judgment to suffer an imprisonment of not less than
over, able to read and write, who shall have resided in the Philippines for
one year.
one year and in the city, municipality or municipal district wherein he
“(b) Any person who has been adjudged by final judgment by competent
proposes to vote for at least six months immediately preceding the
court of having violated his allegiance to the Republic of the Philippines.
election, may vote at any election.
“(c) Insane or feeble-minded persons.
“xxx xxx xxx.”
“(d) Persons who cannot prepare their ballots themselves.”
51 “SEC. 102. Disqualifications.—The following persons shall not be
52 “SEC. 10. x x x
qualified to vote:
“The following persons shall not be qualified to vote:
“(a) Any person who has been sentenced by final judgment to suffer an
“a. Any person who has been sentenced by final judgment to suffer one
imprisonment of not less than one year, such disability not having been
year or more of imprisonment, within two years after service of his
removed by plenary pardon: Provided, however, That any person
sentence;
disqualified to vote under this paragraph shall
“b. Any person who has violated his allegiance to the Republic of the
104 Philippines; and
“c. Insane or feeble-minded persons.”

and voted in the Citizens’ Assemblies that have allegedly

VOL. 50, MARCH 31, 1973 105
ratified the new or revised Constitution drafted by the 1971
Constitutional Convention. Javellana vs. The Executive Secretary
In fact, according to the latest official data, the total
number of registered voters 21 years of age or over in the Art. V of the Constitution were allowed to vote in said
entire Philippines, available in January 1973, was less Assemblies. And, since there is no means by which the
than 12 million. Yet, Proclamation No. 1102 states that invalid votes of those less than 21 years of age can be
14,976,56 “members of all the Barangays (Citizens separated or segregated from those of the qualified voters,
Assemblies) voted for the adoption of the proposed the proceedings in the Citizens’ Assemblies must be
Constitution, as against x x x 743,869 who voted for its considered null and void.53
rejection,” whereas, on the question whether or not the It has been held that “(t)he power to reject an entire poll
people still wanted a plebiscite to be called to ratify the x x x should be exercised x x x in a case where it is
new Constitution, “x x x 14,298,814 answered that there impossible to ascertain with reasonable certainty the true
was no need for a plebiscite and that the vote of the vote,” as where “it is impossible to separate the legal votes
Barangays (Citizens Assemblies) should be considered as a from the illegal or spurious x x x.”54
vote in a plebiscite.” In other words, it is conceded that the In Usman v. Commission on Elections, et al.,55 We held:

“Several circumstances, defying exact description and natural and logical, for, since the early years of the
dependent mainly on the factual milieu of the particular American regime, we had adopted the Australian Ballot
controversy, have the effect of destroying the integrity and System, with its major characteristics, namely, uniform
authenticity of disputed election returns and of avoiding their official ballots prepared and furnished by the Government
prima facie value and character. If satisfactorily proven, and secrecy in the voting, with the advantage of keeping
although in a summary proceeding, such circumstances as alleged records that permit judicial inquiry, when necessary, into
by the affected or interested parties, stamp the election returns the accuracy of the election returns. And the 1935
with the indelible mark of falsity and irregularity, and, Constitution has been consistently interpreted in
consequently, of unreliability, and justify their exclusion from the all plebiscites for the ratification rejection of proposed
canvass.” amendments thereto, from 1935 to 1967. Hence, the viva
voce voting in the Citizens’ Assemblies was and is null and
Then, too, the 1935 Constitution requires “a majority of void ab initio.
the votes cast” for a proposed amendment to the b. How should the plebiscite be held? (COMELEC
Fundamental Law to be “valid” as part thereof, and the supervision indispensable; essential requisites)
term “votes cast” has a well-settled meaning. Just as essential as compliance with said Art. V of the
19 Constitution is that of Art. X thereof, particularly its
“The term ‘votes cast’ x x x was held in Smith v. Renville
sections 1 and 2. Indeed, section 1 provides that “(t)here
County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been
shall be an independent Commission on Elections x x x.”
used as an equivalent of ‘ballots cast.’ ”56“The word ‘cast’ is
The point to be stressed here is the term “independent.”
defined as ‘to deposit formally or officially.’ ”57
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
53 20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also,
answer must be the negative, because the functions of the
Garchitorena v. Crescini, 39 Phil. 258.
Commission — “enforcement and administration” of
54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323,
election laws — are neither legislative nor judicial in
Glenn v. Gnau, 64 S.W. 2d. 168. Italics ours.
nature, and, hence, beyond
55 L-33325 and L-34043, December 29, 1971.
56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours.
57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours. _______________
58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics
ours.
106 107

VOL. 50, MARCH 31, 1973 107

“It seems to us that a vote is cast when a ballot is the field allocated to either Congress or courts of justice.
deposited indicating a ‘choice.’ x x x The word “cast” means “ Said functions are by their nature essentially executive, for
deposit (a ballot) formally or officially x x x.’ which reason, the Commission would be under the “control”
“x x x In simple words, we would define a ‘vote cast’ as the of the President, pursuant to section 10, paragraph (1) of
exercise on a ballot of the choice of the voter on the measure Art. VII of the Constitution, if Art. X thereof did not
proposed.”58 explicitly declare that it (the Commission) is an
“independent” body. In other words, in amending the
In short, said Art. XV envisages — with the term “votes original 1935 Constitution, by inserting therein said Art. X,
cast” — choices made on ballots — not orally or by raising on the Commission on Elections, the purpose was to make
— by the persons taking part in plebiscites. This is but said Commission independent principally of the Chief
Executive.
And the reason therefor is, also, obvious. Prior to the “shall not, during the continuance in office, engage in the
creation of the Commission on Elections as a constitutional practice of any profession or intervene, directly or
organ, election laws in the Philippines were enforced by the indirectly, in the management or control of any private
then Department of the Interior, through its Executive enterprise which in anyway may affected by the functions
Bureau, one of the offices under the supervision and control of their office; nor shall they, directly or indirectly, be
of said Department. The same — like other departments of financially interested in any contract with the Government
the Executive Branch of the Government — was, in turn, or any subdivision or instrumentality thereof.”63 Thus, the
under the control of the Chief Executive, before the framers of the amendment to the original Constitution of
adoption of the 1935 Constitution, and had been — until 1935 endeavored to do everything possible protect and
the abolition of said Department, sometime ago — under insure the independence of each member of the
the control of the President of the Philippines, since the Commission.
effectivity of said Fundamental Law. Under the provisions With respect to the functions thereof as a body, section 2
thereof, the Executive could so use his power of control over of said Art. X ordains that “(t)he Commission on Elections
the Department of the Interior and its Executive Bureau as shall have exclusive charge of the enforcement and
to place the minority party at such a great, if not decisive, administration all laws relative to the conduct of elections,”
disadvantage, as to deprive it, in effect, of the opportunity apart from such other “functions which may be conferred
to defeat the political party in power, and, hence, to enable upon it by law.” It further provides that the Commission
the same to perpetuate itself therein. To forestall this “shall decide, save those involving the right to vote,
possibility, the original 1935 Constitution was amended by all administrative question affecting elections, including
the establishment of the Commission on Elections as a the determination of the number and location of polling
constitutional body independent primarily of the places, and the appointment of election inspectors and of
President of the Philippines. other election officials.” And, to forests possible conflicts or
The independence of the Commission was sought to be frictions between the Commission, on one hand, and the
strengthened by the long term of office of its members — other offices or agencies of the executive department, on
nine (9) years, except those first appointed59 — the longest the other, said section 2 postulates that “(a)ll law
under the Constitution, second only to that of the Auditor enforcement agencies and instrumentalities of the
General60; by Government, when so required by the Commission, shall
act as
_______________
59 Art. X, section 1 of the 1935 Constitution. _______________
60 Ten (10) years. 61 Art. X, section 2 of the 1935 Constitution.
62 Ibid.
108
63 Art. X, section 3 of the 1935 Constitution.
109
VOL. 50, MARCH 31, 1973 109
providing that they may not be removed from office except Javellana vs. The Executive Secretary
by impeachment, placing them, in this respect, on the same
plane as the President, the Vice-President, the Justices of its deputies for the purpose of insuring free, orderly, and
the Supreme Court and the Auditor General; that they may honest elections.” Not satisfied with this, it declares, in
not be reappointed; that their salaries, “shall be neither effect, that “(t)he decisions, orders, and ruling of the
increased nor diminished during their term of office”; that Commission” shall not be subject to review, except by the
the decisions the Commission “shall be subject to review by Supreme Court.
the Supreme Court” only61; that “(n)o pardon, parole, or In accordance with the letter and spirit of said Art. X of
suspension sentence for the violation of any election law the Constitution, Rep. Act No. 6388, otherwise known as
may be granted without the favorable recommendation of the Election Code of 1971, implements the constitutional
the Commission”62; and, that its chairman and members
powers of the Commission on Elections and grants composition and appointment of board of election
additional powers thereto, some of which are enumerated inspectors; the particulars of the official ballots to be used
in sections 5 and 6 of said Act, quoted below.64 Moreover, and the precautions to be taken to insure authenticity
said Act contains, inter alia, detailed provisions regulating thereof; the procedure for the casting of votes; the counting
contributions and other 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
64 “SEC. 5. Organization of the Commission on Elections.—The municipal, provincials and national boards of canvassers;
Commission shall adopt its own rules of procedure. Two members of the the presentation of the political parties and/or their
Commission shall constitute a quorum. The concurrence of two members candidates in each election precinct; the proclamation of
shall be necessary for the pronouncement or issuance of a decision, order the results, including, in the case of election of public
or ruling. officers, election contests; and the jurisdiction of courts of
“The Commission shall have an executive and such other subordinate justice in cases of violation of the provisions of said Election
officers and employees as may be necessary for the efficient performance Code and the penalties for such violations.
of its functions and duties, all of whom shall be appointed by the Few laws may be found with such meticulous and
Commission in accordance with the Civil Service Law and rules. elaborate set of provisions aimed at “insuring free, orderly,
“The executive officer of the Commission, under the direction of the and honest election,” as envisaged in section 2 of Art. X of
Chairman, shall, have charge of the administrative business of the the Constitution. Yet, none of the foregoing constitutional
Commission, shall have the power to administer oaths in connection with and statutory provisions was followed by the so-called
all matters involving the business of the Commission, and shall perform Barangays or Citizens’ Assemblies. And no reasons have
such, other duties as may he required of him by the Commission. been given, or
“SEC. 6. Power of the Commission to Investigate and to Hear
Controversy and Issue Subpoena.—The Commission or any of the _______________
members thereof shall, in compliance with the requirement of due process, controversy submitted to the Commission shall after compliance with the
have the power to summon the parties to a controversy pending before it, requirements of due process be heard and decided by it within thirty days
issue subpoenae and subpoenae duces tecum and otherwise take testimony after submission of the case.
in any investigation or hearing pending before it, and delegate such power “The Commission may, when it so requires, deputized any member of
to any officer of the Commission who shall be a member of the Philippine any national or local law enforcement agency and/or instrumentality of
Bar. In case of failure of a witness to attend, the Commission, upon proof the government to execute under its direct and immediate supervision any
of service of the subpoenae to said witness, may issue a warrant to arrest of its final decisions, orders, instructions or rulings.
the witness land bring him before the Commission or officer before whom “Any decision, order or ruling of the Commission on election
his attendance is required. The Commission shall have the power to controversies may be reviewed by the Supreme Court by writ of a
punish contempts provided for in the Rules of Court under the same certiorari in accordance with the Rules of Court or such applicable laws as
may enacted.
110 “Any violation of any final executory decision, order or ruling of the
Commission shall constitute contempt thereof.”

VOL. 50, MARCH 31, 1973 111
(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 even sought to be given therefor. In many, if not most,
registration of voters, the proceedings therefor, as well as instances, the election were held a viva voce, thus depriving
for the inclusion in, or exclusion or cancellation from said the electorate of the right to vote secretly — one of the
list and the publication thereof; the establishment of most, fundamental and critical features of our election laws
municipal, provincial and files of registered voters; the from time immemorial — particularly at a time when the

same was of utmost importance, owing to the existence of other order or decree has been brought to Our attention,
Martial Law. expressly or impliedly repealing the provisions of
In Glen v. Gnau,65 involving the casting of many votes, Presidential Decree 73, insofar as said procedure is
openly, without complying with the requirements of the concerned.
law pertinent thereto, it was held that the “election Upon the other hand, said General Order No. 20
officers” involved “cannot be too strongly condemned” expressly suspended “the provisions of Section 3 of
therefor and that if they “could legally dispense with such Presidential Decree No. 73 insofar as they allow free public
requirement ... they could with equal propriety dispense discussion of proposed Constitution x x x temporarily
with all of them, including the one that the vote shall be by suspending effects of Proclamation No. 1081 for the
secret ballot, or even by ballot at all x x x.” purposes of free open debate on the proposed Constitution
Moreover, upon the formal presentation to the Executive x x x.” This specific mention of the portions of the decrees
of the proposed Constitution drafted by the 1971 or orders or instructions suspended by General Order No.
Constitutional Convention, or on December 1, 1972, 20 necessarily implies that all other portions of said
Presidential Decree No. 73 (on the validity of which — decrees, orders or instructions — and, hence, the provisions
which was contested in the plebiscite cases, as well as in of Presidential Decree No. 73 outlining the procedure to be
the 1972 habeas corpus cases66 — We need not, in the case followed in the plebiscite for ratification or rejection of the
of bar, express any opinion) was issued, calling a plebiscite, proposed Constitution — remained in force, assuming that
to be held on January 15, 1973, at which the proposed said Decree is valid.
Constitution would be submitted to the people for It is claimed that by virtue of Presidential Decree No.
ratification or rejection; directing the publication of said 86-A — the text of which is quoted below67 — the Executive
proposed Constitution; and declaring, inter alia, that “(t)he declared,
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 67 “PRESIDENTIAL DECREE NO. 86-A
candidates” — “shall apply to the conduct of the plebiscite.” “STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS
Indeed, section 2 of said Election Code of 1971 provides (CITIZENS ASSEMBLIES)
that “(a)ll elections of public officers except barrio officials “WHEREAS, on the basis of preliminary and initial reports from the
and plebiscites shall be field as gathered from barangays (citizens assemblies) have so far been
established, the people would like to decide themselves questions or
_______________ issues, both local and national, affecting their day to day lives and their
65 64 S.W. 2d. 168. future.
66 L-35538, Roses, et al. v. Secretary of National Defense, et al.; L- “WHEREAS, the barangays (citizens assemblies) would like themselves
35539, Diokno v. Hon. Enrile, et al.; L-35540, Soliven, et al. v. Secretary of to be the vehicle for expressing the views of the people on important
National Defense, et al.; L-35546, Aquino, Jr., et al. v. Hon. Enrile, et al.; national issues;
L-35547, Garcia II v. Hon. Enrile, et al.; L-35567 Doronila, et al. v. “WHEREAS, such barangays (citizens assemblies) desire that they be
Secretary of National Defense, et al.; L-35573, Randon v. Hon. Enrile, et given legal status and due recognition as constituting the genuine,
al. legitimate and valid expression of the popular will; and
“WHEREAS, the people would like the citizens assemblies to
112
113

conducted in the manner provided by this Code.” General
Order No. 20, dated January 7, 1973, postponing until inter alia, that the collective views expressed in the
further notice, “the plebiscite scheduled to be held on Citizens’ Assemblies “shall be considered in the
January 15, 1973,” said nothing about the procedure to be formulation of national policies or programs and, wherever
followed in plebiscite to take place at such notice, and no practicable, shall be translated into concrete and specific
decision”; that such Citizens’ Assemblies “shall consider and Community Development immediately thereafter,
vital national issues x x x like the holding of the plebiscite x x x.” As in Presidential Decree No. 86, this Decree No. 86-
on the new Constitution x x x and others in the future, A does not and cannot exclude the exercise of the
which shall serve as guide or basis for action or decision by constitutional supervisory power of the Commission on
the national government”; and that the Citizens’ Elections or its participation in the proceedings in said
Assemblies “shall conduct between January 10 and 15, Assemblies, if the same had been intended to constitute the
1973, a referendum on important national issues, including “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
conduct immediately a referendum on certain specified questions such as Department of Local Governments Community
the ratification of the new Constitution, continuance of martial law, the Development is not necessarily inconsistent with, and must
convening of Congress on January 22, 1973, and the elections in be subordinate to the constitutional power of the
November 1973 pursuant to the 1935 Constitution. Commission on Elections to exercise its “exclusive
“NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the authority over the enforcement and administration of all
Philippines, by virtue of the powers vested in me by the Constitution as laws to the conduct of elections,” if the proceedings in the
Commander-in-Chief of all Armed Forces of the Philippines, do hereby Assemblies would partake of the nature of an “election” or
declare as part of the law of the land the following. plebiscite for the ratification or rejection of the proposed
“1. The present barangays (citizens assemblies) are created under Constitution.
Presidential Decree No. 86 dated December 31, 1972, shall constitute the We are told that Presidential Decree No. 86 was further
base for citizen participation in governmental affairs and their collective amended by Presidential Decree No. 86-B, dated 1973,
views shall be considered in the formulation of national policies or ordering “that important national issues shall from time to
programs and, wherever practicable, shall be translated into concrete and time; be referred to the Barangays (Citizens Assemblies)
specific decision; for resolution in accordance with Presidential Decree No.
“2. Such barangays (citizens assemblies) shall consider vital national 86-A dated January 5, 1973 and that the initial referendum
issues now confronting the country, like the holding of the plebiscite on include the matter of ratification of the Constitution by the
the new Constitution, the continuation of martial rule, the convening of 1971 Constitutional Convention” and that “(t)he Secretary
Congress on January 22, 1973, and the holding of elections in November of the Department of Local Governments and Community
1973, and others in the future, which shall serve as guide or basis for Development shall insure the implementation of this
action or decision by the national government; order.” As in the case of Presidential Decrees Nos. 86 and
“3. The barangays (citizens assemblies) shall conduct between January
86-A, the foregoing directives do not necessarily exclude
10 and 15, 1973, a referendum on important national issues, including
exercise of the powers vested by the 1935 Constitution in
those specified in paragraph 2 hereof, and submit the results thereof to
the Commission on Elections, even if the Executive had the
the Department of Local Governments and Community Development
authority to repeal Art. X of our Fundamental Law —
immediately thereafter, pursuant to the express will of the people as
which he does not possess. Copy of Presidential Decree No.
reflected in the reports gathered from the many thousands of barangays
86-B is appended hereto as Annex B hereof.
(citizens assemblies) throughout the country.
The point is that, such of the Barrio Assemblies as were
“4. This Decree shall take effect immediately.
held took place without the intervention of the Commission
“Done in the City of Manila, this 5th day of January, in the year of Our
on Elections, and without complying with the provisions of
Lord, nineteen hundred and seventy-three.” (Italics ours.)
the Election Code of 1971 or even of those of Presidential
Decree
114
115

VOL. 50, MARCH 31, 1973 115
those specified in paragraph 2 hereof, and submit the

No. 73. What is more, they were held under the
results thereof to the Department of Local Governments
supervision of the very officers and agencies of the Executive
Department sought to be excluded therefrom by Art. X of enrolled bill; that the proposed Constitution has been, in
the 1935 Constitution. Worse still, said officers and fact, ratified, approved or adopted by the “overwhelming”
agencies of the 1935 Constitution would be favored thereby, majority of the people; that Art. XV of the 1935
owing to the practical indefinite extension of their Constitution has thus been “substantially” complied with;
respective terms of office in consequence of section 9 of the and that the Court refrain from passing upon the validity
Transitory Provisions, found in Art. XVII of the proposed of Proclamation No. 1102, not only because such question is
Constitution, without any elections therefor. And the political in nature, but, also, because should the Court
procedure therein mostly followed is such that there is no invalidate the proclamation, the former would, in effect,
reasonable means of checking the accuracy of the returns veto the action of the people in whom sovereignty resides
files by the officers who conducted said plebiscites. This is and from its power are derived.
another patent violation of Art. of the Constitution which The major flaw in this process of rationalization is that
can hardly be sanctioned. And, since the provisions of this it assumes, as a fact, the very premise on which it is
article form part of the fundamental scheme set forth in predicated, and which, moreover, is contested by the
the 1935 Constitution, as amended, to insure the “free, petitioners. As the Supreme Court of Minnessota has aptly
orderly, and honest” expression of the people’s will, the put it —
aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens’ “x x x every officer under a constitutional government must act
Assemblies, insofar as the same are claimed to have according to law and subject to its restrictions, and every
ratified the revised Constitution proposed by the 1971 departure therefrom or disregard thereof must subject him to the
Constitutional Convention. “x x x (a)ll the authorities restraining and controlling of the people, acting through the
agree that the legal definition of an election, as well as that agency of the judiciary; for it must be remembered that the people
which is usually and ordinarily understood by the term, is act through courts, as well as through the executive or the
a choosing or as election by those having a right to Legislature. One department is just as representative as the
participate (in the selection) of those who shall fill the other, and the judiciary is the department which is charged with
offices, or of the adoption or rejection of any public measure the special duty of determining the limitations which the law
affecting the territory involved. 15 Cyc. 279; Lewis v. places upon all official action. x x x.”
Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13
Accordingly, the issue boils downs to whether or not the
Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W.
Executive acted within the limits of his authority when he
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.68 117
_______________ VOL. 50, MARCH 31, 1973 117

68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Italics ours.
116
certified in Proclamation No. 1102 “that the Constitution

116 SUPREME COURT REPORTS ANNOTATED 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)
IV throughout the Philippines and has thereby come into
Has the proposed Constitution aforementioned been effect.”
approved by a majority of the people in Citizens’ Assemblies In this connection, it is not claimed that the Chief
allegedly held throughout the Philippines? Executive had personal knowledge of the data he certified
Respondents maintain the affirmative, relying upon in said proclamation. Moreover, Art. X of the 1935
Proclamation No. 1102, the validity of which is precisely Constitution was precisely inserted to place beyond the
being contested by petitioners herein. Respondents claim Executive the power to supervise or even exercise
that said proclamation is “conclusive” upon this Court, or any authority whatsoever over “all laws relative to the
is, at least, entitled to full faith and credence, as an
conduct of elections,” and, hence, whether the elections are National Association or Federation of Presidents of any
for the choice or selection of public officers or for the such provincial or city associations.
ratification or rejection of any proposed amendment, or Secondly, at the conclusion of the hearing of these cases
revision of the Fundamental Law, since the proceedings for February 16, 1973, and in the resolution of this Court of
the latter are, also, referred to in said Art. XV as same date, the Solicitor General was asked to submit,
“elections.” together with his notes on his oral argument, a true copy of
The Solicitor General stated, in his argument before this aforementioned report of Mr. Cruz to the President and of
Court, that he had been informed that there was in each “(p)roclamation, decree, instruction, order, regulation or
municipality a municipal association of presidents of the circular, if any, creating or directing or authorizing
citizens’ assemblies for each barrio of the municipality; that creation, establishment or organization” of said municipal,
the president of each such municipal association formed provincial and national associations, but neither a copy of
part of a provincial or city association of presidents of such alleged report to the President, nor a copy of any
municipal associations; that the president of each one of “(p)roclamation, decree, instruction, order, regulation or
these provincial or city associations in turn formed part of circular,” has been submitted to this Court. In the absence
a National Association or Federation of Presidents of such of said report, “(p)roclamation, decree, instruction,” etc.,
Provincial or City Associations; and that one Francisco Proclamation No. 1102 is devoid of any factual and legal
Cruz from Pasig, Rizal, as President of said National foundation. Hence, the conclusion set forth in the
Association or Federation, reported to the President of the dispositive portion of said Proclamation No. 1102, to the
Philippines, in the morning of January 17, 1973, the total effect that the proposed new or revised Constitution had
result of the voting in the citizens’ assemblies all over the been ratified by majority of the votes cast by the people,
country from January 10 to January 15, 1973. The Solicitor can not possibly have any legal effect or value.
General further intimated that the said municipal The theory that said proclamation is “conclusive upon
associations had reported the results of the citizens’ Court is clearly untenable. If it were, acts of the Executive
assemblies in their respective municipalities to the and those of Congress could not possibly be annulled or
corresponding Provincial Association, which, in turn, invalidated by courts of justice. Yet, such is not the case. In
transmitted the results of the voting in the to the fact, even a resolution of Congress declaring that a given
Department of Local Governments and Community person has been elected President or Vice-President of the
Development, which tabulated the results of the voting in Philippines as
the citizens’ assemblies throughout the Philippines and
119
then turned them over to Mr. Francisco Cruz, as President
or acting
VOL. 50, MARCH 31, 1973 119
118

provided in the Constitution,69 is not conclusive upon the
Javellana vs. The Executive Secretary courts. It is no more than prima facie evidence of what is
attested to by said resolution.70 If assailed directly in
President of the National Association or Federation, appropriate proceedings, such as an election protest, if and
whereupon Mr. Cruz, acting in a ceremonial capacity, when authorized by law, as it is in the Philippines, the
reported said results (tabulated by the Department of Court may receive evidence and declare, in accordance
Governments and Community Development) to the Chief therewith, who was duly elected to the office involved.71 If
Executive, who, accordingly, issued Proclamation No. 1102. prior to the creation of the Presidential Electoral Tribunal,
The record shows, however, that Mr. Cruz was not even no such protest could be filed, it was not because the
a member of any barrio council since 1972, so that he could resolution of Congress declaring who had been elected
possibly have been a member on January 17, 1973, of a President or Vice-President was conclusive upon courts of
municipal association of presidents of barrio or ward justice, but because there was no law permitting the filing
citizens’ assemblies, much less of a Provincial, City or 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 said Court. “The district court found that the amendment
revised or new Constitution has been ratified by a majority had no in fact been adopted, and on this appeal” the
of the votes cast therefor, may be duly assailed in court Supreme Court was “required to determine the
and be the object of judicial inquiry, in direct proceedings correctness of that conclusion.”
therefor — such as the cases at bar — and the issue raised Referring to the effect of the certification of the State
therein may and should be decided in accordance with the Board of Canvassers created by the Legislature and of the
evidence presented. proclamation made by the Governor based thereon, the
The case of In re McConaughy72 is squarely in point. “As Court held: “It will be noted that this board does no more
the Constitution stood from the organization of the state” than tabulate the reports received from the various county
— of Minnessota — “all taxes were required to be raised board and add up and certify the results. State v. Mason,
under the system known as the ‘general property tax.’ 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is
Dissatisfaction with the results of this method and the settled law that the decisions of election officers, and
development of more scientific and satisfactory methods of canvassing boards are not conclusive and that the final
raising revenue induced decision must rest with the courts, unless the law declares
that the decisions of the board shall be final” — and there
_______________ is no such law in the cases at bar. “x x x The correctness of
69 Art. VII, section 2, 1935 Constitution. the conclusion of the state board rests upon the correctness
70 Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State of the returns made by the county boards and it is
ex rel. Sathre v. Bryne, 258 N.W. 121; State ex rel. Shriver v. Hayes, 76 inconceivable that it was intended that this statement of
N.E. 2d. 869; Smith v. Bangham, 76 p 2d. 1022. McKim v. Brast, 117 S.E. result should be final and conclusive regardless of the
875; Head v. Wood, 107 So. 854; State ex rel. Watson v. Pigg, 46 N.E. 2d. actual facts. The proclamation of the Governor adds
232. nothing in the way of conclusiveness to the legal effect of
71 See cases cited in the preceding footnote. See, also, Tiegs v. the action of the canvassing board. Its purpose is to
Patterson, 318 P. 2d. 588; State ex rel. Brown v. St. Joseph Circuit Court, formally notify the people of the state of the result of the
95 N.E. 2d. 632; Williamson v. State Election Board, 431 P. 2d. 352, Baker voting as found by the canvassing board. James on Const.
v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State ex rel. Mitchell Conv. (4th Ed.) sec. 523.”
v. Walcott, 83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board In Bott v. Wartz,73 the Court reviewed the statement of
of Elections of Stark County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. results of the election made by the canvassing board, in
47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W. 2d. 1; order that the true results could be judicially determined.
Galloway v. Bradburn, 82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d. 994. And so did
72 106 Minn 392, 119 N.W. 408, 409.
_______________
120
73 63 N.J. Law, 289, cited in In re McConaughy, supra.
121
VOL. 50, MARCH 31, 1973 121
the Legislature to submit to the people an amendment to Javellana vs. The Executive Secretary
the Constitution which provided merely that taxes shall be
uniform upon the same class of subjects. This proposed the court in Rice v. Palmer.74
amendment was submitted at the general election held in Inasmuch as Art. X of the 1935 Constitution places
November, 1906, and in due time it was certified by the under the “exclusive” charge of the Commission on
state canvassing board and proclaimed by the Governor as Elections, “the enforcement and administration of all laws
having been legally adopted. Acting upon the assumption relative to the conduct of elections,” independently of the
that the amendment had become a part of the Constitution, Executive, and there is not even a certification by the
the Legislature enacted statutes providing for a State Tax Commission in support of the alleged results of the citizens’
Commission and a mortgage registry tax, and the latter assemblies relied upon in Proclamation No. 1102 — apart
statute, upon the same theory, was held constitutional” by
from the fact that on January 17, 1973 neither the alleged prepared to say whether or not the majority of the people or
president of the Federation of Provincial or City Barangays of those who took part in the Citizens’ Assemblies have
nor the Department of Local Governments had certified to assented to the proposed Constitution, the logical step
the President the alleged result of the citizens’ assemblies would be to give due course to these cases, require the
all over the Philippines — it follows necessarily that, from respondents to file their answers, and the plaintiffs their
a constitutional and legal viewpoint, Proclamation No. reply, and, thereafter, to receive the pertinent evidence and
1102 is not even prima facie evidence of the alleged then proceed to the determination of the issues raised
ratification of the proposed Constitution. thereby. Otherwise, we would be placing upon the
Referring particularly to the cases before Us, it will be petitioners the burden of disproving a defense set up by the
noted that, as pointed out in the discussion of the preceding respondents, who have not so far established the truth of
topic, the new or revised Constitution proposed by the 1971 such defense.
Constitutional Convention was not ratified in accordance Even more important, and decisive, than the foregoing is
with the provisions of the 1935 Constitution. In fact, it has the circumstance that there is ample reason to believe that
not even been, ratified in accordance with said proposed many, if not most, of the people did not know that the
Constitution, the minimum age requirement therein for the Citizens’ Assemblies were, at the time they were held,
exercise of the right of suffrage being eighteen (18) years, plebiscites for the ratification or rejection of the proposed
apart from the fact that Art. VI of the proposed Constitution. Hence, in Our decision in the plebiscite cases,
Constitution requires “secret” voting, which was not We said, inter alia:
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 “Meanwhile, or on December 17, 1972, the President had
election or plebiscite called for the ratification of an issued an order temporarily suspending the effects of
amendment or revision of the first Constitution or the Proclamation No. 1081, for the purpose of free and open debate on
effectivity of the proposed Constitution, and the phrase the Proposed Constitution. On December 23, the President
“votes cast” has been construed to mean “votes made in announced the postponement of the plebiscite for the ratification
writing not orally, as it was in many Citizens’ Assemblies.75 or rejection of the Proposed Constitution. No formal action to this
Even counsel for Gil J. Puyat and Jose Roy, as effect was taken until January 7, 1973, when General Order No.
respondents in L-36165, asserts openly that Art. XV of the 20 was issued, directing ‘that the plebiscite scheduled to be held
Constitution has not been complied with, and since the on January 15, 1973, be postponed until further notice.’ Said
alleged substantial compliance with the requirements General Order No. 20, moreover, ‘suspended in the meantime’ the
thereof partakes of 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
74 78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.
aforementioned plebiscite, the Court deemed it fit to refrain, for the
75 See cases listed on pages 105-106, footnotes 56, 57 and 58.
time being, from deciding the aforementioned cases, for neither the
122 date nor the conditions under which said plebiscite would be held
were known or announced officially. Then again, Congress was,

VOL. 50, MARCH 31, 1973 123
nature of a defense set up by the other respondents in Javellana vs. The Executive Secretary
these cases, the burden of proving such defense — which, if
true, should be within their peculiar knowledge — is pursuant to the 1935 Constitution, scheduled to meet in regular
clearly on such respondents. Accordingly, if despite the session on January 22, 1973, and since the main objection to
extensive notes and documents submitted by the parties Presidential Decree No. 73 was that the President does not have
herein, the members of the Court do not know or are not 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 “[3] Do you like Congress again to hold sessions?
— reportedly after consultation with, among others, the leaders of “[4] Do you like the plebiscite to be held later?
Congress and the Commission on Elections — the Court deemed it “[5] Do you like the way President Marcos is running the affairs
more imperative to defer its final action on these cases.” of the government? [Bulletin Today, January 10, 1973; emphasis
an additional question.]
“[6] Do you approve of the citizens assemblies as the base of
And, apparently, the parties in said cases entertained popular government to decide issues of national interests?
the same belief, for, on December 23, 1972 — four (4) days “[7] Do you approve of the new Constitution?
after the last hearing of said cases76 — the President “[8] Do you want a plebiscite to be called to ratify the new
announced the postponement of the plebiscite scheduled by Constitution?
Presidential Decree No. 73 to be held on January 15, 1973, “[9] Do you want the elections to be held in November, 1973 in
after consultation with the Commission on Elections and accordance with the provisions of the 1935 Constitution?
the leaders of Congress, owing to doubts on the sufficiency “[10] If the elections would not be held, when do you want the
of the time available to translate the proposed Constitution next elections to be called?
into some local dialects and to comply with some pre- “[11] Do you want martial law to continue?” [Bulletin Today,
electoral requirements, as well as to afford the people a January 11, 1973]
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, To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11
postponing said plebiscite “until further notice.” How can are not proper in a plebiscite for the ratification of a
said postponement be reconciled with the theory that the proposed Constitution or of a proposed amendment thereto.
proceedings in the Citizens’ Assemblies scheduled to be Secondly, neither is the language of question No. 7 — “Do
held from January 10 to January 15, 1973, were you approve the new Constitution?” One approves “of” the
“plebiscites,” in effect, accelerated, according to the theory act of another which does not need such approval for the
of the Solicitor General, for the ratification of the proposed effectivity of said act, which the first person, however, finds
Constitution? If said Assemblies were meant to be the to be good, wise satisfactory. The approval of the majority
plebiscites or elections envisaged in Art. XV of the of the votes cast in plebiscite is, however, essential for an
Constitution, what, then, was the “plebiscite”postponed by amendment to the Constitution to be valid as part thereof.
General Order No. 20? Under these circumstances, it was Thirdly, if the proceedings in the Citizens’ Assemblies
only reasonable for the people who attended such constituted a plebiscite question No. 8 would have been
assemblies to believe that the same were not an “election” unnecessary and improper, regardless of whether question
or plebiscite for the ratification or adoption of said proposed No. 7 were answered affirmatively or negatively. If the
Constitution. majority of the answers to question No. 7 were in the
And, this belief is further bolstered up by the questions affirmative, the proposed Constitution would have become
propounded in the Citizens’ Assemblies, namely: effective and no other

125
“[1] Do you like the New Society?
VOL. 50, MARCH 31, 1973 125

_______________
76 On December 19, 1972.
124
plebiscite could be held thereafter in connection therewith,
even if the majority of the answers to question No. 8 were,
124 SUPREME COURT REPORTS ANNOTATED also, in the affirmative. If the majority of the answers to
Javellana vs. The Executive Secretary 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
“[2] Do you like the reforms under martial law? more than one plebiscite could be held for the ratification or
rejection of the proposed Constitution. In short, the “x x x As to our people, in general, their enthusiastic
insertion of said two (2) questions — apart from the other participation showed their preference and readiness to accept this
questions adverted to above — indicates strongly that the new method of government to people consultation in shaping up
proceedings therein did not partake of the nature of a government policies.”
plebiscite or election for the ratification or rejection of the
proposed Constitution.
Indeed, I can not, in good conscience, declare that the Thus, as late as January 10, 1973, the Bataan officials
proposed Constitution has been approved or adopted by the had to suspend ”all scheduled Citizens’ Assembly meetings
people in the citizens’ assemblies all over the Philippines, ...” and call all available officials “x x x to discuss with
when it is, to my mind, a matter of judicial knowledge that them the new set of guidelines and materials to be used
there have been no such citizens’ assemblies in many parts x x x.” Then, “on January 11 x x x another instruction from
of Manila and suburbs, not to say, also, in other parts of the top was received to include the original five questions
the Philippines. In a letter of Governor Efren B. Pascual of among those be discussed and asked in the Citizens’
Bataan, dated January 15, 1973, to the Chief Executive, Assembly meetings. With this latest order, we again had to
the former reported: make modifications in our instructions to all those
managing and supervising holding of the Citizens’
Assembly meetings throughout province. x x x As to our
“x x x This report includes a resumee (sic) of the activities we people, in general, their enthusiastic participation showed
undertook in effecting the referendum on the eleven questions you their preference and readiness to accept the new method of
wanted our people consulted on and the Summary of Results government to people consultation in shaping
thereof for each municipality and for the whole province. up government policies.”
“xxx xxx xxx This communication manifestly shows: 1) that, as late a
“x x x Our initial plans and preparations, however, dealt only January 11, 1973, the Bataan officials had still to discuss—
on the original five questions. Consequently, when we received an not put into operation — means and ways to carry out the
instruction on January 10 to change the questions, we urgently changing instructions from the top on how to organize the
suspended all scheduled Citizens Assembly meetings on that citizens’ assemblies, what to do therein and even what
day and called all Mayors, Chiefs of Offices and other government questions or topics to propound or touch in said assemblies;
officials to another conference to discuss with them the new set of 2) that the assemblies would involve no more than
guidelines and materials to be used. consultations or dialogues between people and government
“On January 11, x x x another instruction from the top was — not decisions be made by the people; and 3) that said
received to include the original five questions among those to be consultations were aimed only at “shaping up government
discussed and asked in the Citizens’ Assembly meetings. With policies” and, hence could not, and did not, partake of the
this latest order, we again had to make modifications in our nature of a plebiscite for the ratification or rejection of a
instructions to all those managing and supervising the holding of proposed amendment of a new or revised Constitution for
the Citizens’ Assembly meetings throughout the province. x x x the latter does not entail the formulation of a policy of the
Aside from the Government, but the making of decision by the people on
the new way of life, as a nation, they
126
127
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
wish to have, once the proposed Constitution shall have
Department of Education, PC and PACD personnel, provided us
been ratified.
with enough hands to trouble shoot and implement sudden
If this was the situation in Bataan — one of the
changes in the instructions anytime and anywhere needed. x x x
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 offices under the Executive Department. In a sense, the
Luzon, in the Bicol region, in the Visayan Islands and latter performs some functions which, from a constitutional
Mindanao. In fact, several members of the Court, including viewpoint, are politics in nature, such as in recognizing a
those of their immediate families and their household, new state or government, in accepting diplomatic
although duly registered voters in the area of Greater representatives accredited to our Government, and even in
Manila, were not even notified that citizens’ assemblies devising administrative means and ways to better carry
would be held in the places where their respective into effect. Acts of Congress which define the goals or
residences were located. In the Prohibition and objectives thereof, but are either imprecise or silent on the
Amendment case,77 attention was called to the “duty cast particular measures to be resorted to in order to achieve
upon the court of taking judicial cognizance of anything the said goals or delegate the power to do so, expressly or
affecting the existence and validity of any law or portion of impliedly, to the Executive. This, notwithstanding, the
the Constitution x x x.” In line with its own pronouncement political organ of a government that purports to be
in another case, the Federal Supreme Court of the United republican is essentially the Congress or Legislative
States stressed, in Baker v. Carr,78 that “a court is not at Department. Whatever may be the functions allocated to
liberty to shut its eyes to an obvious mistake, when the the Executive Department — specially under a written,
validity of the law depends upon the truth of what is rigid Constitution with a republican system of Government
declared.” like ours — the role of that Department is inherently,
In the light of the foregoing, I cannot see how the basically and fundamentally executive in nature — to “take
question under consideration can be answered or resolved care that the laws be faithfully executed,” in the language
otherwise than in the negative. of our 1935 Constitution.79
V Consequently, I am not prepared to concede that the
Have the people acquiesced in the proposed Constitution? acts the officers and offices of the Executive Department, in
It is urged that the present Government of the line with Proclamation No. 1102, connote a recognition
Philippines is now and has been run, since January 17, thereof o an acquiescence thereto. Whether they recognized
1971, under the Constitution drafted by the 1971 the proposed Constitution or acquiesce thereto or not is
Constitutional Convention; that the political department of something that cannot legally, much less necessarily or
the Government has recognized said revised Constitution; even normally, be deduced from their acts in accordance
that our foreign relations are being conducted under such therewith, because they are bound to obey and act in
new or revised Constitution; that the Legislative conformity with the orders of the President, under whose
Department has recognized the same; and that the people, “control” they are, pursuant to the 1935 Constitution. They
in general, have, by their acts or omissions, 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
77 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. and instructions issued by the President thereafter, he had
2d. 223, 228; Harris v. Shanahan, 387 P. 2d. 771, 784, 785. assumed all powers of Government — although some
78 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, question his authority to do so — and, consequently, there
264 U.S. 543, 547, 548, 68 L. ed. 841, 843, 44 S. Ct. 405. is hardly anything he has done since the issuance of
Proclamation No. 1102, on January 17, 1973 — declaring
that the Constitution
128
_______________
79 Art. VII, section 10, paragraph (1).
129
indicated their conformity thereto. VOL. 50, MARCH 31, 1973 129
As regards the so-called political organs of the Javellana vs. The Executive Secretary
Government, gather that respondents refer mainly to the
proposed by the 1971 Constitutional Convention has been 3. The “individual oaths of its members to support it,
ratified by the overwhelming majority of the people — that and by its having been engaged for nearly a year, in
he could not do under the authority he claimed to have legislating under it and putting its provisions
under Martial Law, since September 21, 1972, except the into operation x x x”;
power of supervision over inferior courts and its personnel, 4. The “judiciary in taking the oath prescribed thereby to
which said proposed Constitution would place under the support it and by enforcing its provisions x x x”; and
Supreme Court, and which the President has not ostensibly 5. The “people in their primary capacity by peacefully
exercised, except as to some minor routine matters, which accepting it and acquiescing in it, by registering as voters
the Department of Justice has continued to handle, this under it to the extent of thousands throughout the State,
Court having preferred to maintain the status quo in and by voting, under its provisions, at a general election for
connection therewith pending final determination of these their representatives in the Congress of the United States.”
cases, in which the effectivity of the aforementioned Note that the New Constitution of Virginia, drafted by a
Constitution is disputed. convention whose members were elected directly by the
Then, again, a given department of the Government people, was not submitted to the people for ratification or
cannot generally be said to have “recognized” its own acts. rejection thereof. But, it was recognized, not by the
Recognition normally connotes the acknowledgment by a convention itself, but by other sectors of the Government,
party of the acts of another. Accordingly, when a namely, the Governor; the Legislature — not merely by
subordinate officer or office of the Government complies individual acts of its members, but by formal joint
with the commands of a superior officer or office, under resolution of its two (2) chambers; by the judiciary; and by
whose supervision and control he or it is, the former the people, in the various ways specified above. What is
merely obeys the latter. Strictly speaking, and from a legal more, there was no martial law. In the present cases,
and constitutional viewpoint, there is no act of recognition none of the foregoing acts of acquiescence was present.
involved therein. Indeed, the lower officer or office, if he or Worse still, there is martial law, the strict enforcement of
it acted otherwise, would just be guilty of insubordination. which was announced shortly before the alleged citizens’
Thus, for instance, the case of Taylor v. Commonwealth assemblies. To top it all, in the Taylor case, the effectivity
80
— cited by respondents herein in support of the theory of of the contested amendment was not contested judicially
the people’s acquiescence — involved a constitution until about one (1) year after the amendment had been put
ordained in 1902 and “proclaimed by a convention duly into operation in all branches of the Government, and
called by a direct vote of the people of the state to revise complied with by the people who participated in the
and amend the Constitution of 1869. The result of the work elections held pursuant to the provisions of the new
of that Convention has been recognized, accepted and acted Constitution. In the cases under consideration, the legality
upon as the only valid Constitution of the State” by — of Presidential Decree No. 73 calling a plebiscite to be held
1. The “Governor of the State in swearing fidelity to it on January 15, 1973, was impugned as early as December
and proclaiming it, as directed thereby”; 7, 1972, or five (5) weeks before the scheduled plebiscite,
2. The “Legislature in its formal official act adopting a whereas the validity of Proclamation No. 1102 declaring on
joint resolution, July 15, 1902, recognizing the January 17, 1973, that the proposed Constitution had been
Constitution ordained by the Convention x x x”; 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
80 101 Va. 529, 44 S.E. 754. 20, 1973, when L-36142 was filed, or three (3) days after
the issuance of Proclamation No. 1102.
130
131

VOL. 50, MARCH 31, 1973 131

It is further alleged that a majority of the members of Javellana vs. The Executive Secretary
our House of Representatives and Senate have acquiesced
in the new or revised Constitution, by filing written Then, in its issue of December 29, 1972, the same paper
statements opting to serve in the Ad Interim Assembly imputed to the Executive an appeal “to diverse groups
established in the Transitory Provisions of said involved in a conspiracy to undermine” his powers” under
Constitution. Individual acts of recognition by members of martial law to desist from provoking a constitutional crisis
our legislature, as well as of other collegiate bodies under x x x which may result in the exercise by me of authority I
the government, are invalid as acts of said legislature or have not exercised.”
bodies, unless its members have performed said acts in No matter how good the intention behind these
session duly assembled, or unless the law provides statement may have been, the idea implied therein was too
otherwise, and there is no such law in the Philippines. This clear and ominous for any member of Congress who
is a well-established principle of Administrative Law and of thought of organizing, holding or taking part in a session of
the Law of Public Officers, and no plausible reason has Congress, not to get the impression that he could hardly do
been adduced to warrant departure therefrom.81 so without inviting or risking the application of Martial
Indeed, if the members of Congress were generally Law to him. Under these conditions, I do not feel justified
agreeable to the proposed Constitution, why did it become in holding that the failure of the members of Congress to
necessary to padlock its premises to prevent its meeting in meet since January 22, 1973, was due to their recognition,
session on January 22, 1973, and thereafter as provided in acquiescence in or conformity with the provisions of the
the 1935 Constitution? It is true that, theoretically, the aforementioned Constitution, or its alleged ratification.
members of Congress, if bent on discharging their functions For the same reasons, especially because of
under said Constitution, could have met in any other place, Proclamation No. 1081, placing the entire Philippines
the building in which they perform their duties being under Martial Law, neither am I prepared to declare that
immaterial to the legality of their official acts. The force of the people’s inaction as regards Proclamation No. 1102,
this argument is, however, offset or dissipated by the fact and their compliance with a number of Presidential orders,
that, on or about December 27, 1972, immediately after a decrees and/or instructions — some or many of which have
conference between the Executive, on the one hand, and admittedly had salutary effects — issued subsequently
members of Congress, on the other, some of whom thereto amounts, constitutes or attests to a ratification,
expressed the wish to meet in session on January 22, 1973, adoption or approval of said Proclamation No. 1102. In the
as provided in the 1935 Constitution, a Daily Express words of the Chief Executive, “martial law connotes power
columnist (Primitivo Mijares) attributed to Presidential of the gun, meant coercion by the military, and
Assistant Guillermo de Vega a statement to the effect that compulsion and intimidation.”83 The failure to use the gun
“ ‘certain members of the Senate appear to be missing the against those who comply with the orders of the party
point in issue’ when they reportedly insisted on taking up wielding the weapon does not detract from the intimidation
first the question of convening Congress.” The Daily Express that Martial Law necessarily connotes. It may reflect the
of that date,82 likewise, headlined, on its front page, a good, reasonable and wholesome attitude of the person who
“Senatorial Plot Against ‘Martial Law Government’ has the gun, either pointed at others, without pulling the
Disclosed.” 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
81 Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. obedience of the people, under these conditions, is not
669; 62 C.J.S. 749-750; Guevara v. Inocentes, L-25577, March 15, 1966. necessarily an act of conformity or acquiescence. This is
82 Which, in some respects, is regarded as an organ of the specially so when we consider that the masses are, by and
Administration, and the news items published therein are indisputably
censored by the Department of Public Information. _______________
83 Daily Express, November 29, 1972, p. 4. Italics ours.
132
133

VOL. 50, MARCH 31, 1973 133

large, unfamiliar with the parliamentary system, the new
form of government introduced in the proposed Citizens Assemblies allegedly held all over the Philippines
Constitution, with the particularity that it is not even — and the records do not show that any such certification,
identical to that existing in England and other parts of the to the President of the Philippines or to the President
world, and that even experienced lawyers and social Federation or National Association of presidents of
scientists find it difficult to grasp the full implications of Provincial Associations of presidents of municipal
some provisions incorporated therein. association presidents of barrio or ward assemblies of
As regards the applicability to these cases of the citizens — would not, legally and constitutionally, be worth
“enrolled bill” rule, it is well to remember that the same the paper on which it is written. Why? Because said
refers to a document certified to the President — for his Department Secretary is not the officer designated by law
action under the Constitution — by the Senate President to superintend plebiscites or elections held for the
and the Speaker of the House of Representatives, and ratification or rejection of a proposed amendment or
attested to by the Secretary of the Senate and the revision of the Constitution and, hence, to tabulate the
Secretary of the House of Representatives, concerning results thereof. Worse still, it is the department which,
legislative measures approved by the two Houses of according to Article X of the Constitution, should not and
Congress. The argument of the Solicitor General is, must not be all participate in said plebiscite — if plebiscite
roughly, this: If the enrolled bill is entitled to full faith and there was.
credence and, to this extent, it is conclusive upon the After citing approvingly its ruling in United States v.
President and the judicial branch of the Government, why Sandoval,84 the Highest Court of the United States that
should Proclamation No. 1102 merit less consideration courts “will not stand impotent before an obvious instance
than in enrolled bill? of a manifestly unauthorized exercise of power.”85
Before answering this question, I would like to ask the I cannot honestly say, therefore, that the people
following: If, instead of being certified by the impliedly or expressly indicated their conformity to the
aforementioned officers of Congress, the so-called enrolled proposed Constitution.
bill were certified by, say, the President of the Association VI
of Sugar Planters and/or Millers of the Philippines, and the Are the Parties entitled to any relief?
measure in question were a proposed legislation concerning Before attempting to answer this question, a few words
Sugar Plantations and Mills sponsored by said Association, be said about the procedure followed in these five (5) cases.
which even prepared the draft of said legislation, as well as In this connection, it should be noted that the Court has
lobbied actually for its approval, for which reason the not decided whether or not to give due course to the
officers of the Association, particularly, its aforementioned petitions herein or to require the respondents to answer
president — whose honesty and integrity are thereto. Instead, it has required the respondents to
unquestionable — were present at the deliberations in comment on the respective petitions — with three (3)
Congress when the same approved the proposed legislation, members of the voting to dismiss them outright — and
would the enrolled bill rule apply thereto? Surely, the then considers comments thus submitted by the
answer would have to be in the negative. Why? Simply, respondents as motions to dismiss, as well as set the same
because said Association President has absolutely no for hearing. This was due to
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 84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
Department of Local Governments and Community 85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.
Development about the tabulated results of the voting in
135
the
134

VOL. 50, MARCH 31, 1973 135

the transcendental nature of the main issue raised, the
necessity of deciding the same with utmost dispatch, and afternoon, or a total of exactly 26 hours and 31 minutes —
the main defense set up by respondents herein, namely, the the respective counsel filed extensive notes on their or
alleged political nature of said issue, placing the same, arguments, as well as on such additional arguments as
according to respondents, beyond the ambit of judicial they wished to submit, and reply notes or memoranda, in
inquiry and determination. If this defense was sustained, addition to rejoinders thereto, aside from a sizeable
the cases could readily be dismissed; but, owing to the number of document in support of their respective
importance of the questions involved, a reasoned resolution contentions, or as required by the Court. The arguments,
was demanded by public interest. At the same time, oral and written, submitted have been so extensive and
respondents had cautioned against a judicial inquiry into exhaustive, and the documents filed in support thereof so
the merits of the issues posed on account of the magnitude numerous and bulky, that, for all intents and purposes, the
of the evil consequences, it was claimed, which would result situation is as if — disregarding forms — the petitions had
from a decision thereon, if adverse to the Government. been given due course and the cases had been submitted
As a matter of fact, some of those issues had been raised for decision.
in the plebiscite cases, which were dismissed as moot and Accordingly, the majority of the members of the Court
academic, owing to the issuance of Proclamation No. 1102 believe that they should express their views on the
subsequently to the filing of said cases, although before the aforementioned issues as if the same were being decided on
rendition of judgment therein. Still one of the members of the merits, and they have done so in their individual
the Court (Justice Zaldivar) was of the opinion that the opinion attached hereto. Hence, the resume of the votes
aforementioned issues should be settled in said cases, and cast and the tenor of the resolution, in the last pages
he, accordingly, filed an opinion passing upon the merits hereof, despite the fact that technically the Court has not,
thereof. On the other hand, three (3) members of the Court as yet, formally given due course to the petitions herein.
— Justices Barredo, Antonio and Esguerra — filed And, now, here are my views on the reliefs sought by the
separate opinions favorable to the respondents in the parties.
plebiscite cases, Justice Barredo holding “that the 1935 In L-36165, it is clear that we should not issue the writ
Constitution has pro tanto passed into history and has of mandamus prayed for against Gil J. Puyat and Jose Roy,
been legitimately supplanted by the Constitution in force President and President Pro Tempore respectively of the
by virtue of Proclamation 1102.”86 When the petitions at Senate, it being settled in our jurisdiction, based upon the
bar were filed, the same three (3) members of the Court, theory of separation of powers, that the judiciary will not
consequently, voted for the dismissal of said petitions. The issue such writ to the head of a co-equal department, like
majority of the members of the Court did not share, the aforementioned officers of the Senate.
however, either view, believing that the main question that In all other respects and with regard to the other
arose before the rendition of said judgment had not been respondent in said case, as well as in cases L-36142, L-
sufficiently discussed and argued as the nature and 36164, L-36236 and L-36283, my vote is that the petitions
importance thereof demanded. therein should be given due course, there being more than
The parties in the cases at bar were accordingly given prima facie showing that the proposed Constitution has not
every possible opportunity to do so and to elucidate on and been ratified in accordance with Article XV of the 1935
discuss said question. Thus, apart from hearing the parties Constitution, either strictly, substantially, or has been
in oral argument for five (5) consecutive days — morning acquiesced in by the people or majority thereof; that said
and proposed Constitution is not in force and effect; and that
the 1935 Constitution is still the
_______________ 137
86 Justice Barredo’s opinion in the plebiscite cases.
136 VOL. 50, MARCH 31, 1973 137

Javellana vs. The Executive Secretary The five questions thus agreed upon as reflecting the
basic issues herein involved are the following:
Fundamental Law of the Land, without prejudice to the 1. Is the issue of the validity of Proclamation No. 1102 a
submission of said proposed Constitution to the people at a justiciable, or political and therefore non-justiciable,
plebiscite for its ratification or rejection in accordance with question?
Articles V, X and XV of the 1935 Constitution and the 2. Has the Constitution proposed by the 1971
provisions of the Revised Election Code in force at the time Constitutional Convention been ratified validly (with
of such plebiscite. substantial, if not strict, compliance) conformably to the
Perhaps others would feel that my position in these applicable constitutional and statutory provisions?
cases overlooks what they might consider to be the 3. Has the aforementioned proposed Constitution
demands of “judicial statesmanship,” whatever may be the acquiesced in (with or without valid ratification) by the
meaning of such phrase. I am aware of this possibility, if people?
not probability; but “judicial statesmanship,” though 4. Are petitioners entitled to relief? and
consistent with Rule of Law, cannot prevail over the latter. 5. Is the aforementioned proposed Constitution in force?
Among consistent ends or consistent values, there always The results of the voting, premised on the individual
is a hierarchy, a rule of priority. views expressed by the members of the Court in their
We must realize that the New Society has many respect opinions and/or concurrences, are as follows:
achievements which would have been very difficult, if not 1. On the first issue involving the political-question
impossible, to accomplish under the old dispensation. But, doctrine Justices Makalintal, Zaldivar, Castro, Fernando,
in and for the judiciary, statesmanship should not prevail Teehankee and myself, or six (6) members of the Court,
over the Rule of Law. Indeed, the primacy of the law or of hold that the issue of the validity of Proclamation No. 1102
the Rule of Law and faithful adherence thereto are basic, presents a justiciable and non-political question. Justices
fundamental and essential parts of statesmanship itself. Makalintal and Castro did not vote squarely on this
Resume of the Votes Cast and the Court’s Resolution question, but, only inferentially, in their discussion of the
As earlier stated, after the submittal by the members of second question. Justice Barredo qualified his vote, stating
the Court of their individual opinions and/or concurrences that “inasmuch as it is claimed there has been approval by
as appended hereto, the writer will now make, with the the people, the Court may inquire into the question of
concurrence of his colleagues, a resume or summary of the whether or not there has actually been such an approval,
votes cast by each of them. and, in the affirmative, the Court should keep hands-off out
It should be stated that by virtue of the various of respect to the people’s will, but, in negative, the Court
approaches and views expressed during the deliberations, may determine from both factual and legal angles whether
it was agreed to synthesize the basic issues at bar in broad or not Article XV of the 1935 Constitution been complied
general terms in five questions for purposes of taking the with.” Justices Makasiar, Antonio, Esguerra, or three (3)
votes. It was further agreed of course that each member of members of the Court hold that the issue is political and
the Court would expound in his individual opinion and/or “beyond the ambit of judicial inquiry.”
concurrence his own approach to the stated issues and deal 2. On the second question of validity of the ratification,
with them and state (or not) his opinion thereon singly or Justices Makalintal, Zaldivar, Castro, Fernando,
jointly and with such priority, qualifications and Teehankee
modifications as he may deem proper, as well as discuss 139
thereon other related issues which he may consider vital
and relevant to the cases at bar.
VOL. 50, MARCH 31, 1973 139
138
138 SUPREME COURT REPORTS ANNOTATED and myself, or six (6) members of the Court also hold that
Javellana vs. The Executive Secretary 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 repudiation of the proposed Constitution under Martial
plebiscite held in accordance with law and participated in Law. Justice Fernando states that “(I)f it is conceded that
only by qualified and duly registered voters.”87 the doctrine stated in some American decisions to the effect
Justice Barredo qualified his vote, stating that “(A)s to that independently of the validity of the ratification, a new
whether or not the 1973 Constitution has been validly Constitution once accepted acquiesced in by the people
ratified pursuant to Article XV, I still maintain that in the must be accorded recognition by the Court, I am not at this
light of traditional concepts regarding the meaning and stage prepared to state that such doctrine calls for
intent of said Article, the referendum in the Citizens’ application in view of the shortness of time that has
Assemblies, specially in the manner the votes therein were elapsed and the difficulty of ascertaining what is the mind
cast, reported and canvassed, falls short of the of the people in the absence of the freedom of debate that is
requirements thereof. In view, however, of the fact that I a concomitant feature of martial law.”88
have no means of refusing to recognize as a judge that Three (3) members of the Court express their lack of
factually there was voting and that the majority of the knowledge and/or competence to rule on the question.
votes were for considering as approved the 1973 Justices Makalintal and Castro are joined by Justice
Constitution without the necessity of the usual form of Teehankee in their statement that “Under a regime of
plebiscite followed in past ratifications, I am constrained to martial law, with the free expression of opinions through
hold that, in the political sense, if not in the orthodox legal the usual media vehicle restricted, (they) have no means of
sense, the people may be deemed to have cast their knowing, to the point of judicial certainty, whether the
favorable votes in the belief that in doing so they did the people have accepted the Constitution.”89
part required of them by Article XV, hence, it may be said 4. On the fourth question of relief, six (6) members of the
that in its political aspect, which is what counts most, after Court, namely, Justices Makalintal, Castro, Barredo,
all, said Article has been substantially complied with, and, Makasiar, Antonio and Esguerra voted to DISMISS the
in effect, the 1973 Constitution has been constitutionally petition. Justice Makalintal and Castro so voted on the
ratified.” strength of their view that “(T)he effectivity of the said
Justices Makasiar, Antonio and Esguerra, or three (3) Constitution, in the final analysis, is the basic and ultimate
members of the Court hold that under their view there has question posed by these cases to resolve which
been in effect substantial compliance with the considerations other than judicial, an therefore beyond the
constitutional requirements for valid ratification. competence
91
of this Court,90 are relevant and unavoidable.”
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, 88 Justice Barredo’s language.
Makasiar, Antonio and Esguerra hold that “the people have 89 At p. 153, joint opinion of Justices Makalintal and Castro.
already 90 Joint Opinion of Justices Makalintal and Castro, p. 153.
91 At p. 8, Idem.
_______________
141
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
140
VOL. 50, MARCH 31, 1973 141
Four (4) members of the Court, namely, Justices
accepted the 1973 Constitution.” Zaldivar, Fernando, Teehankee and myself voted to deny
Two (2) members of the Court, namely, Justice Zaldivar respondents’ motion to dismiss and to give due course to
and myself hold that there can be no free expression, and the petitions.
there has even been no expression, by the people qualified
to vote all over the Philippines, of their acceptance or
5. On the fifth question of whether the new Constitution

143
of 1973 is in force:
Barredo, Makasiar, Antonio and Esguerra hold that it VOL. 50, MARCH 31, 1973 143
is in force by virtue of the people’s acceptance thereof;
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 ANNEX A
judicial certainty whether the people have accepted or PERTINENT PORTIONS
not accepted the Constitution; and OF THE
Two (2) members of the Court, namely, Justice MINNESSOTA SUPREME COURT
Zaldivar and myself voted that the Constitution DECISION
proposed by the 1971 Constitutional Convention is ON THE CASE
not in force; IN RE McCONAUGHY*
with the result that there are not enough votes to declare “(a) An examination of the decisions shows that the
that the new Constitution is not in force. courts have almost uniformly exercised the authority to
ACCORDINGLY, by virtue of the majority of six (6) determine the validity of the proposal, submission, or
votes of Justices Makalintal, Castro, Barredo, Makasiar, ratification of constitutional amendments. It has been
Antonio and Esguerra with the four (4) dissenting votes of judicially determined whether a proposed amendment
the Chief Justice and Justices Zaldivar, Fernando and received the constitutional majority of votes (Dayton v. St.
Teehankee, all the aforementioned cases are hereby Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W.
dismissed. This being the vote of the majority, there is no 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45
further judicial obstacle to the new Constitution being L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6
considered in force and effect. L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb.
It is so ordered. 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,
Makalintal, Castro, Barredo, Makasiar, Antonio and 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134
Esguerra, JJ., concur. Fed. 423); whether a proposed amendment is a single
Concepcion, C.J., dissents. amendment, within the constitutional requirement that
Zaldivar, J., dissents in line with the personal opinion every amendment must be separately submitted (State v.
of Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54
142 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
142 SUPREME COURT REPORTS ANNOTATED 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
the Chief Justice, and also dissents in a separate opinion. submission upon the legislative journals invalidates the
Fernando, J., dissents in conformity with the personal amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15
views of the Chief Justice, except as to such portions N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11
thereof on which he expresses his own thoughts as set forth Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v.
in his dissenting opinion; Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev.
Teehankee, J., dissents in conformity with the Chief 391, 12 Pac. 835, 3 Am.
Justice’s personal opinion and files a separate dissent.
144



VOL. 50, MARCH 31, 1973 145
St. Rep. 895); whether the description of the amendment
and the form of the ballot are sufficient (Russell v. Croy, some board or official, had legally performed the duty
164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. imposed by the Constitution or statutes. In re State v.
1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the
General [Mich.] 112 N.W. 127); whether the method of General Assembly, under the power granted by the
submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 Constitution, could change the Constitution only in the
N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); manner prescribed by it, and that it was the duty of the
whether the publication of the amendment or of a notice court to determine whether all prerequisites had been
relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 complied with. In Collier v. Frierson, 24 Ala. 100, it was
Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 held that a Constitution can be changes only by the people
S.W. 849); whether the submission may be well by in convention or in a mode described by the
resolution as by a legislative act approved by the executive Constitution itself, and that if the latter mode is adopted
(Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; every requisite of the Constitution must be observed. ‘It has
Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward been said,” says the court, “that certain acts are to be done,
Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. certain requisitions are to be observed, before a change can
Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 be effected; but to what purpose are these acts required, or
N.W. 418, 34 L.R.A. 97); at what election the amendment be these requisitions enjoined, if the Legislature or any other
submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516). department of the government can dispense with them. To
“In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. do so would be to violate the instrument which they are
183, the court said: “It is contended that the determination sworn to support; and every principle of public law and
of the question whether an amendment to the Constitution sound constitutional policy requires the court to pronounce
has been carried involves the exercise of political, and not against every amendment which is shown not to have been
judicial, power. If this be so, it follows that the made in accordance with the rules prescribed by the
promulgation of any purported amendment by the fundamental law.’
executive or any executive department is final, and that the “In State v. Swift, 69 Ind. 505, it was said that: ‘The
action cannot be questioned by the judiciary; but, with people of a state may form an original Constitution, or
reference to the conditions precedent to submitting a abrogate an old one and form a new one, at any time,
proposed amendment to a vote of the people, it has been without any political restriction, except the Constitution of
repeatedly held, by courts of the highest respectability, that the United States, but if they undertake to add an
it is within the power of the judiciary to inquire into the amendment, by the authority of legislation to a
question, even in a collateral proceeding. * * * It is to be Constitution already in existence, they can do it only by the
noted that under section 1 of article 20 of the Constitution method pointed out by the Constitution to which the
of the state no amendment can become a part of the amendment is added. The power to amend a Constitution
Constitution until ratified by a vote of the people. One by legislative action does not confer the power to break it,
prerequisite is equally as essential as the other. The any more than it confers the power to legislate on any other
amendment must first receive the requisite majority in the subject contrary to its prohibitions.’ So, in State v. Timme,
Legislature, and afterwards be adopted by the requisite 54 Wis. 318, 11 N.W. 785, it was held that no amendments
vote. * * * It is the fact of a majority vote which makes the can be made to the Constitution of the state without a
amendment a part of the Constitution.’ compliance with the provisions thereof, both in the passage
“In considering the cases it is necessary to note whether of such amendment by the Legislature and the manner of
in the particular case the court was called upon to submitting it to the people. The courts have not all agreed
determine between rival governments, or whether the as to the strictness of compliance which should be required.
Legislature, or “In the Prohibition and Amendment Case, 24 Kan. 700,
the
145

“In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3,

146
the court, in commenting upon the Kansas case said: ‘The
147
VOL. 50, MARCH 31, 1973 147
court determined judicially whether an amendment to the Javellana vs. The Executive Secretary
Constitution had been legally adopted. After approving the
statement quoted from Collier v. Frierson, supra, that ‘we reasoning by which the learned court reached the
entertain no doubt that, to change the Constitution in an conclusion it did is not based on any sound legal principles,
other mode than by a convention, every requisite which is but contrary to them. Neither the argument nor the
demanded by the instrument itself must be observed, and conclusion can command our assent or approval. The
the omission of any one is fatal to the amendment,’ the court argument is illogical, and based on premises which are
held that, ‘as substance of right is grander and more potent without any sound foundation, and rests merely on
than methods of form,’ there had been substantial assumption.’ See, also, the well-considered case of Kadderly
compliance with the constitutional requirement that a v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these
proposed amendment to the Constitution must be entered cases concede the jurisdiction of the court to determine
at length on the legislative journal. It appears that the joint whether, in submitting a proposed amendment to the
resolution making submission simply provided that a people, the Legislature legally observed the constitutional
proposition should be submitted to the electors at the provisions as to the manner of procedure. InLivermore v.
general election of 1880. It did not declare that the Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court,
machinery of the general election law should control, or at the instance of a citizen and a taxpayer, restrained the
that any particular officers or board would receive, count, or Secretary of State from taking steps to submit to the people
canvass the votes cast. But the existing election machinery a proposed amendment to the Constitution agreed to by the
was adequate, and the votes were received, counted, and Legislature on the ground that the Legislature had not
canvassed, and the result declared as fully as though it had acted in conformity with the Constitution and that the
been in terms so ordered. These methods had been followed proposed amendment was of such a character that it could
in the adoption of previous amendments, and was held that, not properly become a part of the Constitution. The
conceding the irregularity of the proceedings the Supreme Court of Colorado, in People v. Sours, supra,
Legislature and the doubtful scope of the provisions for the refused to exercise this authority.
election, yet in view of the very uncertainty of such “The entire question received elaborate consideration in
provision the past legislative history of similar propositions, Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609.
the universal prior acquiescence in the same forms of The amendment, which concededly had been adopted by the
procedure and the popular and unchallenged acceptance of people, had not, before its submission, been entered in full
the legal pendency before the people of the question of the upon the legislative journals, as required by the
amendment for decision, and in view of the duty cast upon Constitution, and it was held that this was a
the court taking judicial knowledge of anything affecting materialvariance in both form and substance from the
the existence and validity of any law or portion of the constitutional requirements, and that the amendment did
Constitution, it must be adjudged that the proposed not, therefore, become a part of the Constitution. As to the
amendment became part of the Constitution. The effect claim that the question was political, and not judicial, it
was to hold that a provision of the Constitution requiring was said that, while it is not competent for courts to
the proposed amendment to be entered in full on the inquire into the validity of the Constitution and the form of
journals was directory, and not mandatory. This government under which they themselves exist, and from
liberal view was approved in State v. Winnett (Neb.) 110 N. which they derive their powers, yet, where the existing
1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. Constitution prescribes a method for its own amendment,
369, Pac. 167, 102 Am. St. Rep. 34. But it has not been an amendment thereto, to be valid, must be adopted in strict
universally accepted. 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 judiciary. It was contented that the amendments had been
of the amendment, the provisions of the existing improperly submitted and adopted by a majority of the
Constitution have been observed, and, if not, to declare the qualified voters voting at election, as required by the
amendment invalid and of no force. This case was followed Constitution. The law did not
in State v. Brookhart,
149
148
VOL. 50, MARCH 31, 1973 149

148 SUPREME COURT REPORTS ANNOTATED Javellana vs. The Executive Secretary
direct how the result of the election should be determined.
113 Iowa, 250, 84 N.W. 1064. The Legislature by joint resolution recited that the election
“In University v. McIver, 72 N.C. 76, the question had been duly held throughout the state, and, as it
whether a proposed amendment to the Constitution had appeared from the returns made to the Secretary of State,
been legally adopted was treated as a judicial question. By that 21,169 votes were cast in favor of, and 8,643 votes
the Constitution a proposed amendment was required to be against, the amendment, it resolved ‘that said amendment
approved by Legislatures before its submission to the be, and hereby is, inserted into the Constitution of the state
people. In this instance a bill was passed which contained of Mississippi as a part of the Constitution.’ In fact, the
17 amendments. The next Legislature rejected 9 and amendment was not submitted in the manner prescribed by
adopted 8 of the amendments, and submitted them to the the Constitution, and it did not receive a majority of all the
people. The majority of the people voted for their adoption; qualified voters voting at the election. It was argued that
but it was contended that the Constitution contemplated the rules prescribed by the Constitution “are all for the
and required that the same bill and the same guidance of the Legislature, and from the very nature of
amendments, without change, should approved by both the thing the Legislature must be the exclusive judge of all
Legislatures, and that it did not follow because the second questions to be measured or determined by these rules.
Legislature adopted separately 8 out of 17 amendments Whether the question be political, and certainly a
adopted by the first Legislature, it would have adopted the legislative one, or judicial, to be determined by the courts,
17, or any of them, if they had been voted upon the second this section of rules, not only of procedure, but of final
in the form adopted by the first body. The substance of the judgment as well, confides to the separate magistracy of
contention was that there had not been a concurrence of the legislative department full power to hear, consider, and
the two Legislatures on the same amendments, according adjudge that question. The Legislature puts the question to
to the letter and spirit of the Constitution. The court held the qualified electors. The qualified electors answer back to
that the power of the Legislature in submitting the Legislature. “If it shall appear” to the Legislature that
amendments could not be distinguished from the powers of its question has been answered in the affirmative, the
convention, and that, as the people had spoken and ratified amendment is inserted and made a part of the
the amendments, they became a part of the Constitution. Constitution. The Governor and the courts have no
“In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, authority to speak at any stage of the proceedings between
it was held that prior to 1876 a proposed amendment to the sovereign and the Legislature, and when the matter is
Constitution could not be submitted to the people at any thus concluded it is closed, and the judiciary is as
other than a general election; but, as the amendment under powerless to interfere as the executive.’ But it was held
consideration had been submitted after the Constitution that the question whether the proposition submitted to the
been changed, it had been legally submitted and adopted. voters constituted one, or more than one, amendment,
“In State v. Powell, 77 Miss. 543, 27 South. 927, the whether the submission was according to the requirements
question whether an amendment to the Constitution had of the Constitution, and whether the proposition was in fact
been legally submitted and adopted by the people was held adopted, were all judicial, and not political, questions. ‘We
to be judicial, and not political, in its nature. The do not,’ said Chief Justice Whitfield, ‘seek a jurisdiction not
amendment under consideration changed the Constitution imposed upon us by the Constitution. We could not, if we
by providing for an elective, instead of an appointive, would, escape the exercise of that jurisdiction which the
Constitution has imposed upon us. In the particular become a part of the Constitution. At the instance of a
instance in which we are now acting, our duty to know taxpayer the Supreme Court allowed a writ of certiorari to
what the Constitution of the state is, and in accordance remove into the court for review the statement of the results
with our oaths to support and maintain it in its integrity, of the election made by the canvassing board, in order that
imposed on us a most difficult and embarrassing duty, one it might be judicially determined whether on the facts
which we have not sought, but one which, like all others, shown in that statement the board had legally determined
must be discharged.’ that the proposed amendment had been adopted. The
Supreme Court decided that the concurrence of the board of
150
state canvassers and the executive department of the
government in their respective official
151
VOL. 50, MARCH 31, 1973 151

“In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 Javellana vs. The Executive Secretary
L.R.A. 251, it was held that it was the duty of the judicial
department of the government to determine whether the
functions placed the subject-matter beyond the cognizance
legislative department or its officers had observed the
of the judicial department of the state. The Court of
constitutional injunctions in attempting to amend the
Appeals, after a full review of the authorities, reversed this
Constitution, and to annul their acts if they had not done
decision, and held that the questions were of a judicial
so. The case is an interesting and well-considered one. The
nature, and properly determinable by the court on their
Constitution provided the manner in which proposed
merits. Mr. Justice Dixon, after stating the facts, said: ‘It
amendments should be submitted to the people, but did not
thus becomes manifest that there was present in the
provide a method for canvassing the votes. The Legislature
Supreme Court, and is now pending in this court, every
having agreed to certain proposed amendments, passed an
element tending to maintain jurisdiction over the subject-
act for submitting the same to the people. This statute
matter, unless it be true, as insisted, that the judicial
provided for the transmission to the Secretary of State of
department of the government has not the right to consider
certificate showing the result of the voting throughout the
whether the legislative department and its agencies have
state, and made it the duty of the Governor at the
observed constitutional injunctions in attempting to amend
designated time summon four or more Senators, who, with
the Constitution, and to annul their acts in case that they
the Governor, should constitute a board of state canvassers
have not done so. That such a proposition is not true seems
to canvass and estimate the votes for and against each
to be indicated by the whole history of jurisprudence in this
amendment. This board was to determine and declare
country.’ The court, after considering the case on the
which of the proposed amendments had been adopted and
merits, held that the proper conclusion had been drawn
to deliver a statement of the results to the Secretary of
therefrom, and that the amendment in question was legally
State, and “any proposed amendment, which by said
submitted and adopted.
certificate and determination of the board of canvassers
“The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W.
shall appear to have received in its favor the majority of all
396, presented the identical question which we have under
the votes cast in the state for and against said proposed
consideration. In reference to the contention that the
amendment, shall from the time of filing such certificate be
Constitution intended to delegate to the Speaker of the
and become an amendment to and a part of the
House of Representatives the power to determine whether
Constitution of the state; and it shall be the duty of the
an amendment had been adopted, and that the question
Governor of the state forthwith, after such a determination,
was political, and not judicial, the court observed: “The
to issue a proclamation declaring which of the said
argument has often been made in similar cases to the
proposed amendments have been adopted by the people.”
courts, and it is found in many dissenting opinions; but,
This board was required to file a statement of the result of
with probably a few exceptions, it is not found in any
the election, and the Governor to issue his proclamation
prevailing opinion.”
declaring that the amendment had been adopted and

“In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 153

560, it was held that the constitutional requirement of
publication of a proposed constitutional provision for three VOL. 50, MARCH 31, 1973 153
months prior to the election at which it is to be submitted Javellana vs. The Executive Secretary
to the people is mandatory and that noncompliance
therewith renders the adoption of an amendment of no
effect.”
The Secretary of the Department of Local Government
152 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.
Javellana vs. The Executive Secretary (SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
ANNEX B Executive Secretary
MALACAÑANG
MANILA MAKALINTAL and CASTRO, JJ.:
BY THE PRESIDENT OF THE PHILIPPINES The preliminary question before this Court was whether
PRESIDENTIAL DECREE NO. 86-B or not the petitioners had made out a sufficient prima facie
Defining Further the Role of Barangays (Citizens case in their petitions to justify their being given due
Assemblies) course. Considering on the one hand the urgency of the
WHEREAS, since their creation pursuant to matter and on the other hand its transcendental
Presidential Decree No. 86 dated December 31, 1972, the importance, which suggested the need for hearing the side
Barangays (Citizens Assemblies) have petitioned the Office of the respondents before that preliminary question was
of the President to submit to them for resolution important resolved, We required them to submit their comments on
national issues; the petitions. After the comments were filed We considered
WHEREAS, one of the questions persistently mention them as motions to dismiss so that they could be orally
refers to the ratification of the Constitution proposed by the argued. As it turned out, the hearing lasted five days,
1971 Constitutional Convention; morning and afternoon, and could not have been more
WHEREAS, on the basis of the said petitions, it is exhaustive if the petitions had been given due course from
evident that the people believe that the submission of the the beginning.
proposed Constitution to the Citizens Assemblies or The major thrust of the petitions is that the act of the
Barangays should taken as a plebiscite in itself in view of Citizens Assemblies as certified and proclaimed by the
the fact that freedom of debate has always been limited to President on January 17, 1973 (Proclamation No. 1102)
the leadership in political, economic and social fields, and was not an act of ratification, let alone a valid one, of the
that it is now necessary to bring this down to the level of proposed Constitution, because it was not in accordance
the people themselves through the Barangays or Citizens with the existing Constitution (of 1935) and the Election
Assemblies; Code of 1971. Other grounds are relied upon by the
NOW, THEREFORE, I, FERDINAND E. MARCOS, petitioners in support of their basic proposition, but to our
President of the Philippines, by virtue of the powers in me mind they are merely subordinate and peripheral.
vested by the Constitution, do hereby order that important
154
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 154 SUPREME COURT REPORTS ANNOTATED
January 5, 1973 an that the initial referendum shall Javellana vs. The Executive Secretary
include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.


Article XV, Section 1, of the 1935 Constitution provides in Section 101 of the Election Code. Section 102
that amendments (proposed either by Congress in joint enumerates the classes of persons disqualified to vote.
session or by a Convention called by it for the purpose) Succeeding sections prescribe the election paraphernalia to
“shall be valid part of this Constitution when approved by a be used, the procedure for registering voters, the records, of
majority of votes cast at an election at which the registration and the custody thereof, the description and
amendments submitted to the people for their ratification.” printing of official ballots, the actual casting of votes and
At the time Constitution was approved by the their subsequent counting by the boards of inspectors, the
Constitutional Convention on February 8, 1935, and rules for appreciation of ballots, and then the canvass and
ratified in a plebiscite held on following May 14, the word proclamation of the results.
“election” had already a definite meaning in our law and With specific reference to the ratification of the 1972
jurisprudence. It was not a vague and amorphous concept, draft Constitution, several additional circumstances should
but a procedure prescribed by statute ascertaining the be considered:
people’s choices among candidates for public offices, or (1) This draft was prepared and approved by a
their will on important matters submitted to the pursuant Convention which had been convened pursuant to
to law, for approval. It was in this sense that word was Resolution No. 2 passed by Congress on March 16, 1967,
used by the framers in Article XV (also in Articles VI and which provides:
VII), and in accordance with such procedure that
plebiscites were held to ratify the very same Constitution “Sec. 7. The amendments proposed by the Convention shall be
in 1935 as well as the subsequent amendments thereto, valid and considered part of the Constitution when approved by a
thus: in 1939 (Ordinance appended to the Constitution); majority of the votes cast in an election at which they are
1940 (establishment of a bicameral legislature; eligibility of submitted to the people for their ratification pursuant to Article
the President and the Vice President for re election; XV of the Constitution.”
creation of the Commission of Elections); 1947 (Parity
(2) Article XVII, Section 16, of the draft itself states:
Amendment); and 1967 (increase in membership of the
House of Representatives and eligibility of members of “Sec. 16. This Constitution shall take effect immediately upon
Congress to run for the Constitutional Convention without its ratification by a majority of the votes cast in a plebiscite called
forfeiture of their offices). for the purpose and, except as herein provided, shall supersede
The Election Code of 1971, in its Section 2, states that the Constitution of nineteen hundred and thirty-five and all
“all elections of public officers except barrio officials and amendments thereto.”
plebiscites shall be conducted in the manner provided by
this Code.” This is a statutory requirement designed, as The same procedure is prescribed in Article XVI, Section
were the other election laws previously in force, to carry 2, for the ratification of any future amendment to or
out the constitutional mandate relative to the exercise of revision of the said Constitution.
the right suffrage, and with specific reference to the term (3) After the draft Constitution was approved by the
“plebiscites,” the provision of Article XV regarding
156
ratification of constitutional amendments.
The manner of conducting elections and plebiscites
provided by the Code is spelled out in other sections 156 SUPREME COURT REPORTS ANNOTATED
thereof. Section 99 requires that qualified voters be Javellana vs. The Executive Secretary
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 Constitutional Convention on November 30, 1972 the said
residence. These qualifications are reiterated body adopted Resolution No. 5843, proposing “to President
Ferdinand E. Marcos that a decree be issued calling a
155 plebiscite for the ratification of the proposed New
Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor.”
VOL. 50, MARCH 31, 1973 155
Pursuant to said Resolution the President issued Decree
Javellana vs. The Executive Secretary No. 73 on the same day, calling a plebiscite to be held on
January 15, 1973, at which the proposed Constitution singular, instead of plural, rendition of the word “election”
“shall be submitted to the people for ratification or was considered a sufficient ground to rule out the plebiscite
rejection.” The Decree had eighteen (18) sections in all, which had been called to ratify a proposed amendment in
prescribing in detail the different steps to be taken to carry accordance with the procedure and under all the
out the process of ratification, such as: (a) publication of the safeguards provided in the Election Law.
proposed Constitution in English and Pilipino; (b) freedom In the cases now before Us what is at issue is not merely
of information and discussion; (c) registration of voters: (d) the ratification of just one amendment, as in Tolentino vs.
appointment of boards of election inspectors and COMELEC, but the ratification of an entire charter setting
designation of watchers in each precinct; (e) printing of up a new form of government; and the issue has arisen not
official ballots; (f) manner of voting to insure freedom and because of a disputed construction of one word or one
secrecy thereof; (g) canvass of plebiscite returns; and (h) in provision in the 1935 Constitution but because no election
general, compliance with the provisions of the Election or plebiscite in accordance with that Constitution and with
Code of 1971, with the Commission on Elections exercising the Election Code of 1971 was held for the purpose of such
its constitutional and statutory powers of supervision of the ratification.
entire process. The Citizens Assemblies which purportedly ratified the
There can hardly be any doubt that in everybody’s view draft Constitution were created by Presidential Decree No.
— from the framers of the 1935 Constitution through all 86 dated December 31, 1972, “to broaden the base of citizen
the Congresses since then to the 1971 Constitutional participation in the democratic process and to afford ample
Convention — amendments to the Constitution should be opportunities for the citizenry to express their views on
ratified in only one way, that is, in an election or plebiscite important national issues.” The Assemblies “shall consist of
held in accordance with law and participated in only by all persons who are residents of the barrio, district or ward
qualified and duly registered voters. Indeed, so concerned for at least six months, fifteen years of age or over, citizens
was this Court with the importance and indispensability of of the Philippines and who are registered in the lists of
complying with the mandate of the (1935) Constitution in Citizen Assembly members kept by the barrio, district or
this respect that in the recent case of Tolentino vs. ward secretary.” By Presidential Decree No. 86-A, dated
Commission on Elections, No. L-34150, October 16, 1971 January 5, 1973, the Assemblies were convened for a
(41 SCRA 702), a resolution of the (1971) Constitutional referendum between January 10 and 15, to “consider vital
Convention submitting a proposed amendment for national issues now confronting the country, like the
ratification to a plebiscite to be held in November 1971 was holding of the plebiscite on the new Constitution, the
declared null and void. The amendment sought to reduce continuation of martial rule, the convening of Congress on
the voting age from twenty-one to eighteen years and was January 22, 1973, and the holding of elections in November
approved by the Convention for submission to a plebiscite 1973.”
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 * The undersigned (Justice Querube C. Makalintal) who had reserved
ratification of such other amendments later. This Court his right to do so, filed a separate dissenting opinion when the Court
held denied a motion for reconsideration, and voted in favor of the validity of
the questioned Resolution. Mr. Justice Enrique M. Fernando joined in the
157
dissent.
VOL. 50, MARCH 31, 1973 157 158

that such separate submission was violative of Article XV, Javellana vs. The Executive Secretary
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 On January 5, 1973 the newspapers came out with a list
plebiscite.”* Thus a grammatical construction based on a of four questions to be submitted to the Citizens
Assemblies, the fourth one being as follows: “How soon In order to broaden the base of citizens’ participation in
would you like plebiscite on the new Constitution to be government.
held?” It should be noted in this connection that the QUESTION No. 2
President had previously announced that he had ordered But we do not want the Ad Interim Assembly to be
the postponement of plebiscite which he had called for convoked. Or if it is to be convened at all, it should not be
January 15, 1973 (Presidential Decree No. 73) for the done so until after at least seven (7) years from the approval
ratification of the Constitution, and that he was of the New Constitution by the Citizens Assemblies.
considering two new dates for the purpose — February 19 QUESTION No. 3
or March 5; that he had ordered that the registration of If the Citizens Assemblies approve of the New Constitution,
voters (pursuant to Decree No. 73) be extended to then the new Constitution should be deemed ratified.
accommodate new voters; and that copies of the new The vote of the Citizens Assemblies should already be
Constitution would be distributed in eight dialects the considered the plebiscite on the New Constitution.
people. (Bulletin Today, December 24, 1972.) QUESTION No. 4
On January 10, 1973 it was reported that one more We are sick and tired of too frequent elections. We are fed
question would be added to the original four which were to up with politics, of so many debates and so much expenses.
be submitted to the Citizens Assemblies. The question QUESTION No. 5
concerning plebiscite was reworded as follows: “Do you like Probably a period of at least seven (7) years moratorium on
the plebiscite to be held later?” The implication, it may elections will be enough for stability to be established in the
likewise be noted, was that the Assemblies should express country, for reforms to take root and normalcy to return.
their views as to the plebiscite should be held, not as to QUESTION No. 6
whether or not it should be held at all. We want President Marcos to continue with Martial Law.
The next day, January 11, it was reported that six We want him to exercise his powers with more authority.
additional questions would be submitted, namely: We want him to be strong and firm so that he can
accomplish all his reform program and establish normalcy
“(1) Do you approve of the citizens assemblies as the base of in the country. If all other measures fail, we want President
popular government to decide issues of national interest? Marcos to declare a
“(2) Do you approve of the new Constitution?
“(3) Do you want a plebiscite to be called to ratify the new 160
Constitution?
“(4) Do you want the elections to be held in November, 1973 160 SUPREME COURT REPORTS ANNOTATED
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?
revolutionary government along the lines of the new
“(6) Do you want martial law to continue? [Bulletin Today,
Constitution without the ad interim Assembly.”
January 11, 1973; emphasis supplied].
So it was that on January 11, 1973, the second day of
159
the purported referendum, the suggestion was broached,
for the first time, that the plebiscite should be done away
VOL. 50, MARCH 31, 1973 159 with and a favorable vote by the Assemblies deemed
Javellana vs. The Executive Secretary 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.
Appended to the six additional questions above quoted There should be no serious dispute as to the fact that the
were the suggested answers, thus: manner in which the voting was conducted in the Citizen
“COMMENTS ON Assemblies, assuming that such voting was held, was not
QUESTION No. 1 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 same must be duly ascertained in accordance with the
the plebiscite contemplated in Section 2 of said Code and in procedure prescribed by law. In other words the very
Article XVII, Section 16, of the draft Constitution itself, or existence of such majority or plurality depends upon the
as the election intended by Congress when it passed manner of its ascertainment, and to conclude that it exists
Resolution No. 2 on March 16, 1967 calling a Convention even if it has not been ascertained according to law is
for the revision of the 1935 Constitution. The Citizens simply to beg the issue, or to assume the very fact to be
Assemblies were not limited to qualified, let alone established. Otherwise no election or plebiscite could be
registered voters, but included all citizens from the age of questioned for non-compliance with the provisions of the
fifteen, and regardless of whether or not they were Election Law as long as it is certified that a majority of the
illiterates, feeble-minded, or ex convicts* — these being the citizens had voted favorably or adversely on whatever it
classes of persons expressly disqualified from voting by was that was submitted to them to vote upon.
Section 102 of the Election Code. In short, the However, a finding that the ratification of the draft
constitutional and statutory qualifications were not Constitution by the Citizens Assemblies, as certified by the
considered in the determination of who should participate. President in Proclamation No. 1102, was not in accordance
No official ballots were used in the voting; it was done with the constitutional and statutory procedure laid down
mostly by acclamation or open show of hands. Secrecy, for the purpose does not quite resolve the questions raised
which is one of the essential features of the election in these cases. Such a finding, in our opinion, is on a
process, was not therefore observed. No set of rules for matter which is essentially justiciable, that is, within the
counting the votes or of tabulating them and 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
* Thus by Presidential Decree No. 86 what the Constitutional and of other related laws and official acts. No question of
Convention itself had proposed unsuccessfully as an amendment to the wisdom or of policy is involved. But from this finding it
1935 Constitution, reducing the voting age from 21 to 18, but the does not necessarily follow that this Court may justifiably
submission of which to a plebiscite was declared invalid by this Court in declare that the Constitution has not become effective, and
Tolentino vs. COMELEC, became a reality of an even more far-reaching for that reason give due course to these petitions or grant
import — since fifteen-year olds were included in the Citizens Assemblies. the writs herein prayed for. The effectivity of the said
Constitution, in the final analysis, is the basic and
161
162
VOL. 50, MARCH 31, 1973 161

reporting the figures was prescribed or followed. The
Commission on Elections, which is the constitutional body ultimate question posed by these cases, to resolve which
charged with the enforcement and administration of all considerations other than judicial, and therefore beyond
laws relative to the conduct of elections, took no part at all, the competence of this Court, are relevant and
either by way of supervision or in the assessment of the unavoidable.
results. Several theories have been advanced respectively by the
It has been suggested that since according to parties. The petitioners lay stress on the invalidity of the
Proclamation No. 1102 the overwhelming majority of all ratification process adopted by the Citizens Assemblies and
the members of the Citizens Assemblies had voted for the on that premise would have this Court grant the reliefs
adoption of the proposed Constitution there was a they seek. The respondents represented by the Solicitor
substantial compliance with Article XV, Section 1, of the General, whose theory may be taken as the official position
1935 Constitution and with the Election Code of 1971. The of the Government, challenge the jurisdiction of this Court
suggestion misses the point entirely. It is of the essence of on the ground that the questions raised in the petitions are
a valid exercise of the right of suffrage that not only must a political and therefore non-justiciable, and that in any case
majority or plurality of the voters carry the day but that popular acquiescence in the new Constitution and the
prospect of unsettling acts done in reliance thereon should Senator Tolentino contends that after President Marcos
caution against interposition of the power of judicial declared martial law on September 21, 1972 (Proclamation
review. Respondents Gil J. Puyat and Jose Roy (in L- No. 1081) he established a revolutionary government when
36165), in their respective capacities as President and he issued General Order No. 1 the next day, wherein he
President Pro Tempore of the Senate of the Philippines, proclaimed “that I shall govern the nation and direct the
and through their counsel, Senator Arturo Tolentino, operation of the entire government, including all its
likewise invoke the political question doctrine, but on a agencies and instrumentalities, in my capacity, and shall
ground not concurred in by the Solicitor General, namely, exercise all the powers and prerogatives appurtenant and
that approval of the 1973 Constitution by the people was incident to my position as such Commander-in-Chief of all
made under a revolutionary government, in the course of a the Armed Forces of the Philippines.” By this order, it is
successful political revolution, which was converted by act pointed out, the Commander-in-Chief of the Armed Forces
of the people to the present de jure government under the assumed all the powers of government — executive,
1973 Constitution.” legislative, and judicial; and thereafter proceeded to
Heretofore, constitutional disputes which have come exercise such powers by a series of Orders and Decrees
before this Court for adjudication proceeded on the which amounted to legislative enactments not justified
assumption, conceded by all, that the Constitution was in under martial law and, in some instances, trenched upon
full force and effect, with the power and authority of the the domain of the judiciary, by removing from its
entire Government behind it; and the task of this Court jurisdiction certain classes of cases, such as “those
was simply to determine whether or not the particular act involving the validity, legality, or constitutionality of
or statute that was being challenged contravened some rule Proclamation No. 1081, or of any decree, order or act
or mandate of that Constitution. The process employed was issued, promulgated or performed by me or by my duly
one of interpretation and synthesis. In the cases at bar designated representative pursuant thereto.” (General
there is no such assumption: the Constitution (1935) has Order No. 3 as amended by General Order No. 3-A, dated
been derogated and its continued existence as well as the September 24, 1972.) The ratification by the Citizens
validity of the act of derogation is issue. The legal problem Assemblies, it is averred, was the culminating act of the
posed by the situation is aggravated by the fact that the revolution, which thereupon converted the government into
political arms of the Government — the Executive a de jure one under the 1973 Constitution.
Departments and the two Houses of Congress — have
accepted the new Constitution as effective: the former by _______________
organizing themselves and discharging their functions * According to the Solicitor General 92 Congressmen and 15 Senators
under it, (both numbers constituting majorities) have expressed their option.
163 164
VOL. 50, MARCH 31, 1973 163 164 SUPREME COURT REPORTS ANNOTATED
and the latter by not convening on January 22, 1973 or at

any time thereafter, as ordained by the 1935 Constitution, If indeed it be accepted that the Citizens Assemblies had
and in the case of a majority of the members by expressing ratified the 1973 Constitution and that such ratification as
their option to serve in the Interim National Assembly in well as the establishment of the government thereunder
accordance with Article XVIII, Section 2, of the 1973 formed part of a revolution, albeit peaceful, then the issue
Constitution.* of whether or not that Constitution has become effective
The theory advanced by Senator Tolentino, as counsel and, as necessary corollary, whether or not the government
for respondents Puyat and Roy, may be taken up and legitimately functions under it instead of under the 1935
restated at same length if only because it would constitute, Constitution, is political and therefore non-judicial in
if sustained, the most convenient ground for the invocation nature. Under such a postulate what the people did in the
of the political-question doctrine. In support of his theory, Citizen Assemblies should be taken as an exercise of the
ultimate sovereign power. If they had risen up in arms and decide in one way alone in order to be able to decide at all,
by force deposed the then existing government and set up a the question could not be considered proper for judicial
new government in its place, there could not be the least determination.
doubt that their act would be political and not subject to It should be noted that the above statement from Luther
judicial review but only to the judgment of the same body vs. Borden would be applicable in the cases at bar only on
politic act, in the context just set forth, is based on the premise that the ratification of the Constitution was a
realities. If a new government gains authority and revolutionary act and that the government now functioning
dominance through force, it can be effectively challenged it is the product of such revolution. However, we are not
only by a stronger force; judicial dictum can prevail against prepared to agree that the premise is justified.
it. We do not see that situation would be any different, as In the first, place, with specific reference to the
far as the doctrine of judicial review is concerned, if no questioned ratification, several significant circumstances
force had been resorted to and the people, in defiance of the may be noted. (1) The Citizens Assemblies were created,
existing Constitution but peacefully because of the absence according to Presidential Decree No. 86, “to broaden the
of any appreciable opposition, ordained a new Constitution base of citizen participation in the democratic process and
and succeeded in having the government operate under it. to afford ample opportunities for the citizenry to express
Against such a reality there can be no adequate judicial their views on important national issues.” (2) The President
relief; and so courts forbear to take cognizance of the announced, according to the Daily Express of January 2,
question but leave it to be decided through political means. 1973, that “the referendum will be in the nature of a loose
The logic of the political-question doctrine is illustrated consultation with the people.” (3) The question, as
in statement of the U.S. Supreme Court in a case* relied submitted to them on the particular point at issue here,
upon, curiously enough, by the Solicitor General, who was “Do you approve of the Constitution?” (4) President
disagrees with the revolutionary government theory of Marcos, in proclaiming that the Constitution had been
Senator Tolentino. The case involved the issue of which of ratified, stated as follows: “(S)ince the referendum results
two opposing governments struggling for supremacy in the show that more than ninety-five (95) per cent of the
State of Rhode Island was the lawful one. The issue had members of the Barangays (Citizens Assemblies) are in
previously come up in several other cases before the courts favor of the new Constitution, the Katipunan ng mga
of the State, which uniformly held that the inquiry Barangay has strongly recommended that the new
belonged to the political power and not to the judicial. Constitution should already be deemed ratified by the
Commenting on the ruling thus arrived at, the U.S. Filipino people.” (5) There was not enough time for the
Supreme Court said: “And if a State court should 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
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849). for January 15, 1973 under Presidential Decree No. 73 had
been postponed
165
166
VOL. 50, MARCH 31, 1973 165

enter upon the inquiry proposed in this case, and should
come to the conclusion that the government under which it to an indefinite date, the reasons for the postponement
acted had been put aside and displaced by an opposing being, as attributed to the President in the newspapers,
government, it would cease to be a court, and incapable of that “there was little time to campaign for or against
pronouncing a judicial decision upon the question it ratification” (Daily Express, Dec. 22, 1972); that he would
undertook to try. If it decides at all as a court, it base his decision (as to the date, of the plebiscite) on the
necessarily affirms the existence and authority of the compliance by the Commission (on Elections) on the
government under which it is exercising judicial power.” In publication requirement of the new Charter and on the
other words, since the court would have no choice but to position taken by national leaders” (Daily Express, Dec. 23,
1972); and that “the postponement would give us more time Speaking about the proclamation of martial law, he
to debate on the merits of the Charter.” (Bulletin Today, said:
Dec. 24, 1972.)
The circumstances above enumerated lead us to the “I reiterate what I have said in the past: there is no turning
conclusion that the Citizens Assemblies could not have back for our people.
understood the referendum to be for the ratification of the “We have committed ourselves to this revolution. We have
Constitution, but only for the expression of their views on a pledged to it our future, our fortunes, our lives, our destiny. We
consultative basis. Indeed, if the expression of those views have burned our bridges behind us. Let no man misunderstand
had been intended as an act of ratification (or of rejection the strength of our resolution.” (A Report to the Nation, Jan. 7,
as a logical corollary) — there would have been no need for 1973.)
the Katipunan ng mga Barangay to recommend that the
On the occasion of the signing of Proclamation No. 1102
Constitution should already be deemed ratified, for
on January 17, 1973, the President said the following,
recommendation imports recognition of some higher
among other things:
authority in whom the final decision rests.
But then the President, pursuant to such “... We can, perhaps delimit the power of the people to speak on
recommendation, did proclaim that the Constitution had legal matters, on justiciable matters, on matters that may come
been ratified and had come into effect. The more relevant before the experts and interpreters of the law. But we cannot
consideration, therefore, as far as we can see, should be as disqualify the people from speaking on what we and the people
to what the President had in mind in convening the consider purely political matters especially those that affect the
Citizens Assemblies, submitting the Constitution to them fundamental law of the land.
and proclaiming that the favorable expression of their “... The political questions that were presented to the people
views was an act of ratification. In this respect subjective are exactly those that refer to the form of government which the
factors, which defy judicial analysis and adjudication, are people want ... The implications of disregarding the people’s will
necessarily involved. are too awesome to be even considered. For if any power in
In positing the problem within an identifiable frame of government should even dare to disregard the people’s will there
reference we find no need to consider whether or not the would be valid ground for revolt.
regime established by President Marcos since he declared “... Let it be known to everybody that the people have spoken
martial law and under which the new Constitution was and they will no longer tolerate any attempt to undermine the
submitted to the Citizens Assemblies was a revolutionary stability of their Republic; they will rise up in arms not in revolt
one. The pivotal question is rather whether or not the against the Republic but in protection of the Republic which they
effectivity of the said Constitution by virtue of Presidential have installed. It is quite clear when the people say, we ratify the
Proclamation No. 1102, upon the recommendation of the Constitution, that they mean they will not discard, the
Katipunan ng mga Barangay, was intended to be definite Constitution.”
and irrevocable, regardless of
168
167

VOL. 50, MARCH 31, 1973 167

non-compliance with the pertinent constitutional and On January 19, 1973 the Daily Express published
statutory provisions prescribing the procedure for statement of the President made the day before, from
ratification. We must confess that after considering all the which the following portion is quoted:
available evidence and all the relevant circumstances we
have found no reasonably reliable answer to the question. “... the times are too grave and the stakes too high for us
On one hand we read, for instance, the following public permit the customary concessions to traditional democratic
statements of the President: process to hold back our people’s clear and unequivocal resolve

and mandate to meet and overcome the extraordinary challenges On the other hand, by avowals no less significant if not
presented by these extraordinary times.” so emphatic in terms, President Marcos has professed
fealty to the Constitution. In “Today’s Revolution:
On the same occasion of the signing of Proclamation No. Democracy” he says:
1102 the President made pointed reference to “the demand
of some of our citizens ... that when all other measures “I believe, therefore, in the necessity of Revolution as an
should fail, that the President be directed to organize and instrument of individual and social change ... but that in a
establish a Revolutionary Government,” but in the next democratic society, revolution is of necessity, constitutional,
breath added: “... if we do ratify the Constitution, how can peaceful, and legal.”
we speak of Revolutionary Government? They cannot be
compatible ...” “(I)t is my feeling,” he said, “that the In his TV address of September 23, 1972, President
Citizens’ Assemblies which submitted this recommendation Marcos told the nation:
merely sought articulate their impatience with the status
“I have proclaimed martial law in accordance with the powers
quo that has brought about anarchy, confusion and misery vested in the President by the Constitution of the Philippines.
to the masses ...” The only alternatives which the President “xxx xxx xxx
clearly implied by the foregoing statements were the
“I repeat, this is not a military takeover of civil government
ratification of the new Constitution and the establishment
functions. The Government of the Republic of the Philippines
of a revolutionary government, the latter being
which was established by our people in 1946 continues.
unnecessary, in his opinion, because precisely the
“xxx xxx xxx
Constitution had been ratified. The third obvious “I assure you that I am utilizing this power vested in me by the
alternative was entirely ruled out, namely, a return to the
Constitution to save the Republic and reform our society...
1935 Constitution, for it was the status quo under that
“I have had to use this constitutional power in order that we
Constitution that had caused “anarchy, confusion and
may not completely lose the civil rights and freedom which we
misery.” The message seems clear: rather than return to
cherish...
such status quo, he would heed the recommendation of the “... We are against the wall. We must now defend the Republic
Citizens’ Assemblies to establish a revolutionary with the stronger powers of the Constitution.”
government, because that would be the only other way to
(Vital Documents, pp. 1-12; emphasis supplied).
carry out the reforms he had envisioned and initiated —
reforms which, in all fairness and honesty, must be given 170
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, 170 SUPREME COURT REPORTS ANNOTATED
and certainly unmistakable, in the foregoing Javellana vs. The Executive Secretary
pronouncements, it is that the step taken in connection
with the ratification of the Constitution was meant to be
irreversible, and that nothing In the report of an interview granted by the President to
169
the Newsweek Magazine (published in the issue of January
29, 1973), the following appears:
VOL. 50, MARCH 31, 1973 169 “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?
anyone could say would make the least difference. And if “A. I have never gotten off the constitutional track. Everything
this is a correct and accurate assessment of the situation, I am doing is in accordance with the 1935 Constitution. The only
then we would say that since it has been brought about by thing is that instead of 18-year-olds voting, we have allowed 15-
political action and is now maintained by the government year-olds the right to vote. But the 15-year-olds of today are high-
that is in undisputed authority and dominance, the matter school students, if not graduates, and they are better informed
lies beyond the power of judicial review. than my contemporaries at that age. On the matter of whether it
is constitutional to proclaim martial law, it is constitutional expression of opinions through the usual media vehicles
because the Constitution provides for it in the event of invasion, restricted, we have no means of knowing, to the point of
insurrection, rebellion or immediate danger thereof. We may judicial certainty, whether the people have accepted the
quarrel about whether what we have gone through is sufficient Constitution. In any event, we do not find the issue decisive
cause to proclaim martial law but at the very least there is a insofar as our vote in these cases is concerned. To interpret
danger of rebellion because so many of our soldiers have been the Constitution — that is judicial. That the Constitution
killed. You must remember this (martial law provision) was lifted should be deemed in effect because of popular acquiescence
from the American legislation that was the fundamental law of — that is political, and therefore beyond the domain of
our country. judicial review.
“xxx xxx xxx.” We therefore vote not to give due course to the instant
petitions.
In the light of this seeming ambivalence, the choice of SEPARATE OPINION
what course of action to pursue belongs to the President. BARREDO, J.:
We have earlier made reference to subjective factors on As far as I am concerned, I regard the present petitions
which this Court, to our mind, is in no position to pass as no more than mere reiterations of the Supplemental
judgment. Among them is the President’s own assessment Petitions filed by Counsel Lorenzo M. Tañada on January
of the will of the people as expressed through the Citizens 15, 1973 in the so called Plebiscite Cases decided by this
Assemblies and of the importance of the 1973 Constitution Court on January 22, 1978. Of course, there are
to the successful implementation of the social and economic amplifications of some of the grounds previously alleged
reforms he has started or envisioned. If he should decide and in the course of the unprecedented five-day hearing
that there is no turning back, that what the people that was held from February 12 to 16 last, more extensive
recommended through the Citizens Assemblies, as they and illuminating arguments were
were reported to him, demand that the action he took
pursuant thereto be final and irrevocable, then judicial 172
review is out of the question.
In articulating our view that the procedure of
ratification
171
heard by Us, but, in my estimation, and with due

VOL. 50, MARCH 31, 1973 171 recognition of the sincerity, brilliance and eloquence of
counsels, nothing more cogent and compelling than what
had already been previously presented by Counsel Tañada
is before Us now. Accordingly, I cannot see any reason why
that was followed was not in accordance with the 1935 I should change the position I took in regard to the earlier
Constitution and related statutes, we have discharged our cases. I reiterate, therefore, the vote I cast when these
sworn duty as we conceive it to be. The President should petitions were initially considered by the Court; namely, to
now perhaps decide, if he has not already decided, whether dismiss them.
adherence to such procedure is weighty enough a In view, however, of the transcendental importance of
consideration, if only to dispel any cloud of doubt that may the issues before the Court and the significance to our
now and in the future shroud the nation’s Charter. people and in history of the individual stands of the
In the deliberations of this Court one of the issues members of the Court in relation to said issues and to the
formulated for resolution is whether or not the new final outcome of these cases, and considering that I
Constitution, since its submission to the Citizens reserved before the filing of a more extended opinion, I will
Assemblies, has found acceptance among the people, such take this opportunity to explain further why I hold that the
issue being related to the political question theory 1973 Constitution is already in force, if only to clarify that
propounded by the respondents. We have not tarried on the apart from the people’s right of revolution to which I made
point at all since we find no reliable basis on which to form pointed reference in my previous opinion, I can see now,
a judgment. Under a regime of martial law, with the free after further reflection, that the vote of the people in the
referendum in the Citizens Assemblies held on January 10 accordance with the implementing law, Republic Act 6132,
to 15, 1973, upon the result of which Proclamation 1102 is on November 10, 1970. Known as the Constitutional
based, may be viewed more importantly as a political act Convention of 1971, the assembly began its sessions on
than as a purely legal one with the result that such vote to June 1, 1971. After encountering a lot of difficulties, due to
consider the 1973 Constitution as ratified without the bitter rivalries over important positions and committees
necessity of holding a plebiscite in the form followed in the and an incomprehensible fear of overconcentrating powers
previous ratification plebiscites in 1935 of the Constitution in their officers, the delegates went about their work in
itself, 1937 of women’s suffrage, 1939 of the amendments to comparatively slow pace, and by the third quarter of 1972
the Ordinance Appended to the Constitution, 1940 of the had finished deliberations and second-reading voting only
re-election of the President, the bicameral legislature and on an insignificant number of proposals — until September
the Commission on Elections, 1947 of the parity 21, 1972, when the President, not altogether unexpectedly,
amendment and 1967, rejecting the proposed increase in yet abruptly, issued Proclamation 1081 declaring martial
the members of the House of Representatives and law throughout the country. An attempt was made to have
eligibility of members of Congress to the Constitutional the Convention recessed until after the lifting of martial
Convention, may be deemed as a valid ratification law, and not long after the motion of Delegate Kalaw to
substantially in compliance with the basic intent of Article such effect was turned down, the activities within the
XV of the 1935 Constitution. If indeed this explanation may assembly shifted to high gear. As if unmindful of the arrest
be considered as a modification of my rationalization then, and continued detention of several of its members, the
I wish to emphasize that my position as to the fundamental convention gathered swift momentum in its work, and on
issue regarding the enforceability of the new Constitution November 30, 1972, it approved by overwhelming vote the
is even firmer now than ever before. As I shall elucidate draft of a complete constitution, instead of mere specific
anon, paramount considerations of national import have amendments of particular portions of the Constitution of
led me to the conviction that the best interests of all 1935. Needless to say, before martial law was declared,
concerned would be best served by the Supreme Court there was full and unlimited coverage of the workings in
holding that the 1973 the convention by the mass media. At the same
173 174
Constitution is now in force, not necessarily as a time, public debates and discussions on various aspects of
consequence of the revolutionary concept previously proposed amendments were not uncommon.
suggested by me, but upon the ground that as a political, Earlier, on November 22, 1972, the Convention had
more than as a legal, act of the people, the result of the Resolution No. 5843 proposing “to President Ferdinand
referendum may be construed as a compliance with the Marcos that a decree be issued calling a plebiscite for
substantiality of Article XV of the 1935 Constitution. ratification of the proposed new Constitution on
I appropriate date as he shall determine and providing for
The facts that gave rise to these proceedings are necessary funds therefor.” Acting under this authority,
historical and well known. Generally, they may be taken December 1, 1972, the President issued Presidential Decree
judicial notice of. They revolve around the purported No. 73 submitting the draft constitution for ratification by
ratification of the Constitution of 1973 declared in the people at a plebiscite set for January 15, 1973. This
Proclamation 1102 issued by the President on January 17, order contained provisions more or less similar to the
1973. plebiscite laws passed by Congress relative to the past
Pursuant to a joint resolution of the Congress sitting as plebiscites held in connection with previous proposed
a constituent assembly approved on March 16, 1967, amendments.
delegates to a constitutional convention to propose In connection with the plebiscite thus contemplated,
amendments to the Constitution of 1935 were elected in General Order No. 17 was issued ordering and enjoining
the authorities to allow and encourage public and free WHEREAS, such barangays (citizens assemblies) desire that
discussions on proposed constitution. Not only this, they be given legal status and due recognition as constituting the
subsequently, under date of December 17, 1972, the genuine, legitimate and valid expression of the popular will; and
President ordered the suspension the effects of martial law WHEREAS, the people would like the citizens assemblies to
and lifted the suspension of privilege of the writ of habeas conduct immediately a referendum on certain specified questions
corpus insofar as activities connected with the ratification such as the ratification of the new Constitution, continuance of
of the draft constitution were concerned. These two orders martial law, the convening of Congress on January 22, 1973, and
were not, however, to last very long. On January 7, 1973, the elections in November 1973 pursuant to the 1935
the President, invoking information related to him that the Constitution.
area of public debate and discussion had opened by his NOW, THEREFORE, I, FERDINAND E. MARCOS, President
previous orders was being taken advantage of by of the Philippines, by virtue of the powers vested in me by the
subversive elements to defeat the purposes for which they Constitution as Commander-in-Chief of all Armed Forces of the
were issued and to foment public confusion, withdrew said Philippines, do hereby declare as part of the law of the land the
orders and enjoined full and stricter implementation of following:
martial law. 1. The present barangays (citizens assemblies) are created
In the meantime, the President had issued on December under Presidential Decree No. 86 dated December 31, 1972, shall
3, 1972 Presidential Decree No. 86 creating Citizens constitute the base for citizen participation in governmental
Assemblies “so as to afford ample opportunities for the affairs and their collective views shall be considered in the
citizenry to express their views on important national formulation of national policies or programs and, wherever
issues” and one of the questions presented to said practicable, shall be translated into concrete and specific decision;
assemblies was: “Do you like the plebiscite on the proposed 2. Such barangays (citizens assemblies) shall consider vital
Constitution to be held later” So, the same order of January national issues now confronting the country, like the holding of
7, 1973, General Order No. 20, the President ordered, “that the plebiscite on the new Constitution, the continuation of martial
the plebiscite scheduled to be held January 15, 1973, be rule, the convening of Congress on January 22, 1973, and the
postponed until further notice.” holding of elections in November 1973, and others in the future,
which shall
175
176
VOL. 50, MARCH 31, 1973 175


serve as guide or basis for action or decision by the national
In the meanwhile also, on January 5, 1973, the
government;
President issued Presidential Decree, No. 86-A providing as 3. The barangays (citizens assemblies) shall conduct between
follows: January 10 and 15, 1973, a referendum on important national
“PRESIDENTIAL DECREE NO. 86-A issues, including those specified in paragraph 2 hereof, and
STRENGTHENING AND DEFINING THE ROLE OF submit results thereof to the Department of Local Governments
BARANGAYS (CITIZENS ASSEMBLIES) Community Development immediately thereafter, pursuant to
WHEREAS, on the basis of preliminary and initial reports express will of the people as reflected in the reports gathered from
from the field as gathered from barangays (citizens assemblies) the many thousands of barangays (citizens assemblies)
that have so far been established, the people would like to decide throughout the country.
for themselves questions or issues, both local and national, 4. This Decree shall take effect immediately.
affecting their day-to-day lives and their future; Done in the City of Manila, this 5th day of January, in the year
WHEREAS, the barangays (citizens assemblies) would like of Our Lord, nineteen hundred and seventy three.
themselves to be the vehicle for expressing the views of the people
And on January 7, 1973, this was followed by Presidential
on important national issues;
Decree No. 86-B reading thus:

“PRESIDENTIAL DECREE NO. 86-B “(5) Do you like the way President Marcos is running the
DEFINING FURTHER THE ROLE OF BARANGAYS affairs of the government?.”
(CITIZENS ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential but on January 11, 1973, six questions were added as
Decree No. 86 dated December 31, 1972, the Barangays (Citizens follows:
Assemblies) have petitioned the Office of the President to submit
“(1) Do you approve of the citizens assemblies as the base of
them for resolution important national issues;
popular government to decide issues of national interests?
WHEREAS, one of the questions persistently mentioned refers
to the ratification of the Constitution proposed by the 1971 178
Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that 178 SUPREME COURT REPORTS ANNOTATED
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,
“(2) Do you approve of the New Constitution?
economic and social fields, and that it is now necessary to bring
“(3) Do you want a plebiscite to be called to ratify the new
this down to the level of the people themselves through the
Constitution?
Barangays or Citizens Assemblies;
“(4) Do you want the elections to be held in November, 1973 in
177 accordance with the provisions of the 1935 Constitution?
“(5) If the elections would not be held, when do you want it to
VOL. 50, MARCH 31, 1973 177 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
NOW THEREFORE, I, FERDINAND E. MARCOS, President questions more or less suggestive of the answer desired. It
of the Philippines, by virtue of the powers in me vested by the may assumed that the said “comments” came from official
Constitution, do hereby order that important national issues shall sources, albeit specifically unidentified. As petitioners point
from time to time be referred to the Barangays (Citizens out, the most relevant of these “comments” were the
Assemblies) for resolution in accordance with Presidential Decree following:
No. 86-A dated January 5, 1973 and that the initial referendum
shall include the matter of ratification of the Constitution “COMMENTS ON
proposed by the 1971 Constitutional Convention. “xxx xxx xxx
The Secretary of the Department of Local Governments and “QUESTION No. 2
Community Development shall insure the implementation of this But we do not want the Ad Interim Assembly to be
Order. convoked. Or if it is to be convened at all, it should not be
Done in the City of Manila, this 7th day of January in the year done so until after at least seven (7) years from the approval
of Our Lord, nineteen hundred and seventy-three." of the New Constitution by the Citizens Assemblies.
“QUESTION No. 3
And so it was that by January 10, 1973, when the The vote of the Citizens Assemblies should already be
Citizens Assemblies thus created started the referendum considered the plebiscite on the New Constitution.
which was held from said date to January 15, 1973, the If the Citizens Assemblies approve of the new Constitution then
following questions were submitted to them: the new Constitution should be deemed ratified.”
“(1) Do you like the New Society? The Solicitor General claims, and there seems to be no
“(2) Do you like the reforms under martial law?
“(3) Do you like Congress again to hold sessions? 179
“(4) Do you like the plebiscite to be held later?

VOL. 50, MARCH 31, 1973 179 Javellana vs. The Executive Secretary
persons who are residents of the barrio, district or ward for at
least six months, fifteen years of age or over, citizens of the
showing otherwise, that the results of the referendum were Philippines and who are registered in the list of Citizen Assembly
determined in the following manner: members kept by the barrio, district or ward secretary;
“Thereafter, the results of the voting were collated and sent to WHEREAS, the said Citizens Assemblies were establish
the Department of Local Governments. The transmission of the precisely to broaden the base of citizen participation in the
results was made by telegram, telephone, the provincial democratic process and to afford ample opportunity for the citizen
government SSB System in each province connecting all towns; to express their views on important national issues;
the SSB communication of the PACD connecting most provinces; WHEREAS, responding to the clamor of the people an
the Department of Public Information Network System; the pursuant to Presidential Decree No. 86-A, dated January 5, 1973,
Weather Bureau Communication System connecting all provincial the following questions were posed before Citizens’ Assemblies or
capitals and the National Civil Defense Network connecting all Barangays: Do you approve of the New Constitution? Do you still
provincial capitals. The certificates of results were then flown to want a plebiscite to be called to ratify the new Constitution?
Manila to confirm the previous figures received by the WHEREAS, fourteen million nine hundred seventy-six
aforementioned means of transmission. The certificates of results thousand five hundred sixty one (14,976,561) members of all the
tallied with the previous figures taken with the exception of few Barangays (Citizens Assemblies) voted for the adoption of the
cases of clerical errors. proposed Constitution, as against seven hundred forty-three
“The Department adopted a system of regionalizing the thousand eight hundred sixty nine (743,869) who voted for its
receiving section of the Citizens Assemblies operation at the rejection; while on the question as to whether or not the people
Department wherein the identity of the barrio and the province would still like a plebiscite to be called to ratify the new
was immediately given to a staff in charge of each region. Every Constitution fourteen million two hundred ninety-eight thousand
afternoon at 2:00 o’clock, the 11 regions submitted the figures eight hundred fourteen (14,298,814) answered that there was no
they received from the field to the central committee to tabulate need for plebiscite and that the vote of the Barangays (Citizens
the returns. The last figures were tabulated at 12 midnight of Assemblies) should be considered as a vote in a plebiscite;
January 16, 1973 and early morning of January 17, 1973 and WHEREAS, since the referendum results show that more than
were then communicated to the President by the Department of ninety-five (95) percent of the members of the Barangays (Citizen
Local Governments.” Assemblies) are in favor of the New Constitution, the Katipunan
ng Mga Barangay has strongly recommended that the new
The development culminated in the issuance by the Constitution should already be deemed ratified by the Filipino
President of Proclamation 1102 on January 17, 1973. Said people;
proclamation reads: NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested by the
“PROCLAMATION NO. 1102 ANNOUNCING THE Constitution, do hereby certify and proclaim that the Constitution
RATIFICATION BY THE FILIPINO PEOPLE OF THE proposed by the nineteen hundred and seventy-one (1971)
CONSTITUTION PROPOSED BY THE 1971 Constitutional Convention has been ratified by an
CONSTITUTIONAL CONVENTION. overwhelmingly majority of all of the votes cast by the members of
WHEREAS, the Constitution proposed by the nineteen all the Barangays (Citizens Assemblies) throughout the
hundred seventy-one Constitutional Convention is subject to Philippines, and has thereby come into effect.
ratification by the Filipino people; IN WITNESS WHEREOF, I have hereunto set my hand and
WHEREAS, Citizens Assemblies were created in barrios in caused the seal of the Republic of the Philippines to be affixed.
municipalities and in districts/wards in chartered cities pursuant
to Presidential Decree No. 6, dated December 31, 1972, composed 181
of all
VOL. 50, MARCH 31, 1973 181
180


Done in the City of Manila, this 17th day of January, in the 182 SUPREME COURT REPORTS ANNOTATED
year of Our Lord, nineteen hundred and seventy-three.” Javellana vs. The Executive Secretary
The first attempt to question the steps just enumerated

taken by the President was in the so-called Plebiscite respondents to answer the same the next Wednesday,
January 17th, before the hour of the hearing of the petition
Cases, ten in number, which were filed by different
which set for 9:30 o’clock in the morning of that day. The
petitioners during the first half of December 1972.1 Their
common target then was Presidential Decree No. 73, but details what happened that morning form part of the
before the said cases could be decided, the series of moves recital of facts the decision rendered by this Court in the
tending in effect to make them moot and academic insofar ten cases on January 22, 1973 and need not be repeated
here. Suffice it to state no that before the hearing could be
as they referred exclusively to the said Presidential Decree
closed and while Counsel Tañada was still insisting on his
began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential prayer for preliminary injunction or restraining order, the
Decree No. 86-B, also above quoted, was issued and the six Secretary of Justice arrived and personally handed to the
additional questions which were first publicized on Chief Justice a copy Proclamation 1102 which had been
January 11, 1973 were known, together with the issued at about 11:00 o’clock that same morning. In other
words, the valiant and persistent efforts of petitioners and
“comments,” petitioners sensed that a new and unorthodox
their counsels were overtaken by adverse developments,
procedure was being adopted to secure approval by the
people of the new Constitution, hence Counsel Tañada, not and in the mind of the majority of the members of the
being satisfied with the fate of his urgent motion for early Court, the cases had become academic. For my part, I took
decision of the above ten cases dated January 12, 1973, the view that even on the basis of the supplemental
petition and the answer thereto filed by respondents, the
filed on January 15, 1973, his supplemental motion seeking
Court could already decide on the fundamental issue of the
the prohibition against and injunction of the proceedings
going on. Principal objective was to prevent that the validity Proclamation 1102, as Justices Zaldivar, Antonio
President be furnished the report of the results of the and Esguerra also believed, inasmuch as Counsel Tañada’s
referendum and thereby disable him from carrying out pleading and argument had anticipated its issuance, but
what petitioners were apprehensively foreseeing would be the majority felt it was not ready to resolve the matter, for
lack, according them, of full ventilation, and so, the
done — the issuance of some kind of proclamation, order or
decision reserved petitioners the filing of the “appropriate”
decree, declaring that the new Constitution had been
ratified. Reacting swiftly, the Court resolved on the same cases, evidently, the present ones.
day, January 15, which was Monday, to consider the II
supplemental motion as a supplemental petition and to At the threshold, I find myself confronted by a matter
which, although believed to be inconsequential by my
require the
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
1 Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo
as President and President Pro Tempore of the Senate, to
C. Sanidad vs. Comelec, L-35929, January 22, 1973; Gerardo Roxas, etc.,
the effect that change in the composition of the Supreme
et al. vs. Comelec, et al., L-35940, January 22, 1973; Eddie B. Monteclaro
Court provided for the 1973 Constitution, from the 11-man
vs. Comelec, et al., L-35941, January 22, 1973; Sedfrey A. Ordoñez, et al.
tribunal under the 1935 Constitution to a 15-man Court,
vs. The National Treasurer of the Philippines, et al., L-35942, January 22,
makes of these cases which were filed after January 17,
1973; Vidal Tan, et al. vs. Comelec, et al., L-35948, January 22, 1973; Jose
1973 the date when Proclamation 1102 declared the new
W. Diokno, et al., vs. Comelec, L-35953, January 22, 1973; Jacinto
Constitution as ratified, political nature and beyond our
Jimenez vs. Comelec, et al., L-35961, January 22, 1973; Raul M. Gonzales
jurisdiction. The main consideration submitted in this
vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs.
connection is that inasmuch as the number votes needed
Comelec, et al., L-35979, January 22, 1973.
for a decision of this Court has been increased
182 183

VOL. 50, MARCH 31, 1973 183 184

from six to eight in ordinary cases and from eight to ten for Javellana vs. The Executive Secretary
the declaration of unconstitutionality of a treaty, executive
agreement 2 or law, the Court would have to resolve first as
XV of the old Constitution, a cloud would exist as to
a prejudicial question whether the Court is acting in these
efficacy of the dispositive portion of Our decision dismiss
cases as the 15-man or the 11-man Court, in which event, it
these cases, even if we have it understood that by the vote
would be faced with the dilemma that if it acts either as of justices in favor of such dismissal, We intended to mean
the former or as the latter, it would be prejudging the very the implementation or enforcement of the new Constitution
matter in issue one way or the other, and, in effect, it
now being done could continue.
would be choosing between two constitutions, which is a
Be that as it may, I am against leaving such an
political determination not within the Court’s competence.
important point open to speculation. By nature I am averse
While I agree that the problem is at first blush rather
to ambiguity and equivocation and as a member of the
involved, I do not share the view that the premises laid Supreme Court, last thing I should knowingly countenance
down by counsel necessarily preclude this Court from
is uncertainty as to the juridical significance of any
taking a definite stand on whether the Court is acting in
decision of the Court which is precisely being looked upon
these cases as the 15-Man or the 11-man Court. I feel very
as the haven in which doubts are supposed to be
strongly that the issue should not be ignored or dodged, if
authoritatively dispelled. Besides, from very nature of
only to make the world know that the Supreme Court of things, one thing is indubitably beyond dispute — we
the Philippines is never incognizant of the capacity in cannot act in both capacities of a 15-man and an 11-man
which it is acting, much less lacking in courage or wisdom
Court at the same time, in like manner that it is
to resolve an issue that relates directly to its own
inconceivable that the 1935 and 1973 Constitution can be
composition. What a disgrace it would be to admit that this
considered by Us both in force. Our inescapable duty is to
Supreme Court does not know, to use a common apt
make a choice between them, according to what law and
expression, whether it is fish or fowl. Withal, scholars and other considerations inherent to our function dictate. I
researchers who might go over our records in the future
cannot bear the thought that someone may someday say
will inevitably examine minutely how each of us voted and
that the Supreme Court of the Philippines once decided a
upon what considerations we have individually acted, and,
case without knowing the basis of its author to act or that
indeed, doubts may arise as to whether or not, despite the
it was ever wanting in judicial courage to define the same.
general result we might announce, there had been the Accordingly, with full consciousness of my limitations
requisite number of votes for a valid collegiate action. but compelled by my sense of duty and propriety to
For instance, it may be argued that the present cases do
straighten out this grave of issue touching on the capacity
not involve an issue of unconstitutionality, hence, if we are
in which the Court acting in these cases, I hold that we
acting as the 11-man Court, only six votes would suffice to
have no alternative but adopt in the present situation the
declare Proclamation 1102 ineffective, and if upon analysis
orthodox rule that when validity of an act or law is
of our respective opinions it should be inferable therefrom challenged as being repugnant constitutional mandate, the
that six of us have considered the matter before the Court same is allowed to have effect until the Supreme Court
as justiciable and at the same time have found the
rules that it is unconstitutional. Stated differently, We
procedure of ratification adopted in Presidential Decrees
have to proceed on the assumption that the new
86-A and 86-B and related orders of the President as not
Constitution is in force and that We are acting in these
being in conformity with Article 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.
2 Executive Agreements are not included in the corresponding The truth of matter is simply that in the normal and logical
provision of the 1935 Constitution. conduct governmental activities, it is neither practical nor

wise to defer the course of any action until after the courts courts considering such orders and decrees as forming part
have ascertained of the law of the land in making their orders and decisions,
whereas the
185
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Javellana vs. The Executive Secretary 186 SUPREME COURT REPORTS ANNOTATED
their legality, not only because if that were to be the rule,
the functioning of government would correspondingly be Supreme Court is holding, as it were, their effectivity at
undesirably hesitative and cumbersome, but more bay if it is not being indifferent to or ignoring them.
importantly, because the courts must at the first instance It is suggested that the President, being a man of law,
accord due respect to the acts of the other departments, as committed to abide by the decision of the Supreme Court,
otherwise, the smooth running of the government would and if the Court feels that it cannot in the meantime
have to depend entirely on the unanimity of opinions consider the enforcement of the new Constitution, he can
among all its departments, which is hardly possible, unless wait for its decision. Accepting the truth of this assertion, it
it is assumed that only the judges have the exclusive does necessarily follow that by this attitude of the
prerogative of making and enforcing the law, aside from President, considers the Supreme Court as still operating
being its sole interpreter, which is contrary to all norms of under the Constitution. Quite on the contrary, it is a fact
juridical and political thinking. To my knowledge, there is that he has given instructions for the payment of the
yet no country in the world that has recognized judicial justices in accordance with the rate fixed in the New
supremacy as its basic governmental principle, no matter Constitution. Not only that, official alter ego, the Secretary
how desirable we might believe the idea to be. of Justice, has been shoving this Court, since January 18,
Indeed, it is not hard to visualize the difficulty if not 1973, all matters related to the administrative supervision
absurdity of Our acting on the assumption that this Court of the lower courts which by the new charter has been
is still functioning under the 1935 Constitution. It is transferred from the Department of Justice to the Supreme
undeniable that the whole government, including the Court, and as far as I know, President has not
provincial, municipal and barrio units and not excluding countermanded the Secretary’s steps in that direction.
the lower courts up to the Court of Appeals, is operating That, on the other hand, the President has not augmented
under the 1973 Constitution. Almost daily, presidential the justices of the Court to complete the prescribed number
orders and decrees of the most legislative character of fifteen is, in my appraisal, of no consequence considering
affecting practically every aspect of governmental and that with the presence of ten justices who are the Court
private activity as well as the relations between the now, there is a working quorum, and the addition of new
government and the citizenry are pouring out from justices cannot in anyway affect the voting on the
Malacañang under the authority of said Constitution. On constitutional questions now before Us because, while
the other hand, taxes are being exacted and penalties in there sufficient justices to declare by their unanimous vote
connection therewith are being imposed under said orders illegality of Proclamation 1102, the votes of the justices to
and decrees. Obligations have been contracted and added would only be committed to upholding the same,
business and industrial plans have been and are being since they cannot by any standard be expected to vote
projected pursuant to them. Displacements of public against legality of the very Constitution under which they
officials and employees in big numbers are going on in would be appointed.
obedience to them. For the ten justices of the Supreme Moreover, what makes the premise of presumptive valid
Court to constitute an island of resistance in the midst of preferable and, even imperative, is that We are dealing
these developments, which even unreasoning obstinacy here with a whole constitution that radically modifies or
cannot ignore, much less impede, is unimaginable, let alone alters only the form of our government from presidential
the absurd and complicated consequences such a position parliamentary but also other constitutionally institutions
entails in the internal workings within the judiciary vitally affecting all levels of society. It is, to mind,
amount its different components, what with the lower
unrealistic to insist on that, fundamentally, the 1973 (2) its transitory provisions expressly continue the
Constitution is the same 1935 Constitution, with a few effectivity of existing laws, offices and courts as well as the
tenure of all incumbent officials, not adversely affected by
187
it, which would
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VOL. 50, MARCH 31, 1973 187
improvements. A cursory perusal of the former should Javellana vs. The Executive Secretary
convince anyone that it is in essence a new one. While it
does retain republicanism as the basic governmental tenet, have been unnecessary if the old constitution were being
the institutional changes introduced thereby are rather merely amended.
radical and its social orientation is decidedly more The new Constitution, in its Section 10, Article XVII,
socialistic, just as its nationalistic features are somewhat provides that “(T)he incumbent members of the Judiciary
different in certain respects. One cannot but note that the (which include the Chief Justice and Associate Justices of
change embraces practically every part of the old charter, Supreme Court) may continue in office (under the
from its preamble down to its amending and effectivity constitution) until they reach the age of seventy years, etc.”
clauses, involving as they do the statement of general By virtue of the presumptive validity of the new charter, all
principles, the citizenship and suffrage qualifications, the of form part of the 15-man-Court provided for therein
articles on the form of government, the judiciary correspondingly, We have in legal contemplation, ceased in
provisions, the spelling out of the duties and the meanwhile to be members of the 11-man-Court in the
responsibilities not only of citizens but also of officers of the 1935 Constitution. Should the Court finally decide that the
government and the provisions on the national economy as Constitution is invalid, then We would automatically revert
well as the patrimony of the nation, not to mention the to our positions in the 11-man- Court, otherwise, We would
distinctive features of the general provisions. What is more, just continue to be in our membership in the 15-man-Court,
the transitory provisions notably depart from traditional unless We feel We cannot in conscience accept the legality
and orthodox views in that, in general, the powers of of existence. On the other hand, if it is assumed that We
government during the interim period are more or less are the 11-man-Court and it happens that Our collective
concentrated in the President, to the extent that the decision is in favor of the new constitution, it would be
continuation or discontinuance of what is now practically a problematical for any dissenting justice to consider himself
one-man-rule, is even left to his discretion. Notably, the as included automatically in the 15-man-Court, since that
express ratification of all proclamations, orders, decrees would tantamount to accepting a position he does not
and acts previously issued or done by the President, honestly believe exists.
obviously meant to encompass those issued during martial III
law, is a commitment to the concept of martial law powers In brief, the main contention of the petitioners is that
being implemented by President Marcos, in defiance of Proclamation 1102 is invalid because the ratification of the
traditional views and prevailing jurisprudence, to the effect 1973 Constitution it purports to declare as having taken
that the Executive’s power of legislation during a regime of place as a result of the referendum above-referred to is
martial law is all inclusive and is not limited to the matters ineffective since it cannot be said on the basis of the said
demanded by military necessity. In other words, the new referendum that said Constitution has been “approved by a
constitution unlike any other constitution countenances the majority of the votes cast at an election” in the manner
institution by the executive of reforms which normally is prescribed by Article XV the Constitution of 1935. More
the exclusive attribute of the legislature. specifically, they maintain that the word “election” in the
Withal, the best proofs that by its expressed and implied said Article has already acquired a definite accepted
intent, the Constitution of 1973 is a new one, are that (1) meaning out of the consistent holding in the past of
Section 16 of its Article XVII which provides that this ratification plebiscites, and accordingly, no other form of
constitution shall “supersede the Constitution of nineteen ratification can be considered contemplated by the framers
hundred and thirty-five and all amendments thereto” and of the Old Constitution than that which had been followed
1935, 1937, 1939, 1940, 1946 and 1967, the last three or certification through Proclamation 1102 itself that the New
four which were held under the supervision of the Constitution has been approved by a majority of the people
Commission on and
189 190
Elections. Furthermore, they emphatically deny the having in mind facts of general knowledge which I have
veracity of the proclaimed results of the referendum judicial notice of, I am in no position to deny that the result
because, according to them the referendum was a farce and of the referendum was as the President had stated. I can
its results were manufactured or prefabricated, considering believe that the figures referred to in the proclamation may
that Mr. Francisco Cruz, who is supposed to have not accurate, but I cannot say in conscience that all of them
submitted the final report to the President, which served as are manufactured or prefabricated, simply because I saw
basis for Proclamation 1102, had no official authority to with own eyes that people did actually gather and listen
render the same, and it is inconceivable and humanly discussions, if brief and inadequate for those who are
impossible for anyone to have been able to gather, tabulate abreast of current events and general occurrences, and that
and canvass the 15 million votes allegedly reported within they did vote. I believe I can safely say that what I have
the short period of time employed. Of course, they also seen have also been seen by many others throughout the
contend that in any event, there was no proper submission country and unless it can be assumed, which honestly, I do
because martial law per se creates constructive duress not believe to be possible, that in fact there were actually
which deprives the voters of the complete freedom needed no meetings held and no voting done in more places than
for the exercise of their right of choice and actually, there those wherein there were such meetings and votings, I am
was neither time nor opportunity for real debate before not prepared to discredit entirely the declaration that there
they voted. was voting and that the majority of the votes were in favor
On the other hand, the position of the Solicitor General of the New Constitution. If in fact there were substantially
as counsel for the respondents is that the matter raised in less than 14 million votes of approval, the real figure, in my
the petitions is a political one which the courts are not estimate, could still be significant enough and legally
supposed to inquire into, and, anyway, there has been a sufficient to serve as basis for a valid ratification.
substantial compliance with Article XV of the 1935 It is contended, however, that the understanding was
Constitution, inasmuch as, disregarding unessential that the referendum among the Citizens Assemblies was to
matters of form, the undeniable fact is that the voting in be in the nature merely of a loose consultation and not an
the referendum resulted in the approval by the people of outright submission for purposes of ratification. I can see
the New Constitution. that at the outset, when the first set of questions was
I need not dwell at length on these variant positions of released, such may have been the idea. It must not be lost
the parties. In my separate opinion in the Plebiscite Cases, sight of, however, that if the newspaper reports are to be
I already made the observation that in view of the lack of believed, and I say this only because petitioners would
solemnity and regularity in the voting as well as in the consider the newspapers as the official gazettes of the
manner of reporting and canvassing conducted in administration, the last set of six questions were included
connection with the referendum, I cannot say that Article precisely because the reaction to the idea of mere
XV of the Old Constitution has been complied with, albeit I consultation was that the people wanted greater direct
held that nonetheless, the Constitution of 1973 is already participation, thru the Citizens Assemblies, in decision-
in force. In order, however, to make myself clearer on some making regarding matters of vital national interest. Thus,
relevant points, I would like to add a few considerations to looking at things more understandingly and realistically
what I have already said in the former cases. the two questions emphasized by counsel, namely, (1) Do
In my opinion in those cases, the most important point I you approve of the New Constitution? and (2) Do you want
took into account was that in the face of the Presidential plebiscite to be called to ratify the new Constitution?
should be considered no longer as loose consultations but as tell, I myself did not realize the difference until Justice
direct inquiries about the desire of the voters regarding the Castro gave it emphasis. Besides, reading the question in
matters mentioned. Accordingly, I take it that if the the light of the accompanying “comment” corresponding to
majority had it in particular, I am certain that any one who answered
the same understood it in no other sense than a direct
191
inquiry as to whether or not, as a matter of fact,
192
VOL. 50, MARCH 31, 1973 191
expressed disapproval of the new Constitution, the logical Javellana vs. The Executive Secretary
consequence would have been the complete abandonment
of the idea of holding any plebiscite at all. On the other he approves the New Constitution, and naturally,
hand, it is very plain to see that since the majority has affirmative answer must be taken as a categorical vote of
already approved the new Constitution, a plebiscite would approval thereof, considering, particularly, that according
be superfluous. Clear as these rationalizations may be, it to the reported result of the referendum said answer was
must have been thought that if the holding of a plebiscite even coupled with the request that the President defer the
was to be abandoned, there should be a direct and convening of the Interim National Assembly.
expressed desire of the people to such effect in order to It is also contended that because of this reference in
forestall as much as possible any serious controversy answer to that question to the deferment of the convening
regarding the non-holding of the plebiscite required by the of the interim assembly, the said answer is at best a
letter of Section 16 of Article XVII, the effectivity clause, of conditional approval not proper nor acceptable for purposes
the new Constitution. Oddly enough, the “comments” of ratification plebiscite. The contention has no basis. In
accompanying the questions do strongly suggest this view. interest of accuracy, the additional answer proposed in
And as it turned out, the majority found no necessity in pertinent “comment” reads as follows: “But we do not want
holding a plebiscite. Ad Interim Assembly to be convoked etc.” On the
In connection with the question, Do you approve of the assumption that the actual answer, as reported, was of
New Constitution? capital is being made of the point that similar tenor, it is not fair to ascribe to it the imposition of
as so framed, the thrust of the said question does not seek a condition. At most, the intention is no more than a
an answer of fact but of opinion. It is argued that it would suggestion or a wish.
have been factual were it worded categorically thus — Do As regards said “comments,” it must be considered that
you approve the New Constitution? The contention would a martial law was declared, the circumstances surrounding
have been weighty were it not unrealistic. I remember making of the Constitution acquired a different and more
distinctly that the observation regarding the construction meaningful aspect, namely, the formation of a new society.
of the subject question was not originally made by any of From the point of view of the President and on the basis of
the talented counsels for petitioners. It came from Mr. intelligence reports available to him, the only way to meet
Justice Fred Ruiz Castro whose mastery of the English situation created by the subversive elements was to
language can rightly be the cause of envy of even professors introduce immediately effective reforms calculated to
of English. None of the other members of the Court, as far redeem the people from the depth of retrogression and
as I can recall, ever noticed how the said question is stagnation caused by rampant graft and corruption in high
phrased, or if anyone of Us did, I am not aware that he places, influence peddling, oligarchic political practices,
gave it more than passing attention. What I mean is that if private armies, anarchy, deteriorating conditions of peace
neither any of the distinguished and learned counsels nor and order, the so inequalities widening the gap between
any member of the Court understood the said question the rich and the poor, and many other deplorable long
otherwise than calling for a factual answer instead of a standing maladies crying for early relief and solution.
mere opinion, how could anyone expect the millions of Definitely, as in the case of rebellious movement that
unlettered members of the Citizens Assemblies to have threatened the Quirino Administration, the remedy was far
noticed the point brought out by Justice Castro? Truth to from using bullets alone. If a constitution was to be
approved as an effective instrument towards the objectionable features of martial law have not actually
eradication of such grave problems, it had to be approved materialized, if only because the implementation of martial
without loss of time and sans the cumbersome processes law since its inception has been generally characterized by
that, from the realistic viewpoint, have in the past restraint and consideration, thanks to the expressed wishes
obstructed rather than hastened the progress of the people. of the President that the same be made “Philippine style,”
Stated otherwise, in the context of actualities, the evident which means without
193 194
objective in having a new constitution is to establish new the rigor that has attended it in other lands and other
directions in the pursuit of the national aspirations and the times. Moreover, although the restrictions on the freedom
carrying out of national policies. Only by bearing these of speech, the press and movement during martial law do
considerations in mind can the “comments” already have their corresponding adverse effects on the area of
referred to be properly appreciated. To others said information which should be open to a voter, in its real
“comments” may appear as evidence of corruption of the sense what “chills” his freedom of choice and mars his
will of those who attended the assemblies, but actually, exercise of discretion is suspension of the privilege of the
they may also be viewed in the same light as the sample writ of habeas corpus. The reason is simply that a man may
ballots commonly resorted to in the elections of officials, freely and correctly vote even if the needed information he
which no one can contend are per se means of coercion. Let possesses as to the candidates or issues being voted upon is
us not forget that the times are abnormal, and prolonged more or less incomplete, but when he is subject to arrest
dialogue and exchange of ideas are not generally possible, and detention without investigation and without being
nor practical, considering the need for faster decisions and informed of the cause thereof, that is something else which
more resolute action. After all voting on a whole new may actually cause him to cast a captive vote. Thus it is the
constitution is different from voting on one, two or three suspension of the writ of habeas corpus accompanying
specific proposed amendments, the former calls for nothing martial law that can cause possible restraint on the
more than a collective view of all the provisions of the freedom choice in an election held during martial law. It is
whole charter, for necessarily, one has to take the good a fact, however, borne by history and actual experience,
together with the bad in it. It is rare for anyone to reject a that in the Philippines, the suspension of the privilege of
constitution only because of a few specific objectionable the writ habeas corpus has never produced any chilling
features, no matter how substantial, considering the ever effect upon the voters, since it is known by all that only
present possibility that after all it may be cured by those who run afoul the law, saving inconsequential
subsequent amendment. Accordingly, there was need to instances, have any cause for apprehension in regard to the
indicate to the people the paths open to them in their quest conduct by them of the normal activities of life. And so it is
for the betterment of their conditions, and as long as it is recorded that in the elections 1951 and 1971, held while
not shown that those who did not agree to the suggestions the privilege of writ of habeas corpus was under
in the “comments” were actually compelled to vote against suspension, the Filipino voters gave the then opposition
their will, I am not convinced that the existence of said parties overwhelming if not sweeping victories, in defiance
“comments” should make any appreciable difference in the of the respective administrations that ordered the
court’s appraisal of the result of the referendum. suspensions.
I must confess that the fact that the referendum was At this juncture, I think it is fit to make it clear that I
held during martial law detracts somehow from the value am not trying to show that the result of the referendum
that the referendum would otherwise have had. As I may considered as sufficient basis for declaring that the
intimated, however, in my former opinion, it is not fair to New Constitution has been ratified in accordance with the
condemn and disregard the result of the referendum barely amending clause of the 1935 Constitution. I reiterate that
because of martial law per se. For one thing, many of the in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I the purposes of these cases, to judicial tape and measure, to
may, certain impression regarding the general conditions find out with absolute precision the veracity of the total
obtaining during and in relation to the referendum which number of votes actually cast. After all, the claims that
could have in one way or another affected the exercise of upon a comparison of conflicting reports, cases of excess
the freedom of choice and the use of discretion by the votes may be found, even if extrapolated will not, as far as I
members of the Citizens Assemblies, to the end that as far can figure out, suffice to overcome the outcome officially
as the same conditions may be relevant in my subsequent announced. Rather than try to form a conclusion out of the
discussions of the acceptance by the people of the New raw evidence before Us which the parties did not care to
Constitution they may also be considered. really complete, I feel safer by
195 196
VOL. 50, MARCH 31, 1973 195


referring to the results announced in the proclamation
IV
itself. Giving substantial allowances for possible error and
It is my sincere conviction that the Constitution of 1973
downright manipulation, it must not be overlooked that,
has been accepted or adopted by the people. And on this
after all, their having been accepted and adopted by the
premise, my considered opinion is that the Court may no
President, based on official reports submitted to him in due
longer decide these cases on the basis of purely legal
course of performance of duty of appropriate subordinate
considerations. Factors which are non-legal but
officials, elevated them to the category of an act of a
nevertheless ponderous and compelling cannot be ignored,
coordinate department of the government which under the
for their relevancy is inherent in the issue itself to be
principle separation of powers is clothed with presumptive
resolved.
correctness or at least entitled to a high degree of
In my opinion in the Plebiscite Cases, I joined my
acceptability, until overcome by better evidence, which in
colleagues in holding that the question of whether or not
these cases does not exist. In any event, considering that
there was proper submission under Presidential Decree No.
due to the unorthodoxy of the procedure adopted and the
73 is justiciable, and I still hold that the propriety of
difficulty of an accurate checking of all the figures, I am
submission under any other law or in any other form is
unable to conceive of any manageable means of acquiring
constitutionally a fit subject for inquiry by the courts. The
information upon which to predicate a denial, I have no
ruling in the decided cases relied upon by petitioners are to
alternative but to rely on what has been officially declared.
this effect. In view, however, of the factual background of
At this point, I would venture to express the feeling that if
the cases at bar which include ratification itself, it is
it were not generally conceded that there has been
necessary for me to point out that when it comes to
sufficient showing of the acceptance in question by this
ratification, I am persuaded that there should be a
time, there would have been already demonstrative and
boundary beyond which the competence of the courts no
significant indications of a rather widespread, if not
longer has any reason for being, because the other side is
organized resistance in one form or another. Much as they
exclusively political territory reserved for their own
are to be given due recognition as magnificent
dominion by the people.
manifestations of loyalty and devotion to principles, I
The main basis of my opinion in the previous cases was
cannot accord to the filing of these cases as indicative
acceptance by the people. Others may feel there is not
enough of the general attitude of the people.
enough indication of such acceptance in the record and in
It is true that in the opinion I had the privilege of
the circumstances the Court can take judicial notice of. For
penning the Court in Tolentino vs. Comelec, 41 SCRA 702,
my part, I consider it unnecessary to be strictly judicial in
I made strong and unequivocal pronouncements to the
inquiring into such fact. Being personally aware, as I have
effect that any amendment to the Constitution of 1935, to
already stated, that the Citizens Assemblies did meet and
be valid, must appear to have been made in strict
vote, if irregularly and crudely, it is not for me to resort, for
conformity with the requirements of Article XV thereof.
What is more, that decision asserted judicial competence to adopted implies a general intent to put aside the whole of
inquire into the matter of compliance or non compliance as the old one, and what would be really incongrous is the
a justiciable matter. I still believe in the correctness of idea that in such an eventuality, the new Constitution
those views and I would even add that I sincerely feel it would subject its going into effect to any provision of the
reflects the spirit of the said constitutional provision. constitution it is to supersede, to use the language precisely
Without trying to strain any point however, I, submit the of Section 6, Article XVII, the effectivity clause, of the New
following considerations in the context of the peculiar Constitution. My understanding is that generally,
circumstances of the cases now at bar, which are entirely constitutions are self-born, they very rarely, if at all, come
different from those in the backdrop of the Tolentino into being, by virtue of any provision of another
rulings I have referred to.
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197

VOL. 50, MARCH 31, 1973 197
constitution.3 This must be the reason why every

constitution has its own effectivity clause, so that if, the
1. Consider that in the present case what is involved is
Constitutional Convention had only anticipated the idea of
not just an amendment of a particular provision of an
the referendum and provided for such a method to be used
existing Constitution; here, it is, as I have discussed earlier
in the ratification of the New Constitution, I would have
above, an entirely new Constitution that is being proposed.
had serious doubts as to whether Article XV could have had
This important circumstance makes a great deal of
priority of application.
difference.
2. When an entirely new constitution is proposed to
No less than counsel Tolentino for herein respondents
supersede the existing one, we cannot but take into
Puyat and Roy, who was himself the petitioner in the case I
consideration the forces and the circumstances dictating
have just referred to is, now inviting Our attention to the
the replacement. From the very nature of things, the
exact language of Article XV and suggesting that the said
proposal to ordain a new constitution must be viewed as
Article may be strictly applied to proposed amendments
the most eloquent expression of a people’s resolute
but may hardly govern the ratification of a new
determination to bring about a massive change of the
Constitution. It is particularly stressed that the Article
existing order, a meaningful transformation of the old
specifically refers to nothing else but “amendments to this
society and a responsive reformation of the contemporary
Constitution” which if ratified “shall be valid as part of this
institutions and principles. Accordingly, should any
Constitution.” Indeed, how can a whole new constitution be
question arise as to its effectivity and there is some
by any manner of reasoning an amendment to any other
reasonable indication that the new charter has already
constitution and how can it, if ratified, form part of such
received in one way or another the sanction of the people, I
other constitution? In fact, in the Tolentino case I already
would hold that the better rule is for the courts to defer to
somehow hinted this point when I made reference in the
the people’s judgment, so long as they are convinced of the
resolution denying the motion for reconsideration to the
fact of their approval, regardless of the form by which it is
fact that Article XV must be followed “as long as any
expressed provided it be reasonably feasible and reliable.
amendment is formulated and submitted under the aegis of
Otherwise stated, in such instances, the courts should not
the present Charter.” Said resolution even added. “(T)his is
bother about inquiring into compliance with technical
not to say that the people may not, in the exercise of their
requisites, and as a matter of policy should consider the
inherent revolutionary powers, amend the Constitution or
matter non-justiciable.
promulgate an entirely new one otherwise.”
3. There is still another circumstance which I consider to
It is not strange at all to think that the amending clause
be of great relevancy. I refer to the ostensible reaction of
of a constitution should be confined in its application only
the component elements, both collective and individual, of
to proposed changes in any part of the same constitution
the Congress of the Philippines. Neither the Senate nor the
itself, for the very fact that a new constitution is being
House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they under the 1935 Constitution, two, the Executive and the
were supposed to do under the Constitution of 1935 on Legislative, have already accepted the New Constitution
January 22, 1973 for the 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
3 It must be recalled that in the Tolentino case, the Constitutional being the guardian of the Constitution and the defender of
Convention intended to submit one amendment which was to form part of its integrity and supremacy make its judicial power prevail
the Constitution still being prepared by it separately from the rest of the against the decision of those who were duly chosen by the
other parts of such constitution still unfinished, and We held that a piece- people to be their authorized spokesmen and
meal submission was improper. We had no occasion to express any view as representatives. It is not alone the physical futility of such
to how a whole new Constitution may be ratified. a gesture that concerns me. More than that,
199 200
regular session. It must be assumed that being composed of there is the stark reality that the Senators and the
experienced, knowledgeable and courageous members, it Congressmen, no less than the President, have taken the
would not have been difficult for said parliamentary bodies same oath of loyalty to the Constitution that we, the
to have conceived some ingenious way of giving evidence of Justices, have taken and they are, therefore, equally bound
their determined adherence to the Constitution under with Us to preserve and protect the Constitution. If as the
which they were elected. Frankly, much as I admire the representatives of the people, they have already opted to
efforts of the handful of senators who had their picture accept the New Constitution as the more effective
taken in front of the padlocked portals of the Senate instrument for fulfillment of the national destiny, I really
chamber, I do not feel warranted to accord such act as wonder if there is even any idealistic worth in our
enough token of resistance. As counsel Tolentino has desperately clinging by Ourselves alone to Our sworn duty
informed the court, there was noting to stop the senators vis-a-vis the 1935 Constitution. Conscious of the declared
and the congressmen to meet in any other convenient place objectives of the new dispensation and cognizant of the
and somehow officially organize themselves in a way that decisive steps being with the least loss of time, towards
can logically be considered as a session, even if nothing their accomplishment, cannot but feel apprehensive that
were done than to merely call the roll and disperse. instead of serving the best interests of our people, which to
Counsel Tolentino even pointed out that if there were not me is in reality the real meaning of our oath of office, the
enough members to form a quorum, any smaller group Court might be standing in the way of the very thing our
could have ordered the arrest of the absent members. And beloved country needs to retrieve its past glory and
with particular relevance to the present cases, it was not greatness. In other words, it is my conviction that what
constitutionally indispensable for the presiding officers to these cases demand most of all is not a decision
issue any call to the members to convene, hence the present demonstrative of our legal erudition and Solomonic wisdom
prayers for mandamus have no legal and factual bases. but an all rounded judgment resulting from the
And to top it all, quite to the contrary, the records of the consideration of all relevant circumstances, principally the
Commission on Elections show that at least 15 of 24 political, or, in brief, a decision more political than legal,
senators and over 95 out of less than 120 members of the which a court can render only by deferring to the apparent
House of Representatives, have officially and in writing judgment of the people and the announcement thereof by
exercised the option given to them to join the Interim the political departments of the government and declaring
National Assembly under the New Constitution, thereby the matter non-justiciable.
manifesting their acceptance of the new charter. 4. Viewed from the strictly legal angle and in the light of
Now, having these facts in mind, and it being obvious judicial methods of ascertainment, I cannot agree with the
that of the three great departments of the government Solicitor General that in the legal sense, there has been at
least substantial compliance with Article XV of the 1935 appropriate, the moment they are convinced that the
Constitution, but what I can see is that in a political sense, existing one is no longer responsive to their fundamental,
the answers to the referendum questions were not given by political and social needs nor conducive to the timely
the people as legal conclusions. I take it that when they attainment of their national destiny. This is not only the
answered that by their signified approval of the New teaching of the American Declaration of Independence but
Constitution, they do not consider it necessary to hold a is indeed, a truth that is self-evident. More, it should be
plebiscite, they could not have had in mind any intent to do regarded as implied in every constitution that regardless of
what was constitutionally improper. Basically accustomed the language of its amending clause, once the people have
to proceed along constitutional channels, they must have given their sanction to a new charter, the latter may be
acted in the honest conviction that what was being done deemed as constitutionally permissible even from the point
was in conformity with of view of the preceding constitution. Those who may feel
restrained to
201
202
VOL. 50, MARCH 31, 1973 201

prevailing constitutional standards. We are not to assume
that the sovereign people were indulging in a futile exercise consider this view out of respect to the import of Tolentino
of their supreme political right to choose the fundamental vs. Comelec, supra, would be well advised to bear in mind
charter by which their lives, their liberties and their that the case was decided in the context of submission, not
fortunes shall be safeguarded. In other words, we must accomplished ratification.
perforce infer that they meant their decision to count, and V
it behooves this Court to render judgment herein in that The language of the disputed amending clause of the
context. It is my considered opinion that viewed 1935 Constitution should not be deemed as the be all and
understandingly and realistically, there is more than end all the nation. More important than even the
sufficient ground to hold that, judged by such intent and, Constitution itself with all its excellent features, are the
particularly, from the political standpoint, the ratification people living under it — their happiness, their posterity
of the 1973 Constitution declared in Proclamation 1102 and their national destiny. There is nothing that cannot be
complies substantially with Article XV of the 1935 Charter, sacrificed in the pursuit of these objectives, which
specially when it is considered that the most important constitute the totality of the reasons for national existence.
element of the ratification therein contemplated is not in The sacred liberties and freedom enshrined in it and the
the word “election,” which conceivably can be in many commitment and consecration thereof to the forms of
feasible and manageable forms but in the word “approved” democracy we have hitherto observed are mere integral
which may be said to constitute the substantiality of the parts of this totality; they are less important by
whole article, so long as such approval is reasonably themselves.
ascertained. In the last analysis, therefore, it can be rightly What seems to me to be bothering many of our
said, even if only in a broad sense, that the ratification here countrymen now is that by denying the present petitions,
in question was constitutionally justified and justifiable. the Court would be deemed as sanctioning, not only the
5. Finally, if any doubt should still linger as to the deviations from traditional democratic concepts and
legitimacy of the New Constitution on legal grounds, the principles but also the qualified curtailment of individual
same should be dispelled by viewing the situation in the liberties now being practiced, and this would amount, it is
manner suggested by Counsel Tolentino and by the writer feared, to a repudiation of our oath to support and defend
of this opinion in his separate opinion, oft-referred to the Constitution of 1935. This is certainly something one
above, in the Plebiscite Cases — that is, as an extra must gravely ponder upon. When I consider, however, that
constitutional exercise by the people, under the leadership the President, the Vice President, the members of both
of President Marcos, of their inalienable right to change Houses of Congress, not to speak of all executive
their fundamental charter by any means they may deem departments and bureaus under them as well as all the
lower courts, including the Court of Appeals have already Aguinaldo, Antonio Luna, Mabini and so also with our
accepted the New Constitution as an instrument of a patriots of the recent generations, Quezon, Osmeña, Roxas,
meaningful nationwide-all-level change in our government Laurel and Recto, to mention only some of them, had their
and society purported to make more realistic and feasible, differences of views — and they did not hesitate to take
rather than idealistic and cumbersomely deliberative, the diametrically opposing sides — that even reached tragic
attainment of our national aspirations, I am led to wonder proportions, but all of them are admired and venerated.
whether or not we, as members of the Supreme Court are It is my faith that to act with absolute loyalty to our
being true to our duty to our people by refusing to follow country and people is more important than loyalty to any
suit and accept the realities of the moment, despite our particular precept or provision of the Constitution or to the
being convinced of the sincerity and laudableness of their Constitution itself. My oath to abide by the Constitution
objectives, only because we feel that by the people’s own act binds me to whatever course of action I feel sincerely is
of ratifying the demanded by the welfare and best interests of the people.
203 204
Constitution of 1935, they have so encased themselves

within its provisions and may, therefore, no longer take In this momentous juncture of our history, what is
measures to redeem themselves from the situation brought imperative is national unity. May God grant that the
about by the deficiencies of the old order, unless they act in controversies the events leading to these cases have entail
strict conformity therewith. I cannot believe that any will heal after the decision herein is promulgated, so that
people can be so stifled and enchained. In any event, I all us Filipinos may forever join hands in the pursuit of our
consider it a God-given attribute of the people to disengage national destiny.
themselves, if necessary, from any covenant that would IN VIEW OF ALL THE FOREGOING, I vote to dismiss
obstruct their taking what subsequently appears to them to these petitions for mandamus and prohibition without
be the better road to the promotion and protection of their costs.
welfare. And once they have made their decision in that
respect, whether sophisticatedly or crudely, whether in Makasiar, J., concurring:
legal form or otherwise, certainly, there can be no court or Assuming, without conceding, that Article XV of the
power on earth that can reverse them. 1935 Constitution prescribes a procedure for the
I would not be human if I should be insensitive to the ratification of constitutional amendments or of a new
passionate and eloquent appeals of Counsels Tañada and Constitution and that such procedure was no complied
Salonga that these cases be decided on the basis of with, the validity of Presidential Proclamation No. 1102 is
conscience. That is exactly what I am doing. But if counsel a political, not a justiciable, issue; for it is inseparably or
mean that only by granting their petitions can this Court inextricably link with and strikes at, because it is decisive
be worthily the bulwark of the people’s faith in the of, the validity of ratification and adoption of, as well as
government, I cannot agree, albeit my admiration and acquiescence of people in, the 1973 Constitution and the
respect are all theirs for their zeal and tenacity, their legitimacy of the government organized and operating
industry and wisdom, their patriotism and devotion to thereunder. And being political, it is beyond the ambit of
principle. Verily, they have brought out everything in the judicial inquiry, tested by the definition of a political
Filipino that these cases demand. question enunciated in Tañada, et al. vs. Cuenco, et al. (103
In times of national emergencies and crises, not arising Phil. 1051), aside from the fact the this view will not do
from foreign invasion, we need not fear playing opposite violence to rights vested under the new Constitution, to
roles, as long as we are all animated by sincere love of international commitments forged pursuant thereto and to
country and aim exclusively at the attainment of the decisions rendered by the judicial as well as quasi-judicial
national destiny. Our heroes of the past, Rizal, Bonifacio, tribunals organized and functioning or whose jurisdiction
has been altered by the 1973 Constitution and the consequent effectivity of the new Constitution. This is as it
government established thereunder, and will dissipate any should be in a democracy, for the people are the repository
confusion in the minds of the citizenry, who have been of all sovereign powers as well as the source of all
obeying the mandates of the new Constitution, as well as governmental authority (Pole vs. Gray, 104 SO 2nd 841
exercising the rights and performing the obligations [1958]). This basic democratic concept is expressly restated
defined by the new Constitution, and decrees and orders in Section 1 of Article II of the Declaration of Principles of
issued in implementation of the same and cooperating with the 1935 and 1973 Constitutions, thus: “Sovereignty
the administration in the renovation of our social, economic resides in the people and all government authority
and political system as re-structured by the 1973 emanates from them.”
Constitution and by the implementing decrees and orders The legality of the submission is no longer relevant;
(see Miller vs. Johnson, 18 SW 522, 522-526, 1892). because the ratification, adoption and/or acquiescence by
the people cures any infirmity in its submission or any
205
other irregularities therein which are deemed mandatory
before
VOL. 50, MARCH 31, 1973 205
206

In 1957, Mr. Chief Justice Roberto Concepcion, then Javellana vs. The Executive Secretary
Associate Justice, in behalf of the Court, defined a political
question as one which, under the Constitution, is “to be
submission as they are considered merely directory after
decided by the people in their sovereign capacity, or in
such ratification or adoption or acquiescence by the people.
regard to which full discretionary authority had been
As Mr. Justice Brewer, then of the Kansas State Supreme
delegated to the Legislature or Executive branch of the
Court and later Associate Justice of the Federal Supreme
government.” (Tañada, et al. vs. Cuenco, et al., supra).
Court, stated in re Prohibitory Amendment Cases (24
Article XV of the 1935 Constitution provides: “Such
Kansas 700 & 710 Reprint 499, 506): “The two important,
amendments shall be valid as part of this Constitution
vital elements of the Legislature and a majority of the
when approved by a majority of the votes cast at an
popular vote. Beyond these, other provisions are mere
election at which the amendments are submitted to the
machineries and forms. They may not be disregarded,
people for ratification.” Under Article XV of the 1935
because by them certainty as to the essentials is secured. But
Constitution, the power to propose constitutional
they are not themselves the essentials.” (Cited in Larken vs.
amendments is vested in Congress or in a constitutional
Gronna, 285 NW 59, 61-64, 1939).
convention; while the power to ratify or reject such
This was the ruling by the American Supreme Court in
proposed amendments or new Constitution is reserved by
the 1939 case of Coleman vs. Miller (307 U.S. 433, 83 L.ed.
the sovereign people. The nullification of Proclamation No.
1385), where Chief Justice Hughes, speaking for the
1102 would inevitably render inoperative the 1973
majority, stated that:
Constitution, which is in fact the express prayer of the
petitioners in G.R. No. L-36164. Regardless of the modality “x x x Thus the political departments of the government dealt
of submission or ratification or adoption — even if it with the effect of both previous rejection and attempted
deviates from or violates the procedure delineated therefore withdrawal and determined that both were ineffectual in the
by the old Constitution — once the new Constitution is presence of an actual ratification x x x. This decision by the
ratified, adopted and/or acquiesced in by the people or political departments of the Government as to the validity of the
ratified even by a body or agency not duly authorized adoption of the Fourteenth amendment has been accepted.
therefor but is subsequently adopted or recognized by the “We think that in accordance with this historic precedent the
people and by the other official organs and functionaries of question of the efficacy of ratifications by state legislatures, in the
the government established under such a new Constitution, light of previous rejection or attempted withdrawal, should be
this Court is precluded from inquiring into the validity of regarded as a political question pertaining to the political
such ratification, adoption or acquiescence and of the departments, with the ultimate authority in the Congress in the

exercise of its control over the promulgation of the adoption of the involved in the aforesaid cases refers to only the propriety
amendment.” of the submission of a proposed constitutional amendment
to the people for ratification, unlike the present petitions,
This view was likewise emphasized by Mr. Justice Black which challenge inevitably the validity of the 1973
in his concurring opinion, in which Mr. Justices Roberts, Constitution after its ratification or adoption thru
Frankfurter, and Douglas join, thus: acquiescence by the sovereign people. As heretofore stated,
it is specious and pure sophistry to advance the reasoning
“The Constitution grants Congress exclusive power to control
that the present petitions pray only for the nullification of
submission of constitutional amendments. Final determination by
the 1973 Constitution and the government operating
Congress that ratification by three-fourths of the States has taken
thereunder.
place ‘is conclusive upon the courts.’ In the exercise of that power,
It should be stressed that even in the Gonzales case,
Congress, of course, is governed by the Constitution. However,
supra, We held that:
207
208
VOL. 50, MARCH 31, 1973 207

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 “Indeed, the power to amend the Constitution or to propose
‘political.’ And decision of a ‘political question’ by the ‘political amendments thereto is not included in the general grant of
department’ to which the Constitution has committed it legislative powers to Congress. It is part of the inherent powers of
‘conclusively binds the judges, as well as all other officers, citizens the people — as the repository of sovereignty in a republican
and subjects of...government.’ Proclamation under authority of state, such as ours — to make, and hence, to amend their own
Congress that an amendment has been ratified will carry with it a Fundamental Law. Congress may propose amendments to the
solemn assurance by the Congress that ratification has taken same explicitly grants such power. Hence, when exercising the
place as the Constitution commands. Upon this assurance a same, it is said that Senators and Members of the House of
proclaimed amendment must be accepted as a part of the Representatives act, not as members, but as component elements
Constitution, leaving to the judiciary its traditional authority of of a constituent assembly. When acting as such, the members of
interpretation. To the extent that the Court’s opinion in the Congress derive their authority from the Constitution, unlike the
present case even impliedly assumes a power to make judicial people, when performing the same function, for their authority
interpretation of the exclusive constitutional authority of does not emanate from the Constitution — they are the very
Congress over submission and ratification of amendments, we are source of all powers of government, including the
unable to agree...” (American Constitutional Issues, by Pritchett, Constitution itself.” (21 SCRA 787)
1962 Ed., p. 44).
We did not categorically and entirely overturn the
The doctrine in the aforesaid case of Coleman vs. Miller doctrine in Mabanag vs. Lopez Vito (78 Phil. 1) that both
was adopted by Our Supreme Court in toto in Mabanag vs. the proposal to amend and the ratification of such a
Lopez Vito (78 Phil. 1). constitutional amendment are political in nature forming
The ruling in the cases of Gonzales vs. Comelec, et al. (L- as they do the essential parts of one political scheme — the
28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino vs. amending process. WE merely stated therein that the force
Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on of the ruling in the said case of Mabanag vs. Lopez Vito has
which petitioners place great reliance — that the courts been weakened by subsequent cases. Thus, We pronounced
may review the propriety of a submission of a proposed therein:
constitutional amendment before the ratification or
It is true that in Mabanag vs. Lopez Vito, this Court
adoption of such proposed amendment by the sovereign
characterizing the issue submitted thereto as a political one,
people, hardly applies to the cases at bar; because the issue
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 Courts do not deal with propriety or wisdom or absence of
Constitution — which was being submitted to the people for either of an official act or of a law. Judicial power concerns
ratification — satisfied the three fourths vote requirement of the only with the legality or illegality, constitutionality or
fundamental law. The force of this precedent has been weakened, unconstitutionality of an act: it inquires into the existence
however, by Suanes vs. Chief Accountant of the Senate, Avelino of power or lack of it. Judicial wisdom is not to be pitted
vs. Cuenco, Tañada vs. Cuenco and Macias vs. Commission on against the wisdom of the political department of the
Elections. In the first, we held the officers and employees of the government.
Senate Electoral Tribunal are supervision and control, not of that The classic example of an illegal submission that did not
of the Senate President, claimed by the latter; in the second, this impair the validity of the ratification or adoption of a new
Court proceeded to determine the number of Senators necessary Constitution is the case of the Federal Constitution of the
for a quorum in the Senate; in the third we nullified the election, United States. It should be recalled that the thirteen (13)
by Senators belonging to the party having the largest number of original states of the American Union — which succeeded
votes in said chamber purporting to act on behalf of the party in liberating themselves from England after the revolution
having the second largest number of votes therein, of two (2) which
Senators belonging to the first party, as members, for the second
210
party, of the Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of
209
VOL. 50, MARCH 31, 1973 209
began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General
Congress purporting to apportion the representative districts for
Cornwallis at Yorktown, Virginia, on October 19,
the House of Representatives, upon the ground that the
1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) —
adopted their Articles of Confederation and Perpetual
apportionment had not been made as may be possible according to
Union, that was written from 1776 to 1777 and ratified on
the number of inhabitants of each province. Thus we rejected the
theory advanced in these four (4) cases, that the issues therein
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p.
raised were political questions the determination of which is
525). About six thereafter, the Congress of the
beyond judicial review. (21 SCRA pp. 785-786);
Confederation passed a resolution on February 21, 1787
calling for a Federal Constitutional Convention “for the sole
for which reason We concluded and express purpose of revising the articles of
confederation x x x.” (Appendix I, Federalist, Modern
“In short, the issue whether or not a resolution of Congress before Library ed., p. 577, emphasis supplied).
acting as a constituent assembly — violates the Constitution is The Convention convened at Philadelphia on May 14,
essentially justiciable, not political, and, hence, subject to judicial 1787. Article XIII of the Articles of Confederation and
review, and to the extent that this view may be inconsistent with Perpetual Union stated specifically:
the stand taken in Mabanag vs. Lopez Vito, the latter should be
deemed modified accordingly.” (p. 787, emphasis supplied.) “The articles of this confederation shall be inviolably observed
in every state, and the union shall be perpetual; nor shall any
In the Tolentino case, supra, We reiterated the foregoing alterations at any time hereafter be made in any of them; unless
statements (41 SCRA 703-714). such alteration be agreed to in a congress of the united states, and
The inevitable consequence therefore is that the validity be afterwards confirmed by the legislatures of every state.” (See the
of the ratification or adoption of or acquiescence by the Federalist, Appendix II, Modern Library Ed., 1937, p. 584;
people in the 1973 Constitution, remains a political issue emphasis supplied.)
removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. But the foregoing requirements prescribed by the
Both primarily stressed on the impropriety of the Articles of Confederation and Perpetual Union for the
submission of a proposed constitutional amendment. alteration for the ratification of the Federal Constitution as

drafted by the Philadelphia Convention were not followed. May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27 — by
Fearful the said Federal Constitution would not be ratified the state conventions and not by all thirteen (13) state
by the legislatures as prescribed, the Philadelphia legislatures as required by Article XIII of the Articles of
Convention adopted a resolution requesting the Congress of Confederation and Perpetual Union aforequoted — and in
the Confederation to pass a resolution providing that the spite of the fact that the Federal Constitution as originally
Constitution should be submitted to elected state adopted suffers from two basic infirmities, namely, the
conventions and if ratified by the conventions in nine (9) absence of a bill of Rights and of a provision affirming the
states, not necessarily in all thirteen (13) states, the said power of judicial review.
Constitution shall take effect. The liberties of the American people were guaranteed by
Thus, history Professor Edward Earle Mead of Princeton subsequent amendments to the Federal Constitution. The
University recorded that: doctrine of judicial review has become part of American
constitutional law only by virtue of a judicial
“It would have been a counsel of perfection to consign the new pronouncement
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212
VOL. 50, MARCH 31, 1973 211

constitution to the tender mercies of the legislatures of each and
all of the 13 states. Experience clearly indicated that ratification by Chief Justice Marshall in the case of Marbury vs.
then would have had the same chance as the scriptural camel Madison (1803, 1 Cranch 137).
passing through the eye of a needle. It was therefore determined to Until this date, no challenge has been launched against
recommend to Congress that the new Constitution be submitted to the validity of the ratification of the American
conventions in the several states especially elected to pass upon it Constitution, nor against the legitimacy of the government
and that, furthermore, the new government should go into effect if organized and functioning thereunder.
and when it should be ratified by nine of the thirteen states x x x.” In the 1946 case of Wheeler vs. Board of Trustees (37 SE
(The Federalist, Modern Library Ed., 1937, Introduction by 2nd 322, 326-330), which enunciated the principle that the
Edward Earle Mead, pp. viii-ix; emphasis supplied) validity of a new or revised Constitution does not depend
on the method of its submission or ratification by the
Historian Samuel Eliot Morison similarly recounted: people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or
“The Convention, anticipating that the influence of many state
adoption or acquiescence is all that is essential, the Court
politicians would be Antifederalist, provided for ratification of the
cited precisely the case of the irregular revision and
Constitution by popularly elected conventions in each state.
ratification by state conventions of the Federal
Suspecting that Rhode Island, at least, would prove recalcitrant,
Constitution, thus:
it declared that the Constitution would go into effect as soon as
nine states ratified. The convention method had the further “No case identical in its facts with the case now under
advantage that judges, ministers, and others ineligible to state consideration has been called to our attention, and we have found
legislatures, could be elected to a convention. The nine-state none. We think that the principle which we apply in the instant
provision was, of course, mildly revolutionary. But the Congress of case was very clearly applied in the creation of the constitution of
the Confederation, still sitting in New York to carry on federal the United States. The convention created by a resolution of
government until relieved, formally submitted the new Congress had authority to do one thing, and one only, to wit,
constitution to the states and politely faded out before the first amend the articles of confederation. This they did not do, but
presidential inauguration.” (The Oxford History of the Am. submitted to the sovereign power, the people, a new constitution. In
People, by Samuel Eliot Morison, 1965 ed., p. 312). this manner was the constitution of the United States submitted to
the people and it became operative as the organic law of this
And so the American Constitution was ratified by nine nation when it had been properly adopted by the people.
(9) states on June 21, 1788 and by the last four states on

“Pomeroy’s Constitutional Law, p. 55, discussing the In the 1903 case of Weston vs. Ryan, the Court held:
convention that formulated the constitution of the United States,
has this to say: ‘The convention proceeded to do, and did “It remains to be said that if we felt at liberty to pass upon this
accomplish, what they were not authorized to do by a resolution of question, and were compelled to hold that the act of February 23,
Congress that called them together. That resolution plainly 1887, is unconstitutional and void, it would not, in our opinion, by
contemplated amendments to the articles of confederation, to be any means follow that the amendment is not a part of our state
submitted to and passed by the Congress, and afterwards ratified Constitution. In the recent case of Taylor vs. Commonwealth (Va.)
by all the State legislatures, in the manner pointed out by the 44 S.E. 754, the Supreme Court of Virginia hold that their state
existing organic law. But the convention soon became convinced Constitution of 1902, having been acknowledged and accepted by
that any amendments were powerless to effect a cure; that the the officers administering the state government, and by the people,
disease was too deeply seated to be reached such tentative means. and being in force without opposition, must be regarded as an
They saw that the system they were called to improve must be existing Constitution irrespective of the question as to whether or
totally abandoned, and that the national idea must be re- not the
established at the center of their political society. It was 214
213
convention which promulgated it had authority so to do without
objected by some members, that they had no power, no authority, submitting it to a vote of the people. In Brittle v. People, 2 Neb.
to construct a new government. They had no authority, if their 198, is a similar holding as to certain provisions of the Nebraska
decisions were to be final; and no authority whatsoever, under the Constitution of 1886, which were added by the Legislature at the
articles of confederation, to adopt the course they did. But they requirement of Congress, though never submitted to the people
knew that their labors were only to be suggestions; and that they for their approval.” (97 NW 349-350; emphasis supplied).
as well as any private individuals, and any private individuals as
Against the decision in the Wheeler case, supra,
well as they, had a right to propose a plan of government to the
confirming the validity of the ratification and adoption of
people for their adoption. They were, in fact, a mere assemblage of
the American Constitution, in spite of the fact that such
private citizens, and their work had no more binding sanction
ratification was in clear violation of the prescription on
than a constitution drafted by Mr. Hamilton in his office would
alteration and ratification of the Articles of Confederation
have had. The people, by their expressed will, transformed this
and Perpetual Union, petitioners in G.R. No. L-36165
suggestion, this proposal, into an organic law, and the people
dismissed this most significant historical fact by calling the
might have done the same with a constitution submitted to them
Federal Constitution of the United States as a
by a single citizen.’
revolutionary one, invoking the opinion expressed in Vol.
xx xx xx xx xx xx xx
16, Corpus Juris Secundum, p. 27, that it was a
“xx When the people adopt a completely revised or new
revolutionary constitution because it did not obey the
constitution, the framing or submission of the instrument is not
requirement that the Articles of Confederation and
what gives it binding force and effect. The fiat of the people and
Perpetual Union can be amended only with the consent of
only the fiat of the people, can breathe life into a constitution.
all thirteen (13) state legislatures. This opinion does not
xx xx xx xx xx xx
cite any decided case, but merely refers to the footnotes on
“x x x We do not hesitate to say that a court is never justified in
the brief historic account of the United States Constitution
placing by implication a limitation upon the sovereign. This would
on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main
be an authorized exercise of sovereign power by the court. In State
Notes, refer US to pp. 270-316 of the Oxford History of the
v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: ‘The
American People, 1965 Ed. by Samuel Eliot Morison, who
people of a State may form an original constitution, or abrogate
discusses the Articles of Confederation and Perpetual
an old one and form a new one, at any time, without any political
Union in Chapter XVIII captioned “Revolutionary
restriction except the constitution of the United States; x x x.’ (37
Constitution Making, 1775-1781” (pp. 270-281). In Chapter
SE 327-328, 329, emphasis supplied.)
XX on “The Creative Period in Politics, 1785-1788,”
Professor Morison delineates the genesis of the Federal That the issue of the legitimacy of a government is
Constitution, but does not refer to it even implicitly as likewise political and not justiciable, had long been decided
revolutionary constitution (pp. 297-316). However, the as early as the 1849 case of Luther vs. Borden (7 How. 1, 12
Federal Constitution may be considered revolutionary from L.ed., 581), affirmed in the 1900 case of Taylor vs.
the view point of McIver if the term revolution is Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated
understood in “its wider sense to embrace decisive changes in 1912 in the case of Pacific States Telephone and
in the character of government, even though they do not Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56
involve the violent overthrow of an established order, L.ed. 377-386). Because it reaffirmed the pronouncements
x x x.” (R.M. MacIver, The Web of Government, 1965 ed., p. in both Borden and Beckham cases, it is sufficient for us to
203). quote the decision in Pacific States Telephone and
It is rather ridiculous to refer to the American Telegraph Co., supra, penned by Mr. Chief Justice White,
Constitution as a revolutionary constitution. The Articles of who re-stated:
Confederation and Perpetual Union that was in force from
July 12, 1776 to 1788, forged as it was during the war of “In view of the importance of the subject, the apparent
independence was a misapprehension on one side and seeming misconception on the
other, suggested by the argument as to the full significance of the
215
216
VOL. 50, MARCH 31, 1973 215

revolutionary constitution of the thirteen (13) states. In the previous doctrine, we do not content ourselves with a mere
existing Federal Constitution of the United States which citation of the cases, but state more at length than we otherwise
was adopted seven (7) or nine (9) years after the thirteen would the issues and the doctrine expounded in the leading and
(13) states won their independence and long after popular absolutely controlling case — Luther v. Borden, 7 How. 1, 12 L.ed.
support for the government of the Confederation had 581.
stabilized was not a product of a revolution. The Federal xx xx xx xx
Constitution was a “creation of the brain and purpose of “x x x On this subject it was said (p. 38):
man” in an era of peace. It can only be considered “ ‘For if this court is authorized to enter upon this inquiry,
revolutionary in the sense that it is a radical departure proposed by the plaintiff, and it should be decided that the
from its predecessor, the Articles of Confederation and character government had no legal existence during the period of
Perpetual Union. time above mentioned, — if it had been annulled by the adoption
It is equally absurd to affirm that the present Federal of the opposing government, — then the laws passed by its
Constitution of the United States is not the successor to the legislature during that time were nullities; its taxes wrongfully
Articles of Confederation and Perpetual Union. The fallacy collected, its salaries and compensations to its officers illegally
of the statement is so obvious that no further refutation is paid; its public accounts improperly settled and the judgments and
needed. sentences of its courts in civil and criminal cases null and void,
As heretofore stated, the issue as to the validity of and the officers who carried their decisions into operation
Proclamation No. 1102 strikes at the validity and answerable as trespassers, if not in some cases as criminals.’
enforceability of the 1973 Constitution and of the xx xx xx xx
government established and operating thereunder. “ ‘The fourth section of the fourth article of the Constitution of
Petitioners pray for a declaration that the 1973 the United States shall guarantee to every state in the Union a
Constitution is inoperative (L-36164). If Proclamation No. republican form of government, and shall protect each of them
1102 is nullified, then there is no valid ratification of the against invasion; and on the application of the Legislature or of
1973 Constitution and the inevitable conclusion is that the the Executive (when the legislature cannot be convened) against
government organized and functioning thereunder is not a domestic violence.
legitimate government. “ ‘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 “As the issues presented, in their very essence, are, and have
government, Congress must necessarily decide what government is long since by this Court been, definitely determined to be political
established in the state before it can determine whether it is and governmental, and embraced within the scope of the scope of
republican or not. And when the senators and representatives of a the powers conferred upon Congress, and not, therefore within the
state are admitted into the Councils of the Union, the authority of reach of judicial power, it follows that the case presented is not
the government under which they were appointed, as well as its within our jurisdiction, and the writ of error must therefore be,
republican character, is recognized by the proper constitutional and it is, dismissed for want of jurisdiction.” (223 U.S. pp. 142-
authority. And its decision is binding on every other department of 151; emphasis supplied).
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 Even a constitutional amendment that is only
bring the matter to this issue; and as no senators or promulgated by the Constitutional Convention without
representatives were elected under the authority of the authority therefor
government of which Mr. Dorr was the head, Congress was not 218
called upon to decide the controversy. Yet the right to decide is
217
VOL. 50, MARCH 31, 1973 217
Javellana vs. The Executive Secretary and without submitting the same to the people for
ratification, becomes valid, when recognized, accepted and
placed there and not in the courts.” acted upon the by Chief of State and other government
xx xx xx functionaries, as well as by the people. In the 1903 case of
“x x x We do not stop to cite other cases which indirectly or Taylor vs. Commonwealth (44 SE 754-755), the Court
incidentally refer to the subject, but conclude by directing ruled:
attention to the statement by the court, speaking through Mr.
Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 “The sole ground urged in support of the contention that
L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a Constitution proclaimed in 1902 is invalid is that it was ordained
contention made concerning the 14th Amendment, and coming to and promulgated by the convention without being submitted for
consider a proposition which was necessary to be decided ratification or rejection by the people of the commonwealth.
concerning the nature and effect of the guaranty of S 4 of article “The Constitution of 1902 was ordained and proclaimed by
4, it was said (p. 578): convention duly called by direct vote of the people of the state to
“ ‘But it is said that the 14th Amendment must be read with S revise and amend the Constitution of 1869. The result of the work
4 of article 4, of the Constitution, providing that the United States that the convention has been recognized, accepted, and acted
shall guarantee to every state in this Union a republican form of upon as the only valid Constitution of the state by the Governor in
government, and shall protect each of them against invasion; and swearing fidelity to it and proclaiming it, as directed thereby; by
on application of the legislature, or the Executive (when the the Legislature in its formal official act adopting a joint
legislature cannot be convened), against domestic violence.” resolution, July 15, 1902, recognizing the Constitution ordained
xx xx xx xx by the convention which assembled in the city of Richmond on the
“ ‘It was long ago settled that the enforcement of this guaranty 12th day of June 1901, as the Constitution of Virginia; by the
belonged to the political department. Luther v. Borden, 7 How. 1, individual oaths of members to support it, and by its having been
12 L.ed. 581. In that case it was held that the question, which of engaged for nearly a year in legislating under it and putting its
the two opposing governments of Rhode Island, namely, the provisions into operation but the judiciary in taking the oath
charter government or the government established by a voluntary prescribed thereby to support and by enforcing its provisions; and
convention, was the legitimate one, was a question for the by the people in their primary capacity by peacefully accepting it
determination of the political department; and when that and acquiescing in it, registering as voters under it to the extent
department had decided, the courts were bound to take notice of of thousands through the state, and by voting, under its
the decision and follow it.’ provisions, at a general election for their representatives in the
xx xx xx xx Congress of the United States.” (p. 755).

The Court in the Taylor case above-mentioned further that “irregularity in the procedure for the submission of the
said: proposed constitutional amendment will not defeat the
ratification by the people.”
“While constitutional procedure for adoption or proposal to Again, in the 1958 case of Swaim vs. Tuscaloosa
amend the constitution must be duly followed, without omitting County (103 SO 2nd 769), the Alabama Supreme Court
any requisite steps, courts should uphold amendment, unless pronounced that “the irregularity in failing to publish the
satisfied that the Constitution was violated in submitting the proposed constitutional amendment once in each of the 4
proposal. xx xx Substance more than form must be regarded in calendar weeks next preceding the calendar week in which
considering whether the complete constitutional system for the election was held or once in each of the 7-day periods
submitting the proposal to amend the constitution was observed.” immediately preceding the day of the election as required
by the Constitution, did not invalidate the amendment
In the 1925 case of Taylor vs. King (130 A 407, 408 410),
which was ratified by the people.”
the Court stated:
The same principle was reiterated in 1961 by the
219 Mississippi
220
VOL. 50, MARCH 31, 1973 219

“There may be technical error in the manner in which a Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45
proposed amendment is adopted, or in its advertisement, yet, if 462), where they admitted irregularities or illegalities
followed, unobjected to, by approval of the electors, it becomes committed in the procedure for submission of the proposed
part of the Constitution. Legal complaints to the submission may constitutional amendment to the people for ratification
be made prior to taking the vote, but, if once sanctioned, the consisted of: “(a) the alleged failure of the county election
amendment is embodied therein, and cannot be attacked, either commissioners of the several counties to provide a
directly or collaterally, because of any mistake antecedent sufficient number of ballot boxes ‘secured by good and
thereto. Even though it be submitted at an improper time, it is substantial locks,’ as provided by Section 3249, Code of
effective for all purposes when accepted by the majority. 1942, Rec., to be used in the holding of the special election
Armstrong v. King, 281 Pa. 207, 126 A. 263.” (130 A 409). on the constitutional amendment, and (b) the alleged
failure of the State Election Commissioners to comply with
Even if the act of the Constitutional Convention is the requirements of Code Sections 3204 and 3205 in the
beyond its authority, such act becomes valid upon appointment of election commissioners in each of the 82
ratification or adoption or acquiescence by the people. counties. The irregularities complained of, even if proved,
Thus, in the 1905 case of Ex parte Birmingham and A.R. were not such irregularities would have invalidated the
Company (42 SO pp. 118 & 123), the Alabama Supreme election.” (Emphasis supplied; see also Sylvester vs.
Court upheld this principle and stated that: “The Tindall, 8 SO 2nd 892; 154 Fla. 663).
authorities are almost uniform that this ratification of an Even prior to the election in November, 1970 of
unauthorized act by the people (and the people are the delegates of the Constitutional Convention and during the
principal in this instance) renders the act valid and deliberations of the Constitutional Convention from June 1,
binding.” 1971 until martial law was proclaimed on Sept. 21, 1972,
It has likewise been held that it is not necessary that the salient reforms contained in the 1973 Constitution
voters ratifying the new Constitution are registered in the which have long been desired by the people, had been
book of voters; it is enough that they are electors voting on thoroughly discussed in the various committees of the
the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 Constitutional Convention, on the floor of the Convention
LRA 251, emphasis supplied). itself, in civic forums and in all the media of information.
In the 1956 case of Thomson vs. Peoples State Bank (75 Many of the decrees promulgated by the Chief Executive
NW 2nd 370, 375), the Supreme Court of Wisconsin ruled 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 accepted by the Philippines after the ratification of the
the 1973 Constitution. 1973 Constitution on January 17, 1973. Copies of the 1973
Petitioners cannot safely state that during martial law Constitution had been furnished the United Nations
the majority of the people cannot freely vote for these Organization and practically all the other countries with
reforms and are not complying with the implementing which the Philippines has diplomatic relations. No adverse
decrees promulgated by the President. reaction from the United Nations or from the foreign states
Free election is not inevitably incompatible with martial has been manifested. On the contrary, our permanent
law. We had free elections in 1951 and 1971 when the delegate to the United Nations Organization and our
opposition won six out of eight senatorial seats despite the diplomatic representatives abroad appointed before martial
suspension of the privileges of the writ of habeas law continue to remain in their posts and are performing
corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 their functions as such under the 1973 Constitution.
SCRA 448), which suspension implies constraint on Even the Commission on Elections is now implementing
individual freedom as the proclamation the provisions of the 1973 Constitution by requiring all
election
221
222
VOL. 50, MARCH 31, 1973 221

of martial law. In both situations, there is no total blackout
of human rights and civil liberties. registrars to register 18-year olds and above whether
All the local governments, dominated either by literates or not, who are qualified electors under the 1973
Nacionalistas or Liberals, as well as officials of the Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes
Legislative and Executive branches of the government of respondents Puyat and Roy in L-36165).
elected and/or appointed under the 1935 Constitution have In brief, it cannot be said that the people are ignoring
either recognized or are now functioning under the 1973 the 1973 Constitution and the government which is
Constitution, aside from the fact of its ratification by the enforcing the same for over 10 weeks now With the
sovereign people through the Citizens Assemblies. Ninety- petitioners herein, secessionists, rebels and subversives as
five (95) of a total of one hundred ten (110) members of the the only possible exceptions, the rest of the citizenry are
House of Representatives including the Speaker and the complying with decrees, orders and circulars issued by the
Speaker Pro Tempore as well as about eleven (11) incumbent President implementing the 1973 Constitution.
Congressmen who belong to the Liberal Party and fifteen Of happy relevance on this point is the holding in Miller
(15) of a total of twenty-four (24) senators including Liberal vs. Johnson, 18 SW 522:
senators Edgar U. Ilarde and John Osmeña opted to serve
in the Interim Assembly, according to the certification of “If a set of men, not selected by the people according to the
the Commission on Elections dated February 19, 1973 forms of law, were to formulate an instrument and declare it the
(Annex Rejoinder-3 to Consolidated Rejoinder of petitioners constitution, it would undoubtedly be the duty of the courts
in L-36165). Only the five (5) petitioners in L-36165 close declare its work a nullity. This would be revolution, and this the
their eyes to a fait accompli. All the other functionaries courts of the existing government must resist until they are
recognize the new government and are performing their overturned by power, and a new government established. The
duties and exercising their powers under the 1973 convention, however, was the offspring of law. The instrument
Constitution, including the lower courts. The civil courts, which we are asked to declare invalid as a constitution has been
military tribunals and quasi-judicial bodies created by made and promulgated according to the forms of law. It is a
presidential decrees have decided some criminal, civil and matter of current history that both the executive and legislative
administrative cases pursuant to such decrees. The foreign branches of the government have recognized its validity as a
ambassadors who were accredited to the Republic of the constitution, and are now daily doing so. Is the question, therefore,
Philippines before martial law continue to serve as such in one of a judicial character? It is our undoubted duty, if a statute
our country; while two new ambassadors have been be unconstitutional to so declare it; also, if a provision of the state

constitution be in conflict with the federal constitution, to hold the “Let us illustrate the difficulty of a court deciding the question:
former invalid. But this is a very different case. It may be said, Suppose this court were to hold that the convention, when it
however, that, for every violation of or non-compliance with the reassembled, had no power to make any material amendment,
law, there should be a remedy in the courts. This is not, however, and that such as were made are void by reason of the people
always the case. For instance, the power of a court as to the acts of having theretofore approved the instrument. Then, next, this
the other departments of the government is not an absolute one, court must determine what amendments were material; and we
but merely to determine whether they have kept within find the court, in effect, making a constitution. This would be
constitutional limits, it is a duty rather than a power, The arrogating sovereignty to itself. Perhaps the members of the court
judiciary cannot compel a co-equal department to perform a duty. might differ as to what amendments are material, and the result
It is responsible to the people; but if it does act, then, when the would be confusion and anarchy. One judge might say that all the
question is properly presented, it is the duty of the court to say amendments, material and immaterial, were void; another, that
whether it has conformed to the organic law. While the judiciary the convention had then the implied power to correct palpable
should protect the rights of the people with great care and jealousy, errors, and then the court might differ as to what amendments
because this is its duty, and also because, in times 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
223
changes were material, then the instrument, as passed upon by
the people or as fixed by the court would be lacking a
VOL. 50, MARCH 31, 1973 223 promulgation by the
224
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 224 SUPREME COURT REPORTS ANNOTATED
its power, as being perhaps equally dangerous; and especially Javellana vs. The Executive Secretary
where such momentous results might follow as would be likely in
this instance, if the power of the judiciary permitted, and its duty convention; and, if this be essential, then the question would
required, the overthrow of the work of the convention. arise, what constitution are we now living under, and what is the
“After the American Revolution the state of Rhode Island organic law of the state? A suggestion of these matters shows
retained its colonial character as its constitution, and no law what endless confusion and harm to the state might and likely
existed providing for the making of a new one. In 1841 public would arise. If, through error of opinion, the convention exceeded
meetings were held, resulting in the election of a convention to its power, and the people are dissatisfied, they have ample remedy,
form a new one, — to be submitted to a popular vote. The without the judiciary being asked to overstep the proper limits of
convention framed one, submitted it to a vote, and declared it its power. The instrument provides for amendment and change. If
adopted. Elections were held for state officers, who proceeded to a wrong has been done, it can, in the proper way in which it
organize a new government. The charter government did not should be remedied, is by the people acting as a body politic. It is
acquiesce in these proceedings, and finally declared the state not a question of whether merely an amendment to a constitution,
under martial law. It called another convention, which in 1843 made without calling a convention, has been adopted, as required
formed a new constitution. Whether the charter government, or the by that constitution. If it provides how it is to be done, then,
one established by the voluntary convention, was the legitimate unless the manner be followed, the judiciary, as the interpreter of
one, was uniformly held by the courts of the state not to be a that constitution, will declare the amendment invalid. Koehler v.
judicial, but a political question; and the political department Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State
having recognized the one, it was held to be the duty of the v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case where a new
judiciary to follow its decision. The supreme court of the United constitution has been formed and promulgated according to the
States, in Luther v. Borden, 7 How. 1, while not expressly deciding forms of law. Great interests have already arisen under it;
the principle, as it held the federal court, yet in the argument important rights exist by virtue of it; persons have been convicted
approves it, and in substance says that where the political of the highest crime known to the law, according to its provisions;
department has decided such a matter the judiciary should abide the political power of the government has in many ways recognized
by it. 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 The opinion of Judge Thomas McIntire Cooley that the
commonwealth. sovereign people cannot violate the procedure for
“We need not consider the validity of the amendments made ratification which they themselves define in their
after the convention reassembled. If the making of them was in Constitution, cannot apply to a unitary state like the
excess of its powers, yet, as the entire instrument has been Republic of the Philippines. His opinion expressed in 1868
recognized as valid in the manner suggested, it would be equally may apply to a Federal State like the United States, in
an abuse of power by the judiciary and violative of the rights of order to secure and preserve the existence of the Federal
the people, — who can and properly should remedy the matter, if Republic of the United States against any radical
not to their liking, — if it were to declare the instrument of a innovation initiated by the citizens of the fifty (50) different
portion invalid, and bring confusion and anarchy upon the state. states of the American Union, which states may be jealous
(italics supplied). of the powers of the Federal government presently granted
by the American Constitution. This dangerous possibility
If this Court inquires into the validity of Proclamation does not obtain in the case of our Republic.
No. 1102 and consequently of the adoption of the 1973 Then again, Judge Cooley advanced the aforesaid
Constitution it would be exercising a veto power on the act opinion in 1868 when he wrote his opus “Constitutional
of the sovereign people, of whom this Court is merely an Limitations.”*
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
* In 1880, he also wrote his “Constitutional Law.” Judge Cooley, who
manifested or expressed. The sovereign people have spoken
was born in Attica, New York in 1824, died in 1898. Judge Cooley was also
and we must abide by their decision, regardless of our
professor and later dean of the Law Department of the University of
notion as to what is the proper
Michigan and Justice of the State Supreme Court of Michigan from 1864
225 to 1885, when he failed to win re-election to the court.
226
VOL. 50, MARCH 31, 1973 225
method of giving assent to the new Charter. In this respect,
WE cannot presume to know better than the incumbent
(Vol. 6, Encyclopedia Brit., 1969 ed., pp. 445 446). It is
Chief Executive, who, unlike the members of this Court,
possible that, were he live today, in a milieu vastly
only last January 8, 1973, We affirmed in Osmeña vs.
different from 1868 to 1898, he might have altered his
Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-
views on the matter.
elected by the vote of over 5 million electors in 1969 for
Even if conclusiveness is to be denied to the truth of the
another term of four years until noon of December 30, 1973
declaration by the President in Proclamation No. 1102 that
under the 1935 Constitution. This Court, not having a
the people through their Citizens’ Assemblies had
similar mandate by direct fiat from the sovereign people, to
overwhelmingly approved the new Constitution due regard
execute the law and administer the affairs of government,
to a separate, coordinate and co-equal branch of the
must restrain its enthusiasm to sally forth into the domain
government demands adherence to the presumption of
of political action expressly and exclusively reserved by the
correctness of the President’s declaration. Such
sovereign people themselves.
presumption is accorded under the law and jurisprudence
The people in Article XV of the 1935 Constitution did
to officials in the lower levels of the Executive branch,
not intend to tie their hands to a specific procedure for
there is no over-riding reason to deny the same to the Chief
popular ratification of their organic law. That would be
of State as head of the Executive Branch. WE cannot
incompatible with their sovereign character of which We
reverse the rule on presumptions, without being
are reminded by Section 1, of Article II of both the 1935
presumptuous, in the face of the certifications by the Office
and the 1973 Constitutions.
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 personality or capacity to act is limited by age, civil
Solicitor General on behalf of the respondents public interdiction or ignorance deserve more solicitude from the
officers dated March 7, 1973). There is nothing in the State than the rest of the citizenry. In the ultimate
records that contradicts, much less overthrow the results of analysis, the inclusion of those from 15 years up to below
the referendum as certified. Much less are We justified in 21 years old, the ex-convicts and the ignorant, is more
reversing the burden of proof — by shifting it from the democratic as it broadens the base of democracy and
petitioners to the respondents. Under the rules on therefore more faithful to the express affirmation in
pleadings, the petitioners have the duty to demonstrate by Section 1 of Article II of the Declaration of Principles that
clear and convincing evidence their claim that the people “sovereignty resides in the people and all government
did not ratify through the Citizens’ Assemblies nor adopt authority emanates from them.”
by acquiescence the 1973 Constitution. And have failed to Moreover, ex-convicts granted absolute pardon are
do so. qualified to vote. Not all ex-convicts are banned from
No member of this Tribunal is justified in resolving the voting. Only those who had been sentenced to at least one
issues posed by the cases at bar on the basis of reports year imprisonment are disenfranchised but they recover
relayed to him from private sources which could be biased their right of suffrage upon expiration of ten years after
and hearsay, aside from the fact that such reports are not service of sentence (Sec. 102, 1971 Rev. Elec. Code).
contained in the record. Proclamation No. 1102 is not just Furthermore, ex-convicts and imbeciles constitute a very
an ordinary act of the Chief Executive. It is a well-nigh negligible number in any locality or barrio, including the
solemn declaration which announces the highest act of the localities of petitioners.
sovereign people — their imprimatur to the basic Charter Included likewise in the delegated authority of the
that shall govern their lives hereafter — may be for President, is the prerogative to proclaim the results of the
decades, if not for generations. plebiscite or the voting the Citizens’ Assemblies.
Petitioners decry that even 15-year olds, ex convicts and Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973
227
228
VOL. 50, MARCH 31, 1973 227

illiterates were allowed to vote in the Citizens’ Assemblies,
despite their admission that the term “Filipino people” in Constitution was ratified by the overwhelming vote of close
the preamble as well as “people” in Sections 1 and 5 of to 15 million citizens because there was no official
Article II of the 1935 Constitution and in Section 1(3) of certification to the results of the same from the
Article III of the Bill of Rights includes all Filipino citizens Department of Local Governments. But there was such
of all ages, of both sexes, whether literate or illiterate, certification as per Annexes 1 to 1-A to the Notes submitted
whether peaceful citizens, rebels, secessionists, convicts or by the Solicitor General counsel for respondents public
ex-convicts. Without admitting that ex-convicts voted in the officers. This should suffice to dispose of this point. Even in
referendum, about which no proof was even offered, these the absence of such certification, in much the same way
sectors of our citizenry, whom petitioners seem to regard that in passing law, Congress or the legislative body is
with contempt or decision and whom petitioners would presumed to be in possession of the facts upon which such
deny their sovereign right to pass upon the basic Charter laws are predicated (Justice Fernando, The Power of
that shall govern their lives and the lives of their Judicial Review, 1967 Ed., pp. 112-113, citing Lorenzo vs.
progenies, are entitled as much as the educated, the law Dir., etc., [1927] 50 Phil. 595 and O’Gonmore, et al. vs.
abiding, and those who are 21 years of age or above to Hartford, etc., [1931] 282 U.S. 251), it should likewise be
express their conformity or non conformity to the proposed presumed that the President was in possession of the fact
Constitution, because their stake under the new Charter is upon which Proclamation No. 1102 was based. This
not any less than the stake of the more fortunate among us. presumption is further strengthened by the fact that the
As a matter of fact, these citizens, whose juridical Department of Local Governments, the Department
National Defense and the Philippine Constabulary as well security and stability of the country, for the progress and
the Bureau of Posts are all under the President, which happiness of the people. All the petitioners herein cannot
offices as his alter ego, are presumptively acting for and in stand on the proposition that the rights under the 1935
behalf of the President and their acts are valid until Constitution are absolute and invulnerable to limitations
disapproved or reprobated by the President (Planas vs. Gil, that may be needed for the purpose of bringing about the
67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil. 451). reforms for which the petitioners pretend to be clamoring
To deny the truth or the proclamation of the President as for and in behalf of the people. The five (5) petitioners in L-
to the overwhelming majority vote in the Citizens’ 36165 and four (4) of the seven (7) petitioners in L-36164
Assemblies in favor of the new Constitution, is to charge were all participants in the political drama of this country
the President with falsification, which is a most grievous since 1946. They are witness to the frustrations of well-
accusation. Under the, rules of pleadings and evidence, the meaning Presidents who wanted to effect the reforms,
petitioners have the burden of proof by preponderance of especially for the benefit of the landless and the laboring
evidence in civil cases and by proof beyond reasonable class — how politics and political bargaining had stymied
doubt in criminal prosecutions, where the accused is the effectuation of such reforms thru legislation. The eight
always presumed to be innocent. Must this constitutional (8) petitioners in L-36164 and L-36165 may not have
right be reversed simply because the petitioner all assert participated in the systematic blocking of the desired
the contrary? Is the rule of law they pretend invoke only reforms in Congress or outside of it; but the question may
valid as long as it favors them? be asked as to what exactly they did to support such
The presumption of regularity in the performance of reforms. For the last seven (7) decades since the turn of the
official functions is accorded by the law and jurisprudence century, for the last thirty-five (35) years since the
to acts of public officers whose category in the official establishment of the Commonwealth government in 1935
hierarchy is very much lower than that of the Chief of and for the last twenty- seven (27) years since the
State. What reason is there to withhold such a presumption inauguration of the Republic on July 4, 1946, no tangible
in favor of the President? Does the fact that the President substantial reform had been effected, funded and seriously
belong to the party in power and that four (4) of the five (5) implemented, despite the violent uprisings in the thirties,
senators who are petitioners in and from 1946 to 1952, and the violent demonstrations of
recent memory. Congress and the oligarchs acted like
229
ostriches, “burying their heads in timeless sand.
230
VOL. 50, MARCH 31, 1973 229
L-36165 belong to the opposition party, justify a Javellana vs. The Executive Secretary
discrimination against the President in matters of this
nature? Unsupported as their word is by any credible and “Now the hopes for the long-awaited reforms to be within a
competent evidence under the rules of evidence, must the year or to are brighter. It would seem therefore to the duty
word of the petitioners prevail over that of the Chief of everyone including herein petitioners to give the present
Executive, because they happen to be former senators and leadership the opportunity to institute and carry out the
delegates to the Constitutional Convention? More than any needed reforms as provided for in the new or 1973
of the petitioners herein in all these cases, the incumbent Constitution and thru the means prescribed in that same
President realizes that he risks the wrath of his people Constitution.
being visited upon him and the adverse or hostile verdict of As stated in Wheeler vs. Board of Trustees, “a court is
history; because of the restrictions on the civil liberties of never justified in placing by implication a limitation upon
his people, inevitable concomitants of martial law, which the sovereign.”
necessarily entail some degree of sacrifice on the part of the This Court in the Gonzales and Tolentino cases
citizenry. Until the contrary is established or transcended its proper sphere and encroached upon the
demonstrated, herein petitioners should grant that the province exclusively reserved to and by the sovereign
Chief Executive is motivated by what is good for the people. This Court did not heed to the principle that the
courts are not the fountain of all remedies for all wrongs. [1861]). But who exactly was Chief Justice Roger Brooke
WE cannot presume that we alone can speak with wisdom Taney? The Editorial Board of Vol. 21 of the Encyclopedia
as against the judgment of the people on the basic Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly
instrument which affects their very lives. WE cannot recounts that he was born in 1777 in Calvert County,
determine what is good for the people or ought to be their Maryland, of parents who were landed aristocrats as well
fundamental law. WE can only exercise the power as slave owners. Inheriting the traditional conservatism of
delegated to Us by the sovereign people, to apply and his parents who belonged to the landed aristocracy, Taney
interpret the Constitution and the laws for the benefit of became a lawyer in 1799, practiced law and was later
the people, not against them nor to prejudice them. WE appointed Attorney General of Maryland. He also was a
cannot perform an act inimical to the interest of Our member of the Maryland state legislature for several
principal, who at any time may directly exercise their terms. He was a leader of the Federalist Party, which
sovereign power ratifying a new Constitution in the disintegrated after the war of 1812, compelling him to join
manner convenient to them. the Democratic Party of Andrew Jackson, also a slave
It is pertinent to ask whether the present Supreme owner and landed aristocrat, who later appointed him first
Court can function under the 1935 Constitution without as Attorney General of the United States, then Secretary of
being a part of the government established pursuant the Treasury and in 1836 Chief Justice of the United States
thereto. Unlike in the Borden case, supra, where there was Supreme Court to succeed Chief Justice John Marshall, in
at least another government claiming to be the legitimate which position he continued for 28 years until he died on
organ of the state of Rhode Island (although only on paper October 21, 1864. His death “went largely unnoticed and
as it had no established organ except Dorr who represented unregretted.” Because he himself was a slave owner and a
himself to be its head; in the cases at bar there is no other landed aristocrat, Chief Justice Taney sympathized with
government distinct from and maintaining a position the Southern States and, even while Chief Justice, hoped
against the existing government headed by the incumbent that the Southern States would be allowed to secede
Chief Executive. (See Taylor vs. Commonwealth, supra). peacefully from the Union. That he had no sympathy for
There is not even a rebel government duly organized as the Negroes was revealed by his decision in Dred Scott vs.
such even only for domestic purposes, let alone a rebel Sandford (19 How. 398 [1857]) where he pronounced that
government engaged in international the American Negro is not entitled to the rights of an
American citizen and that his status as a slave is
231
determined by his returning to a slave state. One can
232
VOL. 50, MARCH 31, 1973 231
negotiations. As heretofore stated, both the executive Javellana vs. The Executive Secretary
branch and the legislative branch established under the
1935 Constitution had been supplanted by the government therefore discern his hostility towards President Lincoln
functioning under the 1973 Constitution as of January 17, when he decided Ex parte Merryman, which animosity to
1973. The vice president elected under the 1935 say the least does no befit a judicial mind. Such a man
Constitution does not asset any claim to the leadership of could hardly be spoken of as a hero of the American Bar,
the Republic of the Philippines. Can this Supreme Court least of all of the American nation. The choice of heroes
legally exist without being part of any government? should not be expressed indiscriminately just to embellish
Brilliant counsel for petitioners in L-36165 has been one’s rhetoric.
quite extravagant in his appraisal of Chief Justice Roger Distinguished counsel in L-36165 appears to have
Brooke Taney whom he calls the “hero of the American committed another historical error, which may be due to
Bar,” because during the American civil war he apparently his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969
had the courage to nullify the proclamation of President ed., pp. 508-509) to this effect. On the contrary,
Lincoln suspending the privileges of the writ of habeas Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966
corpus in Ex parte Merryman (Federal Case No. 9487 & 1969 eds., 732-733), refers to Marshal Henri Philippe
Petain as the genuine hero or “Savior of Verdun”; because liberal thinkers that they are, do not recognize the sincerity
he held Verdun against the 1916 offensive of the German of those who entertain opinions that clash with their own.
army at the cost of 350,000 of his French soldiers, who Such an attitude does not sit well with the dictum that “We
were then demoralized and plotting mutiny. Certainly, the can differ without being difficult; we can disagree without
surviving members of the family of Marshal Petain would being disagreeable,” which distinguished counsel in L-
not relish the error. And neither would the members of the 36165 is wont to quote.
clan of Marshal Foch acknowledge the undeserved WE reserve the right to prepare an extensive discussion
accolade, although Marshal Foch has a distinct place in of the other points raised by petitioners, which We do not
history on his own merits. The foregoing clarification is find now necessary to deal with in view of Our opinion on
offered in the interest of true scholarship and historical the main issue.
accuracy, so that the historians, researchers and students IN VIEW OF THE FOREGOING, ALL THE
may not be led astray or be confused by esteemed counsel’s PETITIONS IN THESE FIVE CASES SHOULD BE
eloquence and mastery of the spoken and written word as DISMISSED.
well as by his eminence as law professor, author of law
books, political leader, and member of the newly integrated MAKASIAR, J.:
Philippine Bar. Pursuant to Our reservation, We now discuss the other
It is quite intriguing why the eminent counsel and co- issues raised by the petitioners.
petitioner in L-36164 did not address likewise his challenge II
to the five (5) senators who are petitioners in L-36165 to EVEN IF ISSUE IS JUSTICIABLE, PEOPLE’S
also act as “heroes and idealists,” to defy the President by RATIFICATION, ADOPTION OR ACQUIESCENCE
holding sessions by themselves alone in a hotel or in their CREATES STRONG PRESUMPTION OF VALIDITY OF
houses if they can muster a quorum or by causing the 1973 CONSTITUTION.
arrest of other senators to secure a quorum and thereafter As intimated in the aforecited cases, even the courts,
remove respondents Puyat and Roy (Avelino, et al. vs. which affirm the proposition that the question as to
Cuenco, et al., 83 Phil. 17 [1949]), if they believe most whether a constitutional amendment or the revised or new
vehemently in the justice and correctness of their position Constitution
that the 1973 Constitution has not been validly ratified,
234
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 234 SUPREME COURT REPORTS ANNOTATED
233 Javellana vs. The Executive Secretary
has been validly submitted to the people for ratification in

VOL. 50, MARCH 31, 1973 233
accordance with the procedure prescribed by the existing
Javellana vs. The Executive Secretary Constitution, is a justiciable question, accord all
presumption of validity to the constitutional amendment or
credibility, if they proceeded first to hold a rump session the revised or new Constitution after the government
outside the legislative building; because it is not officials or the people have adopted or ratified or acquiesced
unreasonable to demand or to exact that he who exhorts in the new Constitution or amendment, although there was
others to be brave must first demonstrate his own courage. an illegal or irregular or no submission at all to the people.
Surely, they will not affirm that the mere filing of their (Collier vs. Gray, 4th Dec. Dig. 935 [1934], Hammond vs.
petition in L-36165 already made them “heroes and Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74
idealists.” The challenge likewise seems to insinuate that Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
the members of this Court who disagree with petitioners’ Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs.
views are materialistic cowards or mercenary fence-sitters. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70
The Court need not be reminded of its solemn duty and Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE
how to perform it. WE refuse to believe that petitioners and 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs.
their learned as well as illustrious counsels, scholars and Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971,
the courts stressed that the constitutional amendment or National Assembly to be presided by a Prime Minister who
the new Constitution should not be condemned “unless our wields both legislative and executive powers and is the
judgment its nullity is manifest beyond reasonable doubt” actual Chief Executive, for the President contemplated in
(1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 the new Constitution exercises primarily ceremonial
Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., prerogatives. The new Constitution likewise shortened
supra). abruptly the terms of the members of the present Congress
Mr. Justice Enrique M. Fernando, speaking for the (whose terms end on December 31, 1973, 1975 and 1977)
Court, pronounced that the presumption of which provides that the new Constitution shall take effect
constitutionality must persist in the absence of factual immediately upon its ratification (Sec. 16, Article XVII,
foundation of record to overthrow such presumption 1973 Constitution). The fact that Section 2 of the same
(Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July Article XVIII secures to the members of Congress
31, 1967, 20 SCRA 849). membership in the interim National Assembly as long as
III they opt to serve therein within thirty (30) days after the
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH ratification of the proposed Constitution, affords them little
AND INDEPENDENT OF CONGRESS, EXECUTIVE comfort; because the convening of the interim National
AND JUDICIARY. Assembly depends upon the incumbent President (under
The Constitutional Convention is co-ordinate and co- Sec. 3[1], Art. XVII, 1973 Constitution). Under the
equal with, as well as independent of, the three grand foregoing circumstances, the members of Congress, who
departments of the Government, namely, the legislative, were elected under the 1935 Constitution, would not be
the executive and the judicial. As a fourth separate and disposed to call a plebiscite and appropriate funds therefor
distinct branch, to emphasize its independence, the to enable the people to pass upon the 1973 Constitution,
Convention cannot be dictated to by either of the other ratification of which means their elimination from the
three departments as to the content as well as the form of political scene. They will not provide the means for their
the Charter that it proposes. It enjoys the same immunity own liquidation.
from interference or supervision by any of the Because the Constitutional Convention, by necessary
implication as it is indispensable to its independence and
235
effectiveness, possesses the power to call a plebiscite and to
236
VOL. 50, MARCH 31, 1973 235
aforesaid branches of the Government in its proceedings, Javellana vs. The Executive Secretary
including the printing of its own journals (Tañada and
Fernando, Constitution of the Philippines, 1952 ed., Vol. I, appropriate funds for the purpose, it inescapably must
pp. 8-9; Malcolm and Laurel, Phil. Const. Law, p. 22; have the power to delegate the same to the President, who,
Frantz vs. Autry, 91 Pac. 193). Implicit in that in estimation of the Convention can better determine
independence, for the purpose of maintaining the same appropriate time for such a referendum as well as the
unimpaired and in order that its work will not be amount necessary to effect the same; for which reason the
frustrated, the Convention has the power to fix the date for Convention thru Resolution No. 29 approved on November
the plebiscite and to provide funds therefor. To deny the 22, 1972, which superseded Resolution No. 5843 adopted on
Convention such prerogative, would leave it at the tender November 16, 1972, proposed to the President “that a
mercy of both legislative and executive branches of the decree be issued calling a plebiscite for the ratification of
Government. An unsympathetic Congress would not be the proposed new Constitution such appropriate date as he
disposed to submit the proposed Constitution drafted by shall determine and providing for the necessary funds
the Constitutional Convention to the people for ratification, therefor, xx,” after stating in “whereas” clauses that the
much less appropriate the necessary funds therefor. That 1971 Constitutional Convention expected to complete its
could have been the fate of the 1973 Constitution, because work by the end of November, 1972 that the urgency of
the same abolished the Senate by creating a unicameral instituting reforms rendered imperative the early approval
of the new Constitution, and that the national and local President the determination of the manner by which the
leaders desire that there be continuity in the immediate plebiscite should be conducted, who shall supervise the
transition from the old to the new Constitution. plebiscite, and who can participate in the plebiscite. The
If Congress can legally delegate to the Chief Executive fact that said Resolution No. 29 expressly states “that
or his subaltern the power to promulgate subordinate rules copies of this resolution as approved in plenary session be
and regulations to implement the law, this authority to transmitted to the President of the Philippines and the
delegate implementing rules should not be denied to the Commission on Elections for implementation,” did not in
Constitutional Convention, a co-equal body. effect designate the Commission on Elections as supervisor
Apart from the delegation to the Chief Executive of the of the plebiscite. The copies of said resolution that were
power to call a plebiscite and to appropriate funds therefor transmitted to the Commission on Elections at best serve
by the Constitutional Convention thru its Resolution No. merely to notify the Commission on Elections about said
29, the organization of the Citizens’ Assemblies for resolution, but not to direct said body to supervise the
consultation on national issues, is comprehended within plebiscite. The calling as well as conduct of the plebiscite
the ordinance-making power of the President under Section was left to the discretion of the President, who, because he
63 of the Revised Administrative Code, which expressly is in possession of all the facts funnelled to him by his
confers on the Chief Executive the power to promulgate intelligence services, was in the superior position to decide
administrative acts and commands touching on the when the plebiscite shall be held, how it shall be conducted
organization or mode of operation of the government or re- and who shall oversee it.
arranging or re-adjusting any district, division or part of It should be noted that in approving said Resolution No.
the Philippines “or disposing of issues of general concern xx 29, the Constitutional Convention itself recognized the
xx.” (Emphasis supplied). Hence, as consultative bodies validity of, or validated Presidential Proclamation No. 1081
representing the localities including the barrios, their placing the entire country under martial law by resolving
creation by the President thru Presidential Decree No. 86 to “propose to President Ferdinand E. Marcos that a
of December 31, 1972, cannot be successfully challenged. decree be issued calling a plebiscite x x x.” The use of the
The employment by the President of these Citizens’ term “decree” is significant for the basic orders regulating
the conduct of all inhabitants are
237
238
VOL. 50, MARCH 31, 1973 237

Assemblies for consultation on the 1973 Constitution or on
whether there was further need of a plebiscite thereon, — issued in that form and nomenclature by the President as
both issues of national concern — is still within the the Commander in Chief and enforcer of martial law.
delegated authority reposed in him by the Constitutional Consequently, the issuance by the President of Presidential
Convention as aforesaid. Decree No. 73 on December 1, 1972 setting the plebiscite on
It should be noted that Resolution No. 29, which January 15, 1973 and appropriating funds therefor
superseded Resolution No. 5843, does not prescribe that pursuant to said Resolution No. 29, is a valid exercise of
the plebiscite must be conducted by the Commission on such delegated authority.
Elections in accordance with the provisions of the 1971 Such delegation, unlike the delegation by Congress of
Revised Election Code. If that were the intention of the the rule-making power to the Chief Executive or to any of
Constitutional Convention in making the delegation, it his subalterns, does not need sufficient standards to
could have easily included the necessary phrase for the circumscribe the exercise of the power delegated, and is
purpose, some such phrase like “to call a plebiscite to be beyond the competence of this Court to nullify. But even if
supervised by the Commission on Elections in accordance adequate criteria should be required, the same are
with the provisions of the 1971 Revised Election Code (or contained in the “Whereas” clauses of the Constitutional
with existing laws).” That the Constitutional Convention Convention Resolution No. 29, thus:
omitted such phrase, can only mean that it left to the
“WHEREAS, the 1971 Constitutional Convention is expected to VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE
complete its work of drafting a proposed new Constitution for the THE 1973 CONSTITUTION
Republic by the end of November, 1972; (1) Petitions challenge the 1973 draft as vague and
“WHEREAS, in view of the urgency of instituting reforms, the incomplete, and alluded to their arguments during the
early approval of the New Constitution has become imperative; hearings on December 18 and 19, 1972 on the Plebiscite
“WHEREAS, it is the desire of the national and local leaders Cases. But the inclusion of questionable or ambiguous
that there be continuity in the immediate political transition from provisions does not affect the validity of the ratification or
the old to the New Constitution”; (Annex “1” of Answer, Res. No. adoption of the 1973 Constitution itself (Pope vs. Gray, 104
29, Constitutional Convention). SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and
As Mr. Justice Fernando, with whom Messrs. Justices defenders of the American Constitution, answering the
Barredo, Antonio and the writer concurred in the Plebiscite critics of the Federal Constitution, stated that: “I never
Cases, stated: expect to see a perfect work from imperfect man. The result
of the deliberations of all collective bodies must necessarily
“x x x Once this work of drafting has been completed, it could
be a compound, as well of the errors and prejudices as of
itself direct the submission to the people for ratification as
contemplated in Article XV of the Constitution. Here it did not do
the good sense and wisdom, of the individuals of whom
so. With Congress not being in session, could the President, by the
they are composed. The compacts which are to embrace
decree under question, call for such a plebiscite? Under such
thirteen distinct States in a common bond of amity and
union, must necessarily be a compromise of as many
circumstances, a negative answer certainly could result in the
dissimilar interests and inclinations. How can perfection
work of the Convention being rendered nugatory. The view has
spring from such materials?” (The Federalist, Modern
been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence the task of
Library Ed., pp. xx-xxi).
submission becomes ministerial, with the political branches
(2) The 1973 Constitution is likewise impugned on the
devoid of any discretion as to 240
239

ground that it contains provisions which are ultra vires or
the holding of an election for that purpose. Nor is the beyond the power of the Constitutional Convention to
appropriation by him of the amount necessary to be considered as propose.
offensive to the Constitution. If it were done by him in his capacity This objection relates to the wisdom of changing the
as President, such an objection would indeed have been form of government from Presidential to Parliamentary
formidable, not to say insurmountable. If the appropriation were and including such provisions as Section 3 of Article IV,
made in his capacity as agent of the Convention to assure that Section 15 of Article XIV and Sections 3(2) and 12 of Article
there be submission to the people, then such an argument loses XVII in the 1973 Constitution.
force. The Convention itself could have done so. It is Article IV —
understandable why it should be thus. If it were otherwise, then a
legislative body, the appropriating arm of the government, could “Sec. 3. The right of the people to be secure in their persons,
conceivably make use of such authority to compel the Convention houses, papers, and effects against unreasonable searches and
to submit to its wishes, on pain of being rendered financially seizures of whatever nature and for any purpose shall not be
distraught. The President then, if performing his role as its agent, violated, and no search warrant or warrant of arrest shall issue
could be held as not devoid of such competence. (pp. 2-3, except upon probable cause to be determined by the judge, or such
concurring opinion of J. Fernando in L-35925, etc., emphasis other responsible officer as may be authorized by law, after
supplied). examination under oath or affirmation of the complainant and the
witnesses may produce, and particularly describing the place to
IV be searched, and the persons or things to be seized.”

Article XIV — sovereign powers delegated thereto by the people —

although insofar only as the determination of the proposals
“Sec. 15. Any provision of paragraph one, Section fourteen, to be made and formulated by said body is concerned — but
Article Eight and of this Article notwithstanding, the Prime also, because said proposals cannot be valid as part of our
Minister may enter into international treaties or agreements as Fundamental Law unless and until ‘approved by the
the national welfare and interest may require.” (Without the majority of the votes cast at an election which’ said
consent of the National Assembly.) proposals ‘are submitted to the people for their ratification,’
as provided in Section 1 of Article XV of the 1935
Article XVII —
Constitution.” (pp. 17-18, Decision in L-35925, etc.).
“Sec. 3(2) All proclamations, orders, decrees, instructions, and
acts promulgated, issued, or done by the incumbent President
This Court likewise enunciated in Del Rosario vs.
Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367) that the
shall be part of the law of the land, and shall remain valid, legal,
Constitutional Convention has the authority to “entirely
binding and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or
overhaul the present Constitution and propose an entirely
superseded by subsequent proclamations, orders, decrees,
new Constitution based on an ideology foreign to the
instructions, or other acts of the incumbent President, or unless
democratic system x x x; because the same will be
submitted to the people for ratification. Once ratified by the
expressly and explicitly modified or repealed by the regular
sovereign people, there can be no debate about the validity
National Assembly.
of the new Constitution.”
xx xx xx xx xx
“Sec. 12. All treaties, executive agreements, and contracts
Mr. Justice Fernando, concurring in the same Plebiscite
entered into by the Government, or any subdivision, agency, or
Cases, cited the foregoing pronouncement in the Del
instrumentality thereof, including government-owned or
Rosario case, supra, and added: “xx xx it seems to me a
sufficient answer that once convened, the area open for
controlled
deliberation to a constitutional convention xx xx, is
241 practically limitless” (citing
242
VOL. 50, MARCH 31, 1973 241
corporations, are hereby recognized as legal, valid and binding. Javellana vs. The Executive Secretary
When the national interest so requires, the incumbent President
of the Philippines or the interim Prime Minister may review all Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
contracts, concessions, permits, or other forms of privileges for the Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v.
exploration, development, exploitation, or utilization of natural Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell,
resources entered into, granted, issued or acquired before the 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE
ratification of this Constitution.” 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW
533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105
In the Plebiscite Cases (L-35925, L-35929, L-35940, L- Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl.
35942, L-35948, L-35953, L-35961, L-35965, & L-35979),
202 [1930]; School District vs. City of Pontiac, 247 NW 474,
Chief Justice Roberto Concepcion, concurred in by Justices
262 Mich. 338 [1933]).
Fernando, Barredo, Antonio and the writer, overruled this
Mr. Justice Barredo, in his concurring opinion in said
objection, thus:
Plebiscite Cases, expressed the view “that when the people
“x x x Regardless of the wisdom and moral aspects of the elected the delegates to the Convention and when the
contested provisions of the proposed Constitution, it is my delegates themselves were campaigning, such limitation of
considered view that the Convention was legally deemed fit the scope of their function and objective was not in their
to propose — save perhaps what is or may be insistent with minds.”
what is now known, particularly in international law, as V
Jus Cogens — not only because the Convention exercised
1973 CONSTITUTION DULY ADOPTED AND the newspapers of general circulation for at least four
PROMULGATED. months prior to such election.”
Petitioners next claim that the 1971 Constitutional This position certainly imposes limitation on the
Convention adjourned on November 30, 1972 without sovereign people, who have the sole power of ratification,
officially promulgating the said Constitution in Filipino as which imposition by the Court is never justified (Wheeler
required by Sections 3(1) of Article XV on General vs. Board of Trustees, supra).
Provisions of the 1973 Constitution. This claim is without In effect, petitioners and their counsels are amending by
merit because their Annex “M” is the Filipino version of the a strained and tortured construction Article XV of the 1935
1973 Constitution, like the English version, contains the Constitution. This is a clear case of usurpation of sovereign
certification by President Diosdado Macapagal of the power they do not possess — through some kind of
Constitutional Convention, duly attested by its Secretary, escamotage. This Court should not commit such a grave
that the proposed Constitution, approved on second reading error in the guise of judicial interpretation.
on the 27th day of November, 1972 and on third reading in In all the cases where the court held that illegal or
the Convention’s 291st plenary session on November 29, irregular submission, due to absence of substantial
1972 and accordingly signed on November 1972 by the compliance with the procedure prescribed by the
delegates whose signatures are thereunder affixed. It Constitution and/or the law, nullifies the proposed
should be recalled that Constitutional Convention amendment or the new Constitution, the procedure
President Diosdado Macapagal was, as President of the prescribed by the state Constitution is so detailed that it
Republic 1962 to 1965, then the titular head of the Liberal specifies that the submission should be at a general or
Party to which four (4) of the petitioners in L-36165 special election, or at the election for members of the State
including their counsel, former Senator Jovito Salonga,
244
belong. Are they repudiating and disowning their former
party leader and benefactor?
243
VOL. 50, MARCH 31, 1973 243

legislature only or of all state officials only or of local
Javellana vs. The Executive Secretary 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
VI publication of the proposed amendment or a new
ARTICLE XV OF 1935 CONSTITUTION DOES NOT Constitution for a specific period prior to the election or
PRESCRIBE ANY PROCEDURE FOR RATIFICATION plebiscite; and designates the officer to conduct the
OF 1973 CONSTITUTION. plebiscite, to canvass and to certify the results, including
(1) Article XV of the 1935 Constitution simply provides the form of the ballot which should so state the substance
that “such amendments shall be valid as part of this of the proposed amendments to enable the voter to vote on
Constitution when approved by a majority of the votes cast each amendment separately or authorizes expressly the
at an election at which the amendments are submitted to Constitutional Convention or the legislature to determine
the people for ratification.” the procedure or certain details thereof. See the State
But petitioners construe the aforesaid provision to read: Constitutions of Alabama [1901]; Arizona [1912]; Arkansas
“Such amendments shall be valid as part of this [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887];
Constitution when approved by a majority of the votes cast Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857];
at an election called by Congress at which the amendments Kansas [1861]; Kentucky [1891]; Louisiana [1921];
are submitted for ratification by the qualified electors Maryland [1867]; Massachusetts [1790]; Michigan [1909];
defined in Article V hereof, supervised by the Commission Minnesota [1857]; Mississippi [1890]; and Missouri [1945]).
on Elections in accordance with the existing election law As typical examples:
and after such amendments shall have been published in all Constitution of Alabama (1901):

“Article XVIII. Mode of Amending the Constitution “Sec. 285. Form of ballot for amendment. Upon the ballots used
“Sec. 284. Legislative Proposals. Amendments may be proposed at all elections provided for in section 284 of this Constitution, the
to this Constitution by the legislature in the manner following: substance or subject matter of each proposed amendment shall be
The proposed amendments shall be read in the house in which so printed that the nature thereof shall be clearly indicated.
they originate on three several days, and, if upon the third Following each proposed amendment on the ballot shall be
reading, three-fifths of all the members elected to that house shall printed the word “Yes” and immediately under that shall be
vote in favor thereof, the proposed amendments shall be sent to printed the word “No.” The choice of the elector shall be indicated
the other house, in which they shall likewise be read on three by a cross mark made by him or under his direction, opposite the
several days, and if upon the third reading, three-fifths of all the word expressing his desire, and no amendment shall be adopted
members elected that house shall vote in favor of the proposed unless it receives the affirmative vote of a majority of all the
amendments, the legislature shall order an election by the qualified electors who vote at such election.”
qualified electors of the state upon such proposed amendments, to
be held either at the general election next succeeding the session of Constitution of Arkansas (1874):
the legislature at which the amendments are proposed or upon
“Article XIX. Miscellaneous Provisions.
another day appointed by the legislature, not less than three
“Sec. 22. Constitutional amendments. Either branch of the
months after the final adjournment of the session of the
General Assembly at a regular session thereof may propose
legislature at which the amendments were proposed. Notice of
amendments to this Constitution, and, if the same be agreed to by
such election, together with the proposed amendments, shall be
a majority of all the members, elected to each house, such
given by proclamation of the governor, which shall be published in
proposed amendments shall be entered on the journal with the
every county in such manner as the legislature shall direct, for at
yeas and nays, and published in at least one newspaper in each
least eight successive weeks next preceding the day appointed for
county, where a newspaper is published, for six months
such election. On the day so
immediately preceding the next general election for Senators and
245 Representatives, at which time the same shall be submitted to the
electors of the State for
VOL. 50, MARCH 31, 1973 245 246
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
approval or rejection, and if a majority of the electors voting at
such general election shall open a poll for the vote of the qualified
such election adopt such amendments, the same shall become a
electors upon the proposed amendments; if it be held on a day
part of this Constitution; but no more than three amendments
other than that of a general election, officers for such election
shall be proposed or submitted at the same time. They shall be so
shall be appointed; and the election shall be held in all things in
submitted as to enable the electors to vote on each amendment
accordance with the law governing general elections. In all
separately.
elections upon such proposed amendments, the votes cast thereat
shall be canvassed, tabulated, and returns thereof be made to the Constitution of Kansas (1861):
secretary of state, and counted, in the same manner as in elections
for representatives to the legislature; and if it shall thereupon “Article XIV. Amendments.
appear that a majority of the qualified electors who voted at such “Sec. 1. Proposal of amendments; publications; elections.
election upon the proposed amendments voted in favor of the Propositions for the amendment of this constitution may be made
same, such amendments shall be valid to all intents and purposes by either branch of the legislature; and if two thirds of all the
as parts of this Constitution. The result of such election shall be members elected to each house shall concur therein, such
made known by proclamation of the governor. Representation in proposed amendments, together with the yeas and nays, shall be
the legislature shall be based upon population, and such basis of entered on the journal; and the secretary of state shall cause the
representation shall not be changed by constitutional same to be published in at least one newspaper in each county of
amendments. the state where a newspaper is published, for three months

preceding the next election for representatives, at which time, the Constitution of Missouri (1945):
same shall be submitted to the electors, for their approval or
rejection; and if a majority of the electors voting on said “Article XII. Amending the Constitution.
amendments, at said election, shall adopt the amendments, the “Sec. 2(b). Submission of amendments proposed by general
same shall become a part of the constitution. When more than one assembly or by the initiative. All amendments proposed by the
amendment shall be submitted at the same time, they shall be so general assembly or by the initiative shall be submitted to the
submitted as to enable the electors to vote on each amendments electors for their approval or rejection by official ballot title as
separately; and not more than three propositions to amend shall may be provided by law, on a separate ballot without party
be submitted at the same election.” designation, at the next general election, or at a special election
called by the governor prior thereto, at which he may submit any
Constitution of Maryland (1867): of the amendments. No such proposed amendment shall contain
more than one amended and revised article of this constitution, or
“Article XIV. Amendments to the Constitution. one new article which shall not contain more than one subject and
“Sec. 1. Proposal in general assembly; publication; submission matters properly connected therewith. If possible, each proposed
to voters; governor’s proclamation. The General Assembly may amendment shall be published once a week for two consecutive
propose Amendments to this Constitution; provided that each weeks in two newspapers of different political faith in each
Amendment shall be embraced in a separate bill, embodying the county, the last publication to be not more than thirty nor less
Article or Section, as the same will stand when amended and than fifteen days next preceding the election. If there be but one
passed by three fifths of all the members elected to each of the newspaper in any county, publication of four consecutive weeks
two Houses, by yeas and nays, to be entered on the Journals with shall be made. If a majority of the votes cast thereon is in favor of
the proposed Amendment. The bill or bills proposing amendment any amendment, the same shall take effect at the end of thirty
or amendments shall be published by order of the Governor, in at days after the election. More than one amendment at the same
least two newspapers, in each County, where so many may be election shall be so submitted as to enable the electors to vote on
published, and where not more than one may be published, then each amendment separately.”
in the newspaper, and in three newspapers published in the City
of Baltimore, once a week for four weeks immediately preceding Article XV of the 1935 Constitution does not require a
the next ensuing general specific procedure, much less a detailed procedure for
submission or ratification. As heretofore stated, it does not
247
248
VOL. 50, MARCH 31, 1973 247
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
specify what kind of election at which the new Constitution
votes cast for and against said proposed amendment or
shall be submitted; nor does it designate the Commission
amendments, severally, shall be returned to the Governor, in the
on Elections to supervise the plebiscite. Neither does it
manner prescribed in other cases, and if it shall appear to the
limit the ratification to the qualified electors as defined in
Article V of the 1935 Constitution. Much less does it
Governor that a majority of the votes cast at said election on said
require the publication of the proposed Constitution for any
amendment or amendments, severally, were cast in favor thereof,
the Governor shall, by his proclamation, declare the said
specific period before the plebiscite nor does it even
amendment or amendments having received said majority of
insinuate that the plebiscite should be supervised in
votes, to have been adopted by the people of Maryland as part of
accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the
the Constitution thereof, and henceforth said amendment or
procedure for submission of the proposed Constitution to
amendments shall be part of the said Constitution. When two or
more amendments shall be submitted in the manner aforesaid, to
the people for ratification. It does not make any reference
the voters of this State at the same election, they shall be so
to the Commission on Elections as the body that shall
submitted as that each amendment shall be voted on separately.
supervise the plebiscite. And Article XV could not make

any reference to the Commission on Elections because the therein that the plebiscite on amendments shall be
original 1935 Constitution as ratified on May 14, 1935 by supervised by the Commission on Elections.
the people did not contain Article X on the Commission on 3) If the framers of the 1935 Constitution and the people
Elections, which article was included therein pursuant to in ratifying the same on May 14, 1935 wanted that only the
an amendment by that National Assembly proposed only qualified voters under Article V of the 1935 Constitution
about five (5) years later — on April 11, 1940, ratified by should participate in the referendum on any amendment or
the people on June 18, 1940 as approved by the President revision thereof, they could have provided the same in 1935
of the United States on December 1940 (see Sumulong vs. or in the 1940 amendment by just adding a few words to
Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Article XV by changing the last phrase to “submitted for
Law, 1966 ed., p. 13). So it cannot be said that the original ratification to the qualified electors as defined in Article V
framers of the 1935 Constitution as ratified May 14, 1935 hereof,” or some such similar phrases.
intended that a body known as the Commission on Then again, the term “people” in Article XV cannot be
Elections should be the one to supervise the plebiscite, understood to exclusively refer to the qualified electors
because the Commission on Elections was not in existence under Article V of the 1935 Constitution because the said
then as was created only by Commonwealth Act No. 607 term “people” as used in several provisions of the 1935
approved on August 22, 1940 and amended by Constitution, does not have a uniform meaning. Thus in
Commonwealth Act No. 657 approved on June 21, 1941 the preamble, the term “Filipino people” refer, to all
(see Tañada & Carreon, Political Law of the Philippines, Filipino citizens of all ages of both sexes. In Section 1 of
Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, Article II on the Declaration of Principles, the term
170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & “people” in whom sovereignty resides and from whom all
Fernando, Constitution of the Philippines, 1953 ed., Vol. I, government authority emanates, can only refer also to
p. 5, Vol. II, pp. 11-19). Filipino citizens of all ages and of both sexes. But in
Because before August, 1940 the Commission on Section 5 of the same Article II on social justice, the term
Election was not yet in existence, the former Department of “people” comprehends not only Filipino citizens but also all
Interior (now Department of Local Governments and aliens residing in the country of all ages and of both sexes.
Community Development) supervised the plebiscites on the Likewise, that is the same connotation of the term “people”
1937 amendment on woman’s suffrage, the 1939 employed in Section 1(3) of Article III on the Bill of Rights
amendment to the Ordinance appended to the 1935 concerning searches and seizures.
Constitution (Tydings-Kocialkowski Act of the U.S.
250
Congress) and the three
249
VOL. 50, MARCH 31, 1973 249
When the 1935 Constitution wants to limit action or the
1940 amendments on the establishment of a bicameral exercise of a right to the electorate, it does so expressly as
Congress, the re-election of the President and the Vice- the case of the election of senators and congressmen.
President, and the creation of the Commission on Elections Section 2 Article VI expressly provides that the senators
(ratified on June 18, 1940). The supervision of said “shall be chosen at large by the qualified electors of the
plebiscites by the then Department of Interior was not Philippines as may provided by law.” Section 5 of the same
automatic, but by virtue of an express authorization in Article VI specifically provides that congressmen shall “be
Commonwealth Act Nos. 34, 49 and 517. elected by the qualified electors.” The only provision that
If the National Assembly then intended that the seems to sustain the theory of petitioners that the term
Commission on Elections should also supervise the “people” in Article XV should refer to the qualified electors
plebiscite for ratification of constitutional amendments or as defined in Article V of the 1935 Constitution is the
revision, it should have likewise proposed the provision that the President and Vice-President shall be
corresponding amendment to Article XV by providing elected “by direct vote of the people.” (Sec. 2 of Art. VII of
the 1935 Constitution). But this alone cannot be conclusive polling place not later than April 22, 1937” (Sec. 12, Com.
as to such construction, because of explicit provisions of Act No. 34), specifies that the provisions of the Election
Sections 2 and 5 of Article VI, which specifically prescribes Law regarding, the holding of a special election, insofar as
that the senators and congressmen shall be elected by the said provisions are not in conflict with it, should apply to
qualified electors. the said plebiscite (Sec. 3, Com. Act No. 34); and, that the
As aforesaid, most of the constitutions of the various votes cast according to the returns of the board of
states of the United States, specifically delineate in detail inspectors shall be counted by the National Assembly (Sec.
procedure of ratification of amendments to or revision of 10, Com. Act No. 34).
said Constitutions and expressly require ratification by The election laws then in force before 1938 were found
qualified electors, not by the generic term “people.” in Sections 392-483 of the Revised Administrative Code.
The proposal submitted to the Ozamis Committee on the Sec. 1 of Com. Act No. 357, the previous Election Code
Amending Process of the 1934-35 Constitutional enacted on August 22, 1938, makes it expressly applicable
Convention satisfied that the amendment shall be to plebiscites. Yet the subsequent laws, namely, Com. Act
submitted to qualified election for ratification. This Nos. 492 and 517 and Rep. Act No. 73 calling for the
proposal was not accepted indicating that the 1934-35 plebiscite on the constitutional amendments in 1939, 1940
Constitutional Convention did intend to limit the term and 1946, including the amendment creating the
“people” in Article XV of the 1935 Constitution to qualified Commission on Elections, specifically provided that the
electors only. As above demonstrated, the 1934-35 provisions of the existing election law shall apply to such
Constitutional Convention limits the use of the term plebiscites insofar as they are not inconsistent with the
“qualified electors” to elections of public officials. It did not aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act
want to tie the hands of succeeding future constitutional No. 73. Thus —
conventions as to who should ratify the proposed Commonwealth Act No. 492, enacted on September 19,
amendment or revision. 1939, calling for a plebiscite on the proposed amendments
(4) It is not exactly correct to opine that Article XV of to the Constitution adopted by the National Assembly on
1935 Constitution on constitutional amendment September 15, 1939, consists of 8 sections and provides
contemplates the automatic applicability of election laws to that the proposed amendments to the Constitution adopted
plebiscites on proposed constitutional amendments or in Resolution No. 39 on September 15, 1939 “shall be
revision. submitted to the Filipino people for approval or disapproval
at a general election to be
251
252
VOL. 50, MARCH 31, 1973 251


The very phraseology of the specific laws enacted by the held throughout the Philippines on Tuesday, October 24,
National Assembly and later by Congress, indicates that 1939”; that the amendments to said Constitution proposed
there is need of a statute expressly authorizing the in “Res. No. 38, adopted on the same date, shall be
application of the election laws to plebiscites of this nature. submitted at following election of local officials,” (Sec. 1,
Thus, Com. Act No. 34 on the woman’s suffrage Com. Act No. 492) that the said amendments shall be
amendment enacted on September 30, 1936, consists of 12 published in English and Spanish in three consecutive
sections and, aside from providing that “there shall be held issues of the Official Gazette at least ten (10) days prior to
a plebiscite on Friday, April 30, 1937, on the question of the elections; that copies thereof shall be posted not later
woman’s suffrage xx and that said amendment shall be than October 20, 1939 (Sec. 2, Com. Act 492); that the
published in the Official Gazette in English and Spanish election shall be conducted according to provisions of the
for three consecutive issues at least fifteen (15) days prior to Election Code insofar as the same may be applicable; that
said election, xx and shall be posted in a conspicuous place within thirty (30) days after the election, Speaker of the
in its municipal and provincial office building and in its National Assembly shall request the President to call a
special session of the Assembly for the purpose of From the foregoing provisions, it is patent that Article
canvassing the returns and certify the results thereof (Sec. XV of the 1935 Constitution does not contemplate nor
6, Com. Act No. 492). envision the automatic application of the election law; and
Commonwealth Act No. 517, consisting of 11 sections, even at that, not all the provisions of the election law were
was approved on April 25, 1940 and provided, among made applicable because the various laws aforecited
others: that the plebiscite on the constitutional contain several provisions which are inconsistent with the
amendments providing bicameral Congress, re-election of provisions of the Revised Election Code (Com. Act No. 357).
the President and Vice-President, and the creation of a Moreover, it should be noted that the period for the
Commission on Elections shall be held at a general election publication of the copies of the proposed amendments was
on June 18, 1940 (Sec. 1); that said amendments shall be about 10 days, 15 days or 20 days, and for posting at least 4
published in three consecutive issues of the Official Gazette days, 8 days or 30 days.
in English and Spanish at least 20 days prior to the Republic Acts Nos. 180 and 6388 likewise expressly
election and posted in every local government office provide that the Election Code shall apply to plebiscites
building and polling place not later than May 18, 1940 (Sec. (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act
2); that the election shall be conducted in conformity with No. 6388).
the Election Code insofar as the same may be applicable If the Election Code ipso facto applies to plebiscites
(Sec. 3) that copies of the returns shall be forwarded to the under Article XV of the 1935 Constitution, there would be
Secretary of National Assembly and the Secretary of no need for Congress to expressly provide therefor in the
Interior (Sec. 7); that the National Assembly shall canvass election laws enacted after the inauguration of the
the returns to certify the results at a special session to be Commonwealth government under the 1935 Constitution.
called by President (Sec. 8). (5) Article XV of the 1935 Constitution does not specify
Republic Act No. 73 approved on October 21, 1946 who can vote and how they shall vote. Unlike the various
calling for a plebiscite on the parity amendment consists of State Constitutions of the American Union (with few
8 sections provides that the Amendment “shall be exceptions), Article XV does not state that only qualified
submitted to the people, for approval or disapproval, at a electors can vote in the plebiscite. As above-intimated, most
general election which shall be held on March 11, 1947, in of the Constitutions of the various states of the United
accordance with the provisions of this Act” (Sec. 1, R.A. No. States provide for very detailed amending process and
73); that the said amendment shall be published in English specify that only qualified electors can vote at such
and Spanish in three plebiscite or election.
253 254
consecutive issues of the Official Gazette at least 20 days

prior to the election; that copies of the same shall be Congress itself, in enacting Republic Act No. 3590,
posted in a conspicuous place and in every polling place not otherwise known as the Barrio Charter, which was
later than February 11, 1947 (Section 2, R.A. No. 73); that approved on June 17, 1967 and superseded Republic Act
the provisions of Com. Act No. 357 (Election Code) and No. 2370, expanded the membership of the barrio assembly
Com. Act No. 657 creating the Commission on Elections, to include citizens who are at least 18 years of age, whether
shall apply to the election insofar as they are not literate or not, provided they are also residents of the
inconsistent with this Act (Sec. 3, R.A. No. 73); and that barrio for at least 6 months (Sec. 4, R.A. No. 3590).
within 30 days after the election, the Senate and House of
Representatives shall hold a joint session to canvass the “Sec. 4. The barrio assembly. — The barrio assembly shall
returns and certify the results thereof (Section 6, R.A. No. consist of all persons who are residents of the barrio for at least
73). 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 voters, and such other information relevant to the holding of the
assembly members kept by the Barrio Secretary. plebiscite.
“The barrio assembly shall meet at least once a year to hear the “All duly registered barrio assembly members qualified to vote
annual report of the barrio council concerning the activities and may vote in the plebiscite. Voting procedures may be made either
finances of the barrio. in writing as in regular election, and/or declaration by the
“It shall meet also at the case of the barrio council or upon voters to the board of election tellers. The board of election tellers
written petition of at least One-Tenth of the members of the shall be the same board envisioned by section 8, paragraph 2 of
barrio assembly. this Act, in case of vacancies in this body, the barrio council may
“No meeting of the barrio assembly shall take place unless fill the same.
notice is given one week prior to the meeting except in matters “A plebiscite may be called to decide on the recall of any
involving public safety or security in which case notice within a member of the barrio council. A plebiscite shall be called to
reasonable time shall be sufficient. The barrio captain, or in his approve any budgetary, supplemental appropriations or special
absence, the councilman acting as barrio captain, or any assembly tax ordinances.
member selected during the meeting, shall act as presiding officer “For taking action on any of the above enumerated measures,
at all meetings of the barrio assembly. The barrio secretary or in majority vote of all the barrio assembly members registered in the
his absence, any member designated by the presiding officer to act list of barrio secretary is necessary.
as secretary shall discharge the duties of secretary of the barrio xx xx xx xx xx
assembly. “Sec. 10. Qualifications of voters and candidates. — Every
“For the purpose of conducting business and taking any official citizen of the Philippines, twenty-one years of age or over, able to
action in the barrio assembly, it is necessary that at least one-fifth read and write, who has been a resident of the barrio during the
of the members of the barrio assembly be present to constitute a six months immediately preceding the election, duly registered in
quorum. All actions shall require a majority vote of these present the list of voters kept by the barrio secretary, who is not otherwise
at the meeting there being a quorum. disqualified, may vote or be a candidate in the barrio elections.
“Sec. 5. Powers of the barrio assembly. — The powers of the “The following persons shall not be qualified to vote:
barrio assembly shall be as follows: “a. Any person who has been sentenced by final judgment
“a. To recommend to the barrio council the adoption of to suffer one year or more of imprisonment, within two
measures for the welfare of the barrio; years
“b. To decide on the holding of a plebiscite as provided for
256
255

after service of his sentence;
in Section 6 of this Act; “b. Any person who has violated his allegiance to the
“c. To act on budgetary and supplemental appropriations Republic of the Philippines; and
and special tax ordinances submitted for its approval by the “c. Insane or feeble-minded persons.”
barrio council; and
“d. To hear the annual report council concerning the All these barrio assembly members, who are at least 18
activities and finances of the assembly. years of age, although illiterate, may vote at the plebiscite
“Sec. 6. Plebiscite. — A plebiscite may be held in the barrio on the recall of any member of the barrio council or on a
when authorized by a majority vote of the members present in the budgetary, supplemental appropriation, or special
barrio assembly, there being a quorum, or when called by at least ordinances, a valid action on which requires “a majority
four members of the barrio council; Provided, however, That no vote of all of the barrio assembly members registered in the
plebiscite shall be held until after thirty days from its approval by list of the barrio secretary” (par. 5, Sec. 6, R.A. No. 3590).
either body, and such plebiscite has been given the widest Such plebiscite may be authorized by a majority vote of the
publicity in the barrio, stating the date, time, and place thereof, members present in the barrio assembly, there being a
the questions or issues to be decided, action to be taken by the quorum (par. 1, Sec. 6).

However, in the case of election of barrio officials, only If Congress in the exercise of its ordinary legislative
Filipino citizens, who are at least 21 years of age, able to power, not as a constituent assembly, can include 18-year
read and write, residents of the barrio during the 6 months olds as qualified electors for barrio plebiscites, this
immediately preceding the election and duly registered in prerogative can also be exercised by the Chief Executive as
the list of voters kept by the barrio secretary, not otherwise delegate of the Constitutional Convention in regard to the
disqualified, may vote (Sec. 10, R.A. No. 3590). plebiscite on the 1973 Constitution.
Paragraph 2 of Section 6 likewise authorizes open voting As heretofore stated, the statement by the President in
as it provides that “voting procedures may be made x x x Presidential Proclamation No. 1102 that the 1973
either in writing as in regular elections, and/or declaration Constitution was overwhelmingly ratified by the people
by the voters to the board of election tellers.” through the Citizens’ Assemblies in a referendum
That said paragraph 2 of Section 6 provides that “all conducted from January 10 to 15, 1973, should be accorded
duly registered barrio assembly members qualified to vote the presumption of correctness; because the same was
may vote in the plebiscite,” cannot sustain the position of based on the certification by the Secretary of the
petitioners in G.R. No. L-36165 that only those who are 21 Department of Local Government and Community
years of age and above and who possess all other Development who tabulated the results of the referendum
qualifications of a voter under Section 10 of R.A. No. 3590, all over the country. The accuracy of such tabulation and
can vote on the plebiscites referred to in Section 6; because certification by the said Department Secretary should
paragraph 3 of Section 6 does not expressly limit the voting likewise be presumed; because it was done in the regular
to those with the qualifications under Section 10 as said performance of his official functions aside from the fact
Section 6 does not distinguish between those who are 21 or that the act of the Department Secretary, as an alter ego of
above on the one hand and those 18 or above but below 21 the President, is presumptively the act of the President
on the other, and whether literate or not, to constitute a himself unless the latter disapproves or reprobates the
quorum of the barrio assembly. same (Villena vs. Secretary of Interior, 67 Phil. 451). The
Consequently, on questions submitted for plebiscite, all truth of the certification by the Department Secretary and
the registered members of the barrio assembly can vote as the Chief
long as
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Executive on the results of the referendum, is further
they are 18 years of age or above; and that only those who strengthened by the affidavits and certifications of
are 21 years of age or over and can read and write, can vote Governor Isidro Rodriguez of Rizal, Mayor Norberto S.
in the elections of barrio officials. Amoranto of Quezon City and Councilor Eduardo T.
Otherwise there was no sense in extending membership Parades of Quezon City.
in the barrio assembly to those who are at least 18 years of The procedure for the ratification of the 1937
age, whether literate or not. Republic Act No. 3590 could amendment on woman suffrage, the 1939 amendment to
simply have restated Section 4 of Republic Act No. 2370, the ordinance appended to the 1935 Constitution, the 1940
the old Barrio Charter, which provided that only those who amendments establishing the bicameral Congress, creating
are 21 and above can be members of the barrio assembly. the Commission on Elections and providing for two
Counsels Salonga and Tañada as well as all the consecutive terms for the President, and the 1947 parity
petitioners in L-36165 and two of the petitioners in L- amendment, cannot be invoked; because those amendments
36164 participated in the enactment of Republic Act No. were proposed by the National Assembly as expressly
3590 and should have known the intendment of Congress authorized by Article V of the 1935 Constitution respecting
in expanding the membership of the barrio assembly to woman suffrage and as a constituent assembly in all the
include all those 18 years of age and above, whether other amendments aforementioned and therefore as such,
literate or not. Congress had also the authority to prescribe the procedure
for the submission of the proposed amendments to the 1935 shown a letter for his signature during the conduct of the
Constitution. Citizens’ Assemblies, which he did not sign but which he
In the cases at bar, the 1973 Constitution was proposed referred to Vice-Governor Camerino (Annex 1-Rejoinder of
by an independent Constitutional Convention, which as the Sol. Gen. dated March 20, 1973).
heretofore discussed, has the equal power to prescribe the Mayor Pablo Cuneta likewise executed an affidavit
modality for the submission of the 1973 Constitution to the dated March 16, 1973 stating that on January 15, 1973, he
people for ratification or delegate the same to the President caused the preparation of a letter addressed to Secretary
of the Republic. Jose Roño of the Department of Local Government and
The certification of Governor Isidro Rodriguez of Rizal Community Development showing the results of the
and Mayor Norberto Amoranto could be utilized as the referendum in Pasay City; that on the same day, there
basis for the extrapolation of the Citizens’ Assemblies in all were still in any Citizens’ Assemblies holding referendum
the other provinces, cities and municipalities in all the in Pasay City, for which reason he did not send the
other provinces, cities and municipalities, and the aforesaid letter pending submittal of the other results from
affirmative votes in the Citizens’ Assemblies resulting from the said Citizens’ Assemblies; and that in the afternoon of
such extrapolation would still constitute a majority of the January 15, 1973, he indorsed the complete certificate of
total votes cast in favor of the 1973 Constitution. results on the referendum in Pasay City to the Office of the
As claimed by petitioners in L-36165, against the President (Annex 5-Rejoinder of Sol. Gen. dated March 20,
certification of the Department of Local Government and 1973).
Community Development that in Rizal there were Pablo F. Samonte, Assistant City Treasurer and Officer
1,126,000 Yes votes and 100,310 No votes, the certification in Charge of Pasay City also issued an affidavit dated
of Governor Isidro Rodriguez of Rizal, shows only 614,157 March 15, 1973 stating that a certain Atty. Delia Sutton of
Yes votes against 292,530 No votes. In Cavite province, the Salonga Law Office asked him for the results of the
there were referendum; that he
259 260
249,882 Yes votes against 12,269 No votes as disclosed in informed her that he had in his possession unsigned copies
Annex 1-A of respondents’ Compliance (the certification by of such results which may not be considered official as they
the Department of Local Government and Community had then no knowledge whether the original thereof had
Development), while the alleged certification of Governor been signed by the mayor; and that in spite of his advice
Lino Bocalan of Cavite shows only 126,163 Yes votes and that said unsigned copies were not official, she requested
5,577 No votes. If such a ratio is extended by way of him if she could give her the unofficial copies thereof,
extrapolation to the other provinces, cities and towns of the which he gave in good faith (Annex C-Rejoinder to the Sol.
country, the result would still be an overwhelming vote in Gen.).
favor of the 1973 Constitution. There were 118,010 Yes votes as against 5,588 No votes
The alleged certification by Governor Lino Bocalan of in the Citizens’ Assemblies of Quezon city (Annex V to
Cavite, is not true; because in his duly acknowledged Petitioners’ Notes in L-36165). The fact that a certain Mrs.
certification dated March 16, 1973, he states that since the Remedio Gutierrez, wife of alleged barrio treasurer
declaration of martial law and up to the present time, he Faustino Gutierrez, of barrio South Triangle, Quezon City,
has been under house arrest in his residence in Urdaneta states that “as far as we know, there has been no Citizens’
Village, Makati, Rizal; that he never participated in the Assembly meeting in our Area, particularly in January of
conduct of the Citizens’ Assemblies on January 10 15, 1973 this year,” does not necessarily mean that there was no
in the province of Cavite; that the acting chairman and such meeting in said barrio; for she may not have been
coordinator of the Citizens’ Assemblies at that time was notified thereof and as a result she was not able to attend
Vice-Governor Dominador Camerino; and that he was 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 reportedly from Mayor Pablo Cuneta dated January 15,
City. The barrio captain or the secretary of the barrio 1973 and marked “Rejoinder Annex Pasay City” addressed
assembly could have been a credible witness. to the Secretary of the Department of Local Government
Councilor Eduardo T. Paredes, chairman of the and Community Development; that both xerox copies of the
Secretariat of Quezon City Ratification and Coordinating unsigned letters contain figures showing the results of the
Council, certified on March 12, 1973 that as such chairman referendum of the Citizens’ Assemblies in those areas; and
he was in charge of the compilation and tabulation of the that the said letters were not received by her office and
results of the referendum among the Citizens’ Assemblies that her records do not show any such documents received
in Quezon City based on the results submitted to the by her office (Annex 2-Rejoinder of the Sol. Gen.).
Secretariat by the different Citizens’ Assemblies; but many Thus it would seem that petitioners in L-36165 have
results of the referendum were submitted direct to the attempted to deceive this Court by representing said
national agencies having to do with such activity and all of unsigned letters and/or certificates as duly signed and/or
which he has no knowledge, participation and control containing the complete returns of the voting in the
(Annex 4 Rejoinder of the Sol. Gen.). Citizens’ Assemblies.
Governor Isidro Rodriguez of Rizal issued a certification The observation We made with respect to the
dated March 16, 1973 that he prepared a letter to the discrepancy between the number of Yes votes and No votes
President dated January 15, 1973 informing him of the contained in the summary report of Governor Rodriguez of
results of the referendum in Rizal, in compliance with the Rizal as well as those contained in the alleged report of
instruction of the National Secretariat to submit such Governor Lino Bocalan of Cavite who repudiated the same
letter 2 or 3 days from January 10 to show the trend of as not having been signed by him for he was then under
voting in the Citizens’ Assemblies; that the figures 614,157 house arrest, on the one hand, and the number of votes
and 292,530 mentioned in said letter were based on the certified by the Department of Local Government and
certificates of results in his possession as of January 14, Community Development, on the other, to the effect that
1973, which results were made the even assuming the correctness of the figures
261 262
basis of the computation of the percentage of voting trend in insisted on by counsel for petitioners in L-36165, if they
the province; that his letter was never intended to show the were extrapolated and applied to the other provinces and
final or complete result in the referendum in the province as cities of the country, the Yes votes would still be
said referendum was then still going on from January 14- overwhelmingly greater than the No votes, applies equally
17, 1973, for which reason the said letter merely stated that to the alleged discrepancy between the figures contained in
it was only a “summary result”; and that after January 15, the certification of the Secretary of the Department of Local
1973, he sent to the National Secretariat all the certificates Government and Community Development and the figures
of results in 26 municipalities of Rizal for final tabulation furnished to counsel for petitioners in L-36165 concerning
(Annex 3-Rejoinder of the Sol. Gen.; italics supplied). the referendum in Camarines Sur, Bataan and Negros
Lydia M. Encarnacion, acting chief of the Records Occidental.
Section, Department of Local Government and Community The fact that the referendum in the municipality of
Development, issued a certificate dated March 16, 1973 Pasacao, Camarines Sur, shows that there were more votes
that she was shown xerox copies of unsigned letters in favor of the plebiscite to be held later than those against,
allegedly coming from Governor Lino Bocalan dated only serve to emphasize that there was freedom of voting
January 15, 1973 and marked “Rejoinder Annex Cavite” among the members of the Citizens’ Assemblies all over the
addressed to the President of the Philippines through the country during the referendum from January 10 to 15,
Secretary of the Department of Local Government and 1973 (Annex-6 Camarines Sur to Rejoinder of Petitioners in
Community Development and another unsigned letter L-36165). If there was no such freedom of choice, those who
wanted a plebiscite would not outnumber those against his letter dated March 13, 1973 that he does not “feel
holding such plebiscite. authorized by the proper authorities to confirm or deny the
The letter of Governor Felix O. Alfelor, Sr. dated data” concerning the number of participants, the Yes votes
January 1973 confirms the “strong manifestation of and No votes in the referendum on the new Constitution
approval of the new Constitution by almost 97% by the among the members of the Citizens’ Assemblies in
members of the Citizens’ Assemblies in Camarines Sur” Caloocan City, does not necessarily give rise to the
(Annex-Camarines Sur to Rejoinder of Petitioners in L- inference that Mayor Samson of Caloocan City is being
36165). intimidated, having been recently released from detention;
The report of Governor Efren B. Pascual of Bataan because in the same letter of Mayor Samson, he suggested
shows that the members of the Citizens’ Assemblies voted to counsel for petitioners in L-36165 that he can secure “the
overwhelmingly in favor of the new Constitution despite true and legitimate results of the referendum” from the
the fact that the second set of questions including the Office of the President (Annex Caloocan-B to Rejoinder of
question “Do you approve of the new Constitution?” was Petitioners in L-36165). Why did not learned and eminent
received only on January 10. Provincial Governor Pascual counsel heed such suggestion?
stated that “orderly conduct and favorable results of the Counsel for petitioners in L-36165, to sustain their
referendum” were due not only to the coordinated efforts position, relies heavily on the computation of the estimated
and cooperation of all teachers and government employees turnover in the Citizens’ Assemblies referendum on
in the area but also to the enthusiastic participation by the January 10 to 15, 1973 by a certain Professor Benjamin R.
people, showing “their preference and readiness to accept Salonga, of the Mapua Institute of Technology, ostensibly a
this new method of government to people consultation in close relative of former Senator Jovito R. Salonga, eminent
shaping up government policies.” (Annex-Bataan to counsel for petitioners in L-36165 (Annex M-as amended,
Rejoinder of Petitioners in L-36165). to Consolidated Rejoinder of petitioners in L-36165 to the
As heretofore stated, it is not necessary that voters Notes of Arguments and Memorandum of respondents).
ratifying Professor Salonga is not a qualified statistician, which all
the more impairs his
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VOL. 50, MARCH 31, 1973 263

the new Constitution are registered in the book of voters; it
is enough that they are electors voting on the new credibility. Director Tito A. Mijares of the Bureau of
Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, Census and Statistics, in his letter dated March 16, 1973
881 [1899]; 45 LRA 251). The fact that the number of address to the Secretary of the Department of Local
actual voters in the referendum in certain localities may Government and Community Development, refutes the
exceed the number of voters actually registered for the said computation of Professor Benjamin R. Salonga, thus:
1971 elections, can only mean that the excess represents
the qualified voters who are not yet registered including “1) I do not quite understand why (Problem 1) all qualified
those who are at least 15 years of age and the illiterates. registered voters and the 15-20-year-old youths (1972) will have
Although ex-convicts may have voted also in the to be estimated in order to give a 101.9% estimate of the
referendum, some of them might have been granted percentage participation of the ‘15-20 year old plus total number
absolute pardon or were sentenced to less than one year of qualified voters’ which does not deem to answer the problem.
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. This computation apparently fails to account for some 5.6 million
Election Code). At any rate, the ex-convicts constitute a persons ‘21 years old and over’ who were not registered voters
negligible number, discounting which would not tilt the (COMELEC), but who might be qualified to participate at the
scale in favor of the negative votes. Citizen’s Assembly.
Similarly, the fact that Mayor Marcial F. Samson of “2) The official population projection of this office (medium
Caloocan City, who belongs to the Liberal Party, stated in assumption) for ‘15 year olds and over’ as of January 1, 1973 is

22.506 million. If total number of participants at the Citizens’ electors who were not registered before the November 8,
Assembly Referendum held on January 10-15, 1973 was 16.702 1971 elections as well as illiterates who are 15 years old
million, participation rate will therefore be the ratio of the latter and above but below 21.
figure to the former which gives 74.2%. Moreover, in the last Presidential election in November,
“3) I cannot also understand c-2 ‘Solution to Problem 11.’ The 1969, We found that the incumbent President obtained
‘difference or implied number of 15-20 year olds’ of 5,039,906 over 5,000,000 votes as against about 3,000,000 votes for
would represent really not only all 15-year olds and over who his rival LP Senator Sergio Osmeña, Jr., garnering a
participated at the Citizens’ Assembly but might not have been majority of from about 896,498 to 1,436,118 (Osmeña, Jr.
registered voters at the time, assuming that all the 11,661,909 vs. Marcos, Presidential Election Contest No. 3, Jan. 8,
registered voted at Citizens’ Assembly. Hence, the ‘estimate 1973).
percentage participation of 15-20 years olds’ of 105.6% does not The petitioners in all the cases at bar cannot state with
seem to provide any meaningful information. justification that those who voted for the incumbent
“To obtain the participation rate of ‘15-20 years old’ one must President in 1969 did not vote in favor of the 1973
divide the number in this age group, which was estimated to be Constitution during the referendum from January 10 to 15,
4.721 million as of January 1, 1973 by the population of ‘15 years 1973. It should also be stressed that many of the partisans
old and over’ for the same period which was estimated to be of the President in the 1969 Presidential elections, have
22.506 million, giving 21.0%. several members in their families and relatives who are
“In Problem III, it should be observed that registered voters qualified to participate in the referendum because they are
also include names of voters who are already dead. It cannot 15 years or above including illiterates, which fact should
therefore be assumed that all of them participated at the Citizens’ necessarily augment the number of votes who voted for the
Assembly. It can therefore be inferred that ‘a total number of 1973 Constitution.
persons 15 and over unqualified/disqualified to vote’ will be more (6) It is also urged that martial law being the rule of
than 10,548,197 and hence the ‘difference or implied number of force, is
registered voters that participated’ will be less than 6,153,618.
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VOL. 50, MARCH 31, 1973 265
necessarily inconsistent with freedom of choice, because the

people fear to disagree with the President and Commander-
“I have reservations on whether an ‘appropriate number of
qualified voters that supposedly voted’ could be meaningfully
in-Chief of the Armed Forces of the Philippines and
estimated.
therefore cannot voice views opposite to or critical of the
“5) The last remark will therefore make the ratio (a) [Solution
position of the President on the 1973 Constitution and on
the mode of its ratification.
to Problem] more than 1.71 and that for (b), accordingly, will also
It is also claimed or urged that there can be no free
be less than 36.8%.” (Annex F Rejoinder).
choice during martial law which inevitably generates fear
From the foregoing analysis of the Director of Census in the individual. Even without martial law, the penal, civil
and Statistics as of January 21, 1973, the official or administrative sanction provided for the violation of
population projection for 15-year olds and over is ordinarily engenders fear in the individual which
22,506,000. If 16,702,000 voted in the referendum, the persuades the individual to comply with or obey the law.
participation ratio would be 74.2% of 22,506,000. But before martial law was proclaimed, many individuals
If the registered electors as of the election of November fear such sanctions of the law because of lack of effective
8, 1971 numbered 11,661,909, the difference between equal enforcement or implementation thereof — in brief,
16,702,000 who participated in the referendum and the compartmentalized justice and extraneous pressures and
registered electors of 11,661,909 for the November 8, 1971 influences frustrated the firm and just enforcement of the
elections, is 5,040,091, which may include not only the 15- laws. The fear that is generated by martial law is merely
year olds and above but below 21 but also the qualified the fear of immediate execution and swift enforcement of
the law and therefore immediate infliction of the characterized by fear among the members of the National
punishment or sanction prescribed by the law whenever it Press Club.
is transgressed during the period of martial law. This is not Moreover, petitioners would not be willing to affirm that
the fear that affects the voters’ freedom of choice or all the members of the citizenry of this country are against
freedom to vote for or against the 1973 Constitution. Those the new Constitution. They will not deny that there are
who cringe in fear are the criminals or the law violators. those who favor the same, even among the 400,000
Surely, petitioners do not come under such category. teachers among whom officers of the Department of
(7) Petitioners likewise claim that open voting by viva Education campaigned for the ratification of the new
voce or raising of hands violates the secrecy of the ballot as Constitution.
by the election laws. But the 1935 Constitution does not Not one of the petitioners can say that the common man
require secret voting. We search in vain for such guarantee — farmer, laborer, fisherman, lowly employee, jeepney
or prescription in said organic law. The Commission on driver, taxi driver, bus driver, pedestrian, salesman, or
Elections under the 1940 Amendment, embodied as Article salesgirl — does not want the new Constitution, or the
X is merely mandated to insure “free, orderly and honest reforms provided for therein.
election.” Congress, under its plenary law-making (8) Petitioners likewise claim that there was no
authority, could have validly prescribed in the election law sufficient publicity given to the new Constitution. This is
open voting in the election of public officers, without quite inaccurate; because even before the election in
trenching upon the Constitution. Any objection to such a November, 1970 of delegates to the Constitutional
statute concerns its wisdom or propriety, not its legality or Convention, the proposed reforms were already discussed
constitutionality. Secret balloting was demanded by in various forums and through the press as well as other
partisan strife in elections for elective officials. media of information. Then after the
Partisanship based on party or personal loyalties
268
267

Constitutional Convention convened in June, 1971, specific
does not generally obtain in a plebiscite on proposed reforms advanced by the delegates were discussed both in
constitutional amendments or on a new Constitution. We committee hearings as well as in the tri-media — the press,
have seen even before and during martial law that voting radio and television. Printed materials on the proposed
in meetings of government agencies or private reforms were circulated by their proponents. From June,
organizations is usually done openly. This is specially true 1971 to November 29, 1972, reforms were openly discussed
in sessions of Congress, provincial boards, city councils, and debated except for a few days after the proclamation of
municipal boards and barrio councils when voting on martial law on September 21, 1972. From the time the
national or local issues, not on personalities. Constitutional Convention reconvened in October, 1972
Then again, open voting was not a universal until January 7, 1973, the provisions of the new
phenomenon in the Citizens’ Assemblies. It might have Constitution were debated and discussed in forums
been true in certain areas, but that does not necessarily sponsored by private organizations universities and
mean that it was done throughout the country. debated over the radio and on television. The Philippines is
The recent example of an open voting is the last election a literate country, second only to Japan in the Far East,
on March 3, 1973 of the National Press Club officers who and more literate perhaps than many of mid-western and
were elected by acclamation presided over by its former southern states of the American Union and Spain. Many
president, petitioner Eduardo Monteclaro in L-36236 (see residents in about 1,500 towns and 33,000 barrios of the
Bulletin Today, p. 8, March 3, 1973 issue). There can be no country have radios. Even the illiterates listened to radio
more hardboiled group of persons than newspapermen, who broadcasts on and discussed the provisions of the 1973
cannot say that voting among them by acclamation was Constitution.

As reported by the eminent and widely read columnist, of martial law on September 21, 1972. This is the reason
Teodoro Valencia in his column in Bulletin Today, March 4, why the Constitutional Convention, after spending close to
1973 issue, “Otto Lang, Hollywood producer director (Tora, P30 million during the period from June 1, 1971 to
Tora, Tora) went around the country doing a 30-minute November 29, 1972, found it expedient to accelerate their
documentary on the Philippines for American television proceedings in November, 1972 because all views that
stated that what impressed him most in his travel could possibly be said on the proposed provisions of the
throughout the country was the general acceptance of the 1973 Constitution were already expressed and circulated.
New Society by the people which he saw in his 6-week The 1973 Constitution may contain some unwise
travel from Aparri to Jolo.” provisions. But this objection to such unwise or vague
The report of Frank Valeo (Bulletin Today, March 3 and provisions, as heretofore stated, refers to the wisdom of the
4, 1973 and Daily Express, March 3, and Sunday Express, aforesaid provisions, which issue is not for this Court to
March 4), Secretary of the United States Senate, who decide; otherwise We will be substituting Our judgment for
conducted a personal survey of the country as delegate of the judgment of the Constitutional Convention and in effect
Senator Mike Mansfield, Chairman, Committee on US- acting as a constituent assembly.
Philippine relations, states: VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
“Martial law has paved the way for a re-ordering of the basic LEGISLATIVE POWERS DURING MARTIAL LAW.
social structure of the Philippines. President Marcos has been The position of the respondent public officers that under
prompt and sure-footed in using the power of presidential decree
under martial law for this purpose. He has zeroed in on areas 270
which have been widely recognized as prime sources of the nation’s
269 270 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 269
Javellana vs. The Executive Secretary martial law, the President as Commander-in-Chief is
vested with legislative powers, is sustained by the ruling in
difficulties — land tenancy, official corruption, tax evasion and the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171,
abuse of oligarchic economic power. Clearly, he knows the targets. 177-178) which reiterates the 1945 case of Yamashita vs.
What is not yet certain is how accurate have been his shots. Styer (75 Phil. 563, 571-72). The trial of General Kuroda
Nevertheless, there is marked public support for his leadership was after the surrender of Japan on October 2, 1945 (23
and tangible alternatives have not been forthcoming. That would Encyc. Brit. 1969 ed., p. 799) and hence no more martial
suggest that he may not be striking too far from the mark. law in the Philippines.
“The United States business community in Manila seems to
have been re-assured by recent developments xx. (Emphasis
“x x x Consequently, in the promulgation and enforcement of
supplied.)
Executive Order No. 68, the President of the Philippines has
Petitioners cannot safely assume that all the peaceful acted in conformity with the generally accepted principles and
citizens of the country, who constitute the majority of the policies of international law which are part of our Constitution.
population, do not like the reforms stipulated in the new “The promulgation of said executive order is an exercise by the
Constitution, as well as the decrees, orders and circulars President of his powers as Commander in Chief of all our armed
issued to implement the same. It should be recalled, as forces, as upheld by this Court in the case of Yamashita vs.
hereinbefore stated, that all these reforms were the subject Styver (L-129, 42 Off. Gaz., 664) when we said —
of discussion both in the committee hearings and on the “ ‘War is not ended simply because hostilities have
floor of the Constitutional Convention, as well as in public ceased. After cessation of armed hostilities, incidents of war
forums sponsored by concerned citizens or civic may remain pending which should be disposed of as in time
organizations at which Con-Con delegates as well as other of war. ‘An important incident to a conduct of war is the
knowledgeable personages expounded their views thereon adoption measures by the military command not only to
and in all the media of information before the proclamation repel and defeat the enemies but to seize and subject to

disciplinary measures those enemies who in their attempt to “Finally, this strong government, which in some instances
thwart or impede our military effort have violated the law of might become an outright dictatorship, can have no other purposes
war.’ (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, than the preservation of the independence of the state, the
the power to create a military commission for the trial and maintenance of the existing constitutional order, and the defense of
punishment of war criminals is an aspect of waging war. the political and social liberties of the people. It is important to
And, in the language of a writer, a military commission ‘has recognize the true and limited ends of any practical application of
jurisdiction so long as the technical state of war continues. the principle of constitutional dictatorship. Perhaps the matter
This includes the period of an armistice, or military may be most clearly stated in this way: the government of a free
occupation, up to the effective date of treaty of peace, and state is proceeding on its way and meeting the usual problems of
may extend beyond, by treaty agreement.’ (Cowles, Trial of peace and normal times within the limiting framework of its
War Criminals by Military Tribunals, American Bar established constitutional order. The functions of government are
Association Journal, June, 1944).’ parceled out among a number of mutually independent offices and
“Consequently, the President as Commander-in-Chief is fully institutions; the power to exercise those functions is
empowered to consummate this unfinished aspect of war, namely circumscribed by well-established laws, customs, and
the trial and punishment of war criminals, through the issuance constitutional prescriptions; and the people for whom this
and enforcement of Executive Order No. 68.” (83 Phil. 177-178; government was instituted are in possession of a lengthy
italics supplied). catalogue of economic, political, and social rights which their
leaders recognize as inherent and inalienable. A severe crisis
Chief Justice Stone of the United States Supreme Court arises — the country is invaded by a hostile power, or a dissident
likewise appears to subscribe to this view, when, in his segment of the citizenry revolts, or the impact of a world-wide
271
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
VOL. 50, MARCH 31, 1973 271
272

concurring opinion in Duncan vs. Kahanamoku (327 U.S.
304 [1946]), he defined martial law as “the exercise of the Javellana vs. The Executive Secretary
power which resides in the executive branch of the
government to preserve order and insure the public safety in arbitrarily and even dictatorially in the swift adoption of measures
times of emergency, when other branches of the government designed to save the state and its people from the destructive effects
are unable to function, or their functioning would itself of the particular crisis. And the narrow duty to be pursued by this
threaten the public safety.” (Italics supplied). There is an strong government, this constitutional dictatorship? Simply this
implied recognition in the aforesaid definition of martial and nothing more: to end the crisis and restore normal times. The
law that even in places where the courts can function, such government assumes no power and abridges no right unless
operation of the courts may be affected by martial law plainly indispensable to that end; it extends no further in time
should their “functioning x x x threaten the public safety.” It than the attainment of that end; and it makes no alteration in the
is possible that the courts, in asserting their authority to political, social and economic structure of the nation which cannot
pass upon questions which may adversely affect the be eradicated with the restoration of normal times. In short, the
conduct of the punitive campaign against rebels, aim of constitutional dictatorship is the complete restoration of
secessionists, dissidents as well as subversives, martial law the status quo ante bellum. This historical fact does not comport
may restrict such judicial function until the danger to the with philosophical theory, that there never has been a perfect
security of the state and of the people shall have been constitutional dictatorship, is an assertion that can be made
decimated. without fear of contradiction. But this is true of all institutions of
The foregoing view appears to be shared by Rossiter government, and the principle of constitutional dictatorship
when he stated: remains eternally valid no matter how often and seriously it may
have been violated in practice. (Constitutional Dictatorship, 1948
ed., by Clinton L. Rossiter, p. 7; italics supplied.)

Finally, Rossiter expressly recognizes that during Commander in Chief, upon his proclamation of martial law,
martial law, the Chief Executive exercises legislative is justified because, as he professes, it is directed towards
power, whether of temporary or permanent character, the institution of radical reforms essential to the
thus: elimination of the causes of rebellious, insurgent or
subversive conspiracies and the consequent dismantling of
“The measures adopted in the prosecution of a constitutional the rebellious, insurgent or subversive apparatus.
dictatorship should never be permanent in character or effect. Hence, the issuance of Presidential Decree Nos. 86 and
Emergency powers are strictly conditioned by their purpose and 86-A as well as Proclamation No. 1102 is indispensable to
this purpose is the restoration of normal conditions. The actions the effectuation of the reforms within the shortest possible
directed to this end should therefore be provisional. For example, time to hasten the restoration of normalcy.
measures of a legislative nature which work a lasting change in
the structure of the state or constitute permanent derogations “Must the government be too strong for the liberties of the
from existing law should not be adopted under an emergency people; or must it be too weak to maintain its existence?” That
enabling act, at least not without the positively registered approval was the dilemma that vexed President Lincoln during the
of the legislature. Permanent laws, whether adopted in regular or American Civil War, when without express authority in the
irregular times, are for parliaments to enact. By this same token, Constitution and the laws of the United States, he suspended one
the decisions and sentences of extraordinary courts should be basic human freedom — the privilege of the writ of habeas
reviewed by the regular courts after the termination of the crisis. corpus — in order to preserve with permanence the American
“But what if a radical act of permanent character, one working Union, the Federal Constitution of the United States and all the
lasting changes in the political and social fabric, is civil liberties of the American people. This is the same dilemma
indispensable to the successful prosecution of the particular that presently confronts the Chief Executive of the Republic of the
constitutional dictatorship? The only answer can be: it must be Philippines, who, more than the Courts and Congress, must, by
resolutely taken and openly acknowledged. President Lincoln express constitutional mandate, secure the safety of our Republic
found it necessary to proceed to the revolutionary step of and the rights as well as lives of the
emancipation in aid of his conservative purpose of preserving the
274
Union; as a constitutional
273
VOL. 50, MARCH 31, 1973 273
Javellana vs. The Executive Secretary people against open rebellion, insidious subversion secession. The
Chief Executive announced repeatedly that in choosing to
dictator he had a moral right to take this radical action. proclaim martial law, the power expressly vested in him by the
Nevertheless, it is imperative that any action with such lasting 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to
effects should eventually receive the positive approval of the people insure our national and individual survival in peace and freedom,
or of their representatives in the legislature. (p. 303, italics he is in effect waging a peaceful, democratic revolution from the
supplied). center against the violent revolution and subversion being
mounted by the economic oligarchs of the extreme right, who
From the foregoing citations, under martial law resist reforms to maintain their economic hegemony, and the
occasioned by severe crisis generated by revolution, communist rebels a Maoist oriented secessionists of the extreme
insurrection or economic depression or dislocation, the left who demand swift institution of reforms. In the exercise of his
government exercises more powers and respects fewer constitutional and statutory powers, to save the state and to
rights in order “to end the crisis and restore normal times.” protect the citizenry against actual and threatened assaults from
The government can assume additional powers insurgents, secessionists and subversives, doctrinaire concepts
indispensable to the attainment of that end — the complete and principles, no matter how revered they may be by
restoration of peace. In our particular case, eradication of jurisprudence and time, should not be regarded as peremptory
the causes that incited rebellion and subversion as commands; otherwise the dead hand of the past will regulate and
secession, is the sine qua non to the complete restoration of control the security and happiness of the living present. A
normalcy. Exercise of legislative power by the President as contrary view would be to deny the self-evident proposition that
constitutions and laws are mere instruments for the well-being, being. It was trial and error then as it is still now. Political
peace, security and prosperity of the country and its citizenry. The philosophies and constitutional concepts, forms and kinds
law as a means of social control is not static but dynamic. of government, had been adopted, overturned, discarded,
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither re-adopted or modified to suit the needs of a given society
a printed finality nor the imprisonment of the past, but the at a particular given epoch. This is true of constitutions
enfolding of the future. In the vein of Mr. Justice Holmes, the and laws because they are not “the infallible instruments of
meaning of the words of the Constitution is not to be determined a manifest destiny.” No matter how we want the law to be
by merely opening a dictionary. Its terms must be construed in stable, it cannot stand still. As Mr. Justice Holmes aptly
the context of the realities in the life of a nation it is intended to observed, every “constitution is an experiment as all life is
serve. Because experience may teach one generation to doubt the an experiment,” (Abrahms vs. U.S., 250 US 616, 631) for
validity and efficacy of the concepts embodied in the existing “the life of the law is not logic, but experience.” In the
Constitution and persuade another generation to abandon them pontifical tones of Mr. Justice Benjamin Nathan Cardozo,
entirely, heed should be paid to the wise counsel of some learned “so long as society is inconstant, there can be no constancy
jurists that in the resolution of constitutional questions — like in law,” and “there will be change whether we will it or
those posed before Us — the blending of idealism and practical not.” As Justice Jose P. Laurel was wont to say, “We
wisdom or progressive legal realism should be applied (see cannot, Canute-like, command the waves of progress to
Alexander M. Bickel, the Supreme Court and the Idea of Progress, halt.”
1970 ed., pp. 19-21). To Justice Frankfurter, law is “a vital agency Thus, political scientists and jurists no longer exalt with
for human betterment” and constitutional law “is applied politics vehemence a “government that governs least.” Adherents
using the word in its noble sense.” (Frankfurter, Law and Politics, there are to the poetic dictum of Alexander Pope: “For
1939 ed., pp. 3 & 6; italics supplied). Justice Brandeis forms
275 276
gave utterance to the truth that “Our Constitution is not a

straight jacket. It is a living organism. As such, it is capable of
of government let fools contest; whatever is best
growth — or expansion and adaptation to new conditions. Growth
administered is best.” (Poems of Pope, 1931 Cambridge ed.,
implies changes, political, economic and social.” (Brandeis Papers,
p. 750). In between, the shades vary from direct democracy,
Harvard Law School; emphasis supplied). Harvard Professor
representative democracy, welfare states, socialist
democracy, mitigated socialism, to outright communism
Thomas Reed Powell emphasizes “practical wisdom,” for “the logic
which degenerated in some countries into totalitarianism
of constitutional law is the common sense of the Supreme Court.”
(Powell, the Validity of State Legislation, under the Webb-Kenyon
or authoritarianism.
Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in
Hence, even the scholar, who advances academic
Bickel’s Opus, supra; italics supplied).
opinions unrelated to factual situations in the seclusion of
his ivory tower, must perforce submit to the inexorable law
The eternal paradox in this finite world of mortal and of change in his views, concepts, methods and techniques
fallible men is that nothing is permanent except change. when brought into the actual arena of conflict as a public
Living organisms as well as man-made institutions are not functionary — face to face with the practical problems of
immutable. Civilized men organize themselves into a State state, government and public administration. And so it is
only for the purpose of serving their supreme interest — that some learned jurists, in the resolution of constitutional
their welfare. To achieve such end, they created an agency issues that immediately affect the lives, liberties and
known as the government. From the savage era thru fortunes of the citizens and the nation, recommend the
ancient times, the Middle Ages, the Dark Ages and the blending of idealism with practical wisdom which legal
Renaissance to this era of sophisticated electronics and thinkers prefer to identify as progressive legal realism. The
nuclear weaponry, states and governments have mutated national leader, who wields the powers of government,
in their search for the magic instrument for their well- must and has to innovate if he must govern effectively to
serve the supreme interests of the people. This is especially Constitution and Congress did not then expressly vest in
true in times of great crises where the need for a leader him. No one can deny that the successful defense and
with vision, imagination, capacity for decision and preservation of the territorial integrity of the United States
courageous action is greater, to preserve the unity of was due in part, if not to a great extent, to the
people, to promote their well-being, and to insure the safety proclamation of martial law over the territory of Hawaii —
and stability of the Republic. When the methods of main bastion of the outer periphery or the outpost of the
rebellion and subversion have become covert, subtle and American defense perimeter in the Pacific — which
insidious, there should be a recognition of the protected the United States mainland not only from actual
corresponding authority on the part of the Commander-in- invasion but also from aerial or naval bombardment by the
Chief of the Armed Forces to utilize all the available enemy. Parenthetically, the impartial observer cannot
techniques to suppress the peril to the security of the accurately conclude that the American Supreme Court
government and the State. acted with courage in its decision in the cases of Ex parte
Over a century and a half ago, Thomas Jefferson, one of Milligan and Duncan vs. Kahanamoku (filed on May 10,
the founding fathers of the American Constitution and 1865 argued on March 5 to 13, 1866, decided on April 3,
former President of the United States, who personifies the 1866, and opinion delivered on December 17, 1866) after
progressive liberal, spoke the truth when he said that some the lifting of the proclamation suspending the privilege of
men “ascribe men of the preceding age a wisdom more than the writ of habeas corpus, long after the Civil War and the
human, and suppose what they did to be beyond Second World ended respectively on April 9 or 26, 18-65
amendment. xx xx But I know also, that laws and (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742)
institutions must go hand in hand with the progress of the and on September 2, 1945 (Vol. 23, Encyclopedia
human mind. As that becomes more developed, more Britannica, 1969 ed., p. 799). Was the delay on the part of
enlightened, as new discoveries are made, new the American Supreme Court in deciding these cases
against the position of the United States President — in
277
suspending the privilege of the writ of habeas corpus in
278
VOL. 50, MARCH 31, 1973 277
truths disclosed and manners and opinions change, with Javellana vs. The Executive Secretary
the change of circumstances, institutions must also
advance, and keep pace with the times.” (Vol. 12, one case and approving the proclamation of martial law in
Encyclopedia Britanica, 1969 ed., p. 989). the other — deliberate as an act of judicial statesmanship
The wisdom of the decision of the Chief Executive can and recognition on their part that an adverse court ruling
only be judged in the perspective of history. It cannot be during the period of such a grave crisis might jeopardize
adequately and fairly appraised within the present the survival of the Federal Republic of the United States in
ambience, charged as it is with so much tension and its life-and-death struggle against an organized and well
emotion, if not partisan passion. The analytical, objective armed rebellion within its own borders and against a
historians will write the final verdict in the same way that formidable enemy from without its territorial confines
they pronounced judgment on President Abraham Lincoln during the last global armageddon?
who suspended the privilege of the writ of habeas corpus VIII
without any constitutional or statutory authority therefor DOCTRINE OF SEPARATION OF POWERS
and of President Franklin Delano Roosevelt who approved PRECLUDES MANDAMUS AGAINST SENATORS.
the proclamation of martial law in 1941 by the governor of In G.R. No. L-36165, mandamus will not lie to compel
Hawaii throughout the Hawaiian territory. President respondents Gil Puyat and Jose Roy to convene the Senate
Lincoln not only emancipated the Negro slaves in America, of the Philippines even on the assumption that the 1935
but also saved the Federal Republic of the United States Constitution still subsists; because pursuant to the doctrine
from disintegration by his suspension of the privilege of the of separation of powers under the 1935 Constitution, the
writ of habeas corpus, which power the American processes of this Court cannot legally reach a coordinate
branch of the government or its head. This is a problem merely to its presiding officers. The fact that the doors of
that is addressed to the Senate itself for resolution; for it is Congress are padlocked, will not prevent the senators —
purely an internal problem of the Senate. If a majority of especially the petitioners in L-36165 — if they are minded
the senators can convene, they can elect a new Senate to do so, from meeting elsewhere — at the Sunken
President and a new Senate President Pro Tempore. But if Gardens, at the Luneta Independence Grandstand, in any
they have no quorum, those present can order the arrest of of the big hotels or theaters, in their own houses, or at the
the absent members (Sec. 10[2], Art. VI, 1935 Araneta Coliseum, which is owned by the father-in-law of
Constitution). If this fails, then there is no remedy except petitioner Gerardo Roxas in L-36165.
an appeal to the people. The dictum ubi jus, ubi remedium, However, a session by the Senate alone would be purely
is not absolute and certainly does not justify the invocation an exercise in futility, for it cannot validly meet without
of the power of this Court to compel action on the part of a the lower House (Sec. 10[5], Art. VI, 1935 Constitution).
co-equal body or its leadership. This was emphasized with Hence, this petition by five former senators for
sufficient clarity by this Court in the 1949 case of Avelino mandamus in L-36165 is useless.
vs. Cuenco (83 Phil. 17, 22, 24), with which the And as pointed out by former Senator Arturo Tolentino,
distinguished counsels for the petitioners in L-36164 and counsel for respondents Puyat and Roy, mandamus will lie
L-36165 are familiar. We stress that the doctrine of only if there is a law imposing on the respondents the duty
separation of powers and the political nature of the to convene the body. The rule imposing such a duty invoked
controversy such as this, preclude the interposition of the by petitioners in L-36165 is purely an internal rule of the
Judiciary to nullify an act of a coordinate body or to Senate; it is not a law because it is not enacted by both
command performance by the head of such a co-ordinate Houses and approved by the President.
body of his functions.
280
Mystifying is the posture taken by counsels for
petitioners
279
VOL. 50, MARCH 31, 1973 279

Javellana vs. The Executive Secretary The Constitutional provision on the convening of
Congress, is addressed to the individual members of the
in referring to the political question doctrine — almost in legislative body (Sec. 9, Art. VI of 1935 Constitution).
mockery — as a magic formula which should be IX
disregarded by this Court, forgetting that this magic TO NULLIFY PROCLAMATION NO. 1102 AND 1973
formula constitutes an essential skein in the constitutional CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
fabric of our government, which, together with other basic SUPREME COURT.
constitutional precepts, conserves the unity of our people, The petitioners in L-36164 and L-36236 specifically pray
strengthens the structure of the government and assures for a declaration that the alleged ratification of the 1973
the continued stability of the country against the forces of Constitution is null and void and that the said 1973
division, if not of anarchy. Constitution be declared unenforceable and inoperative.
Moreover, if they have a quorum, the senators can meet As heretofore stated, Proclamation No. 1102 is an
anywhere. Validity of the acts of the Senate does not enactment of the President as Commander-in-Chief during
depend on the place of session; for the Constitution does martial law as directly delegated to him by Section 10(2) of
not designate the place of such a meeting. Section 9 of Article VII of the 1935 Constitution.
Article VI imposes upon Congress to convene in regular A declaration that the 1973 Constitution is
session every year on the 4th Monday of January, unless a unenforceable and inoperative is practically deciding that
different date is fixed by law, or on special session called by the same is unconstitutional. The proposed Constitution is
the President. As former Senator Arturo Tolentino, counsel an act of the Constitutional Convention, which is co-equal
for respondents Puyat and Roy in L-36165, stated, the duty and coordinate with as well as independent of either
to convene is addressed to all members of Congress, not Congress or the Chief Executive. Hence, its final act, the
1973 Constitution, must have the same category at the defend and preserve the State. In the language of Mr.
very least as the act of Congress itself. Justice Holmes — often invoked by herein petitioners —
Consequently, the required vote to nullify Proclamation “when it comes to a decision involving its (state life, the
No. 1102 and the 1973 Constitution should be eight (8) ordinary rights of individuals must yield to what he (the
under Section 10 of Article VIII of the 1935 Constitution in President) deems the necessities of the moment. Public
relation to Section 9 of the Judiciary Act or Republic Act danger warrants the substitution of executive process for
No. 296, as amended, or should be ten (10) under Section judicial process. (See Keely vs. Sanders, 99 U.S. 441, 446,
2(2) of Article X of the 1973 Constitution. Should the 25 L ed. 327, 328). This was admitted with regard to killing
required vote of eight (8) or ten (10), as the case may be, for men in the actual clash of arms. And we think it is obvious,
the declaration of invalidity or unconstitutionality be not although it was disputed, that the same is true of
achieved, the 1973 Constitution must be deemed to be temporary detention to prevent apprehended harm.”
valid, in force and operative. (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be
281
the
282
VOL. 50, MARCH 31, 1973 281
X
ARTICLE OF FAITH rhetoric of freedom with order and security for all, that
WE yield to no man as devotees of human rights and should be the shibboleth; for freedom cannot be enjoyed in
civil liberties. Like Thomas Jefferson, We swear “eternal an environment of disorder and anarchy.
hostility towards any form of tyranny over the mind of The incumbent Chief Executive who was trying to gain
man” as well as towards bigotry and intolerance, which are the support for his reform program long before September
anathema to a free spirit. But human rights and civil 21, 1972, realized almost too late that he was being
liberties under a democratic or republican state are never deceived by his partymates as well as by the opposition,
absolute and never immune to restrictions essential to the who promised him cooperation, which promises were either
common weal. A civilized society cannot long endure offered as a bargaining leverage to secure concessions from
without peace and order, the maintenance of which is the him or to delay the institution of the needed reforms. The
primary function of the government. Neither can civilized people have been victimized by such bargaining and dilly-
society survive without the natural right to defend itself dallying. To avert a terrifying blood bath and the
against all dangers that may destroy its life, whether in the breakdown of the Republic, the incumbent President
form of invasion from without or rebellion and subversion proclaimed martial law to save the Republic from being
from within. This is the first law of nature and ranks overrun by communists, secessionists and rebels by
second to none in the hierarchy of all values, whether effecting the desired reforms in order to eradicate the evils
human or governmental. Every citizen, who prides himself that plague our society, which evils have been employed by
in being a member or a civilized society under an the communists, the rebels and secessionists to exhort the
established government, impliedly submits to certain citizenry to rise against the government. By eliminating
constraints on his freedom for the general welfare and the the evils, the enemies of the Republic will be decimated.
preservation of the State itself, even as he reserves to How many of the petitioners and their counsels have been
himself certain rights which constitute limitations on the utilizing the rebels, secessionists and communists for their
powers of government. But when there is an inevitable own personal or political purposes and how many of them
clash between an exertion of governmental authority and are being used in turn by the aforesaid enemies of the State
the assertion of individual freedom, the exercise of which for their own purposes?
freedom imperils the State and the civilized society to If the petitioners are sincere in their expression of
which the individual belongs, there can be no alternative concern for the greater mass of the populace, more than for
but to submit to the superior right of the government to their own selves, they should be willing to give the
incumbent Chief Executive a chance to implement the 1. That the Constitutional Convention was not a free
desired reforms. The incumbent President assured the forum for the making of a Constitution after the
nation that he will govern within the framework of the declaration of Martial Law on September 21, 1972.
Constitution and if at any time, before normalcy is 2. The Convention was not empowered to incorporate
restored, the people thru their Citizens’ Assemblies, cease certain provisions in the 1972 Constitution because they
to believe in his leadership, he will step down voluntarily are highly unwise and objectionable and the people were
from the Presidency. But if, as apprehended by the not sufficiently informed about them.
petitioners, he abuses and brutalizes the people, then to 3. The President had no authority to create and
the battlements we must go to man the ramparts against empower the Citizens’ Assemblies to ratify the new
tyranny. This, it is believed, he knows only too well; Constitution at the
because he is aware that he who rides the tiger will
284
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 284 SUPREME COURT REPORTS ANNOTATED
tyrants and were burned at stake or
283
referendum conducted in connection therewith, as said
assemblies were merely for consultative purposes, and
VOL. 50, MARCH 31, 1973 283
4. The provisions of Article XV of the 1935 Constitution
Javellana vs. The Executive Secretary prescribing the manner of amending the same were not
duly observed.
beheaded or hanged or guillotined by the very people whom The petitions were not given due course immediately but
they at first championed and later deceived. The most were referred to the Solicitor General as counsel for the
bloody of such mass executions by the wrath of a wronged respondents for comment, with three members of the
people, was the decapitation by guillotine of about 15,000 Court, including the undersigned, voting to dismiss them
Frenchmen including the leaders of the French revolution, outright. The comments were considered motions to
like Robespierre, Danton, Desmoulins and Marat. He is dismiss which were set for hearing and extensively argued.
fully cognizant of the lessons of history. Thereafter both parties submitted their notes and
HENCE, THE DISMISSAL OF THESE FIVE CASES IS memoranda on their oral arguments.
JUSTIFIED. I.
The issues raised for determination, on which the
ESGUERRA, J.: For Dismissal of Petitions resolution of the Motion to Dismiss hinges, are as follows:
These petitions seek to stop and prohibit the 1. Is the question presented political and, hence, beyond
respondents Executive Officers from implementing the the competence of this Court to decide, or is it justiciable
Constitution signed on November 30, 1972; in L-36165, to and fit for judicial determination?
compel respondents Gil Puyat and Jose J. Roy, President 2. Was the new Constitution of November 30, 1972,
and President Pro-Tempore, respectively, of the Senate ratified in accordance with the amending process
under the 1935 Constitution, to convene the Senate in prescribed by Article XV of the 1935 Constitution?
regular session which should have started on January 22, 3. Has the new Constitution been accepted and
1973; to nullify Proclamation No. 1102 of the President, acquiesced in by the Filipino people?
issued on January 17, 1973, which declared the ratification 4. Is the new Constitution actually in force and effect?
of the Constitution on November 30, 1972, by the Filipino 5. If the answers to questions Nos. 3 and 4 be in the
people, through the barangays or Citizens Assemblies affirmative, are petitioners entitled to the reliefs prayed
established under Presidential Decree No. 86 issued on for?
December 31, 1972, which were empowered under II.
Presidential Decree No. 86-A, issued on January 5, 1973, to The pivotal question in these cases is whether the issue
act in connection with the ratification of said Constitution. raised is highly political and, therefore, not justiciable. I
Grounds for the petitions are as follows: maintain that this Court should abstain from assuming
jurisdiction, but, instead, as an act of judicial

286
statesmanship,
285
VOL. 50, MARCH 31, 1973 285
Javellana vs. The Executive Secretary resistance capable of jeopardizing its existence and
disrupting its operation. Ultimately the issue is whether
should dismiss the petitions. In resolving whether or not the new Constitution may be set aside by this Court. But
the question presented is political, joint discussion of issues has it the power and authority to assume such a
Nos. 1, 3 and 4 is necessary so as to arrive at a logical stupendous task when the result of such invalidation would
conclusion. For after the acceptance of a new Constitution be to subject this nation to divisive controversies that may
and acquiescence therein by the people by putting it into totally destroy the social order which the Government
practical operation, any question regarding its validity under the new Constitution has been admirably protecting
should be foreclosed and all debates on whether it was duly and promoting under Martial Law? That the new
or lawfully ushered into existence as the organic law of the Constitution has taken deep root and the people are happy
state become political and not judicial in character. and contended with it is a living reality which the most
The undisputed facts that led to the issuance of articulate critics of the new order cannot deny. 95 out of
Proclamation No. 1102 and Presidential Decrees Nos. 86 108 members of the House of Representatives have opted to
and 86-A are fully set forth in the majority and dissenting serve in the interim National Assembly provided for under
opinions in the Plebiscite cases decided on January 22, the new Constitution. 15 out of 24 Senators have done
1973, and need not be repeated here. likewise. The members of the Congress did not meet
Petitioners seek to set at naught Proclamation No. 1102 anymore last January 22, 1973, not because they were
and Presidential Decrees Nos. 86 and 86-A, claiming that really prevented from so doing but because of no serious
the ratification of the new Constitution pursuant to the effort on their parts to assert their offices under the 1935
said decrees is invalid and of no effect. Presidential Decree Constitution. In brief, the Legislative Department under
No. 86 organized the barangays or Citizens Assemblies the 1935 Constitution is a thing of the past. The Executive
composed of all citizens at least fifteen years of age, and Department has been fully reorganized; the appointments
through these assemblies the proposed 1972 Constitution of key executive officers including those of the Armed
was submitted to the people for ratification. Proclamation Forces were extended and they took an oath to support and
No. 1102 of the President announced or declared the result defend the new Constitution. The courts, except the
of the referendum or plebiscite conducted through the Supreme Court by reason of these cases, have administered
Citizens Assemblies, and that 14,976,561 members thereof justice under the new constitution. All government offices
voted for the ratification of the new Constitution and have dealt with the public and performed their functions
743,869 voted against it. Petitioners assail these two acts of according to the new Constitution and laws promulgated
the President as unauthorized and devoid of legal effect. thereunder.
But looking through the veneer of judicial conformity If the real purpose of the petitions is to set aside the new
with which the petitions have been adroitly contrived, what Constitution, how can this Court justify its assumption of
is sought to be invalidated is the new Constitution itself — jurisdiction when no power has x x x conferred upon it the
the very framework of the present Government since jurisdiction to declare the Constitution or any part thereof
January 17, 1973. The reason is obvious. The Presidential null and void? It is the height of absurdity and impudence
decrees set up the means for the ratification and for a court to wage open war against the organic act to
acceptance of the new Constitution and Proclamation No. which it owes its existence. The situation in which this
1102 simply announced the result of the referendum or Court finds itself does not permit it to pass upon the
plebiscite by the people through the Citizens Assemblies. question whether or not the new Constitution has entered
The Government under the new Constitution has been into force and has superseded the 1935 Constitution. If it
running on its tracks normally and apparently without declares that the present Constitution has not been validly
obstruction in the form of organized ratified, it has to uphold the 1935 Constitution as still the
prevailing organic law. The result would be too anomalous consider the validity of the amendments made after the
to describe, for then this Court would convention
287 288
reassembled. If the making of them was in excess of its power, yet

have to declare that it is governed by one Constitution or
as the entire instrument has been recognized as valid in the
the 1935 Constitution, and the legislative and executive
manner suggested, it would be equally an abuse of power by the
branches by another or the 1972 Constitution. judiciary, and violative of the rights of the people, — who can and
If it declares that the 1972 Constitution is now properly should remedy the matter, if not to their liking, — if it
operative, how can it exercise judicial discretion in these
were to declare the instrument or a portion invalid, and bring
cases when it would have no other choice but to uphold the
confusion and anarchy upon the state.” (Emphasis supplied)
new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as In Smith vs. Good, supra, the Court said:
the matter would then be not meet for judicial
determination, but one addressed to the sovereign power of “It is said that a state court is forbidden from entering upon
the people who have already spoken and delivered their such an inquiry when applied to a new constitution, and not an
mandate by accepting the fundamental law on which the amendment, because the judicial power presupposes an
government of this Republic is now functioning. To deny established government, and if the authority of that government
that the new Constitution has been accepted and actually is annulled and overthrown, the power of its courts is annulled
is in operation would be flying in the face of reason and with it; therefore, if a state court should enter upon such an
pounding one’s bare head against a veritable stone wall or inquiry, come to the conclusion that the government under which
a heavily reinforced concrete, or simply “kicking the deadly it acted had been displaced by an opposing government, it would
pricks” with one’s bare foot in an effort to eliminate the cease to be a court, and it would be incapable of pronouncing a
lethal points. judicial decision upon the question before it; but, if it decides at
When a Constitution has been in operation for all, it must necessarily affirm the existence of the government
sometime, even without popular ratification at that, under which it exercises its judicial powers.” (Emphasis supplied)
submission of the people thereto by the organization of the
government provided therein and observance of its These rules are all traceable to Luther vs. Borden, 48
prescriptions by public officers chosen thereunder, is U.S (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:
indicative of approval. Courts should be slow in nullifying a “Judicial power presupposes an established government
Constitution claimed to have been adopted not in capable of enacting laws and enforcing their execution, and
accordance with constitutional or statutory directives appointing judges to expound and administer them. The
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs acceptance of the judicial office is a recognition of the authority of
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, government from which it is derived. And if the authority of the
34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347]. government is annulled and overthrown, the power of its courts
In Miller vs. Johnson, supra, the Court said: 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
“x x x But it is a case where a new constitution has been
conclusion that the government under which it acted had been
formed and promulgated according to the forms of law. Great
put aside and displaced by an opposing government it would cease
interests have already arisen under it; important rights exist by
to be a court, and be incapable of pronouncing a judicial decision
virtue of it; persons have been convicted of the highest crimes
upon the question it undertook to try. If it decides at all as a
known to the law, according to its provisions; the political power
court, it necessarily affirms the existence and authority of the
of the government has in many ways recognized it; and, under
government under which it is exercising judicial power.”
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

The foreign relations of the Republic of the Philippines entanglements and abstention from injecting itself into the clash of
have been normally conducted on the basis of the new political forces in political settlement....” (Emphasis supplied)
Constitution
290
289

VOL. 50, MARCH 31, 1973 289

and no state with which we maintain diplomatic relations The people have accepted and submitted to a
has withdrawn its recognition of our government. (For Constitution to replace the 1935 Constitution. The new
particulars about executive acts done under the new organic law is now in the plenitude of its efficacy and vigor.
Constitution, see pages 22-25 of the Comments of the We are now living under its aegis and protection and only
Solicitor General, dated February 3, 1973.) the cynics will deny this. This Court should not in the least
Certainly the invalidation of Proclamation No. 1102 and attempt to act as a super-legislature or a super-board of
Presidential Decrees Nos. 86 and 86-A by this Court would canvassers and sow confusion and discord among our
smack of plain political meddling which is described by the people by pontificating there was no valid ratification of the
United States Supreme Court as “entering a political new Constitution. The sober realization of its proper role
thicket” in Colegrove vs. Green, 328 U.S. p. 549. At this and delicate function and its consciousness of the
juncture it would be the part of wisdom for this Court to limitations on its competence, especially situations like
adopt the proper attitude towards political upheavals and this, are more in keeping with the preservation of our
realize that the question before Us is political and not fit democratic tradition than the blatant declamations of those
for judicial determination. For a political question is one who wish the Court to engage in their brand of activism
entrusted to the people for judgment in their sovereign and would not mind plunging it into the whirlpool of
capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. passion and emotion in an effort to capture the intoxicating
28,1967, 100 Phil. 1101), or to a co-equal and coordinate applause of the multitude.
branch of the Government (Vera vs. Arellano, 77 Phil. 192; For all the foregoing, I vote to dismiss all petitions.
Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. ZALDIVAR, J., concurring and dissenting:
Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, In these five cases, the main issue to be resolved by
May 8, 1931). A case involves a political question when Court is whether or not the Constitution proposed by the
there would be “the impossibility of undertaking Constitutional Convention of 1971 had been ratified in
independent resolutions without expressing a lack of accordance with the provisions of Article XV of the 1935
respect due to coordinate branches of government,” or when Constitution. In the plebiscite cases, which were decided by
there is “the potentiality of embarrassment from this Court on January 22, 1973,1 I held the view that this
multifarious pronouncements by various departments on issue could be properly resolved by this Court, and that it
one question.” was in the public interest that this Court should declare
To preserve the prestige and eminence that this Court then whether or not the proposed Constitution had been
has long enjoyed as the “ultimate organ of the “Supreme validly ratified. The
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 1 Charito Planas v. Commission on Elections, et al., L-35925; Pablo C.
of Justice Frankfurter in his dissent in Baker vs. Carr, 369 Sanidad v. Commission on Elections, L-35929; Gerardo Roxas, etc., et al.
U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663: v. Commission on Elections, et al., L-35940; Eddie B. Monteclaro v. The
Commission on Elections, et al., Sedfrey A. Ordoñez, et al. v. The National
“The Court’s authority — possessed neither of the purse nor
Treasurer of Philippines, et al., L-35942; Vidal Tan, et al. v. Commission
the sword — ultimately rests on sustained public confidence in its
on Elections, et al., L-35948; Jose W. Diokno, et al. v. The Commission on
moral sanction. Such feeling must be nourished by the Court’s
Elections, L-35953; Jacinto Jimenez v. Commission on Elections, et al., L-
complete detachment, in fact and appearance, from political

35961; Raul M. Gonzales v. The Honorable Commission on Elections, et _______________

al., L-35965; Ernesto Hidalgo v. Commission Elections, et al., L-35979. 2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr,
369 U.S. 186 (1962).
291
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
292
VOL. 50, MARCH 31, 1973 291
majority of this Court, however, was of the view that the Javellana vs. The Executive Secretary
issue was not squarely raised in those cases, and so the
Court, as a body, did make any categorical pronouncement thereof, must subject him to the restraining and controlling
on the question of whether or not the Constitution proposed power of the people, acting through the agency of the
by the 1971 Convention was validly ratified. I was the only judiciary. It must be remembered that the people act
one who expressed the opinion that the proposed through the courts, as well as through the executive or the
Constitution was not validly ratified and therefore “it legislature. One department is just as representative as the
should not be given force and effect.” other, and judiciary is the department which is charged
The Court is now called upon to declare, and to inform with the special duty of determining the limitations which
the people of this country, whether or not that proposed the law places upon all official actions.4 In the case of
Constitution had been validly ratified and had come into Gonzales v. Commission on Elections,5 this Court ruled that
effect. the issue as to whether or not a resolution of Congress
The Solicitor General, however, contends that this Court acting as a constituent assembly violates the Constitution
has no jurisdiction to resolve the issue that we have is not a political question and is therefore subject to judicial
mentioned because that issue is a political question that review. In the case of Avelino v. Cuenco,6 this Court held
cannot be decided by this Court. This contention by the that the exception to the rule that courts will not interfere
Solicitor General is untenable. A political question relates with a political question affecting another department is
to “those questions which under the Constitution are to be when such political question involves an issue as to the
decided by the people in their sovereign capacity or in construction and interpretation of the provision of the
regard to which full discretionary authority has been constitution. And so, it has been held that the question of
delegated to the legislative, or to the executive, branch of whether a constitution shall be amended or not is a
the government.2 The courts have the power to determine political question which is not in the power of the court to
whether the acts of the executive are authorized by the decide, but whether or not the constitution has been legally
Constitution and the laws whenever they are brought amended is a justiciable question.7
before the court in a judicial proceeding. The judicial My study on the subject of whether a question before the
department of the government exercises a sort of court is political or judicial, based on decisions of the courts
controlling, or rather restraining, power over the two other in the United States — where, after all, our constitutional
departments of the government. Each of the three system has been patterned to a large extent — made me
departments, within its proper constitutional sphere, acts arrive at the considered view that it is in the power of this
independently of the other, and restraint is only placed on Court, as the ultimate interpreter of the Constitution, to
one department when that sphere is actually transcended. determine the validity of the proposal, the submission, and
While a court may not restrain the executive from the ratification of any change in the Constitution.
committing an unlawful act, it may, when the legality of Ratification or non-ratification of a constitutional
such an act is brought before it in a judicial proceeding, amendment is a vital element in the procedure to amend
declare it to be void, the same as it may declare a law the constitution, and I believe that the Court can inquire
enacted by the legislature to be unconstitutional.3 It is a into, and decide on, the question of whether or not an
settled doctrine that every officer under a constitutional amendment to the constitution, as in the present cases, has
government must act according to law and subject to its been ratified in accordance with the
restrictions, and every departure therefrom, or disregard
_______________

4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251. which they are submitted to the people for their ratification
5 L-38196, November 9, 1967, 21 SCRA 774. pursuant to Article XV of the Constitution.’
6 83 Phil. 1957.
294
7 McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A
Words and Phrases p. 516. See also the plebiscite cases,
mentioned in footnote 1, ante. 294 SUPREME COURT REPORTS ANNOTATED
293

VOL. 50, MARCH 31, 1973 293 “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
requirements prescribed in the Constitution that was Constitution, must be approved by majority of the votes cast in an
amended. And so, in the cases now before Us, I believe that election at which they are submitted to the people for the
the question of whether or not the Constitution proposed by ratification as provided in the Constitution.
the 1971 Constitutional Convention had been validly “This Court, in the case of Tolentino vs. Commission Elections,
ratified or not is a justiciable question. L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr.
The Chief Justice, in his opinion, has discussed lengthily Justice Barredo, said:
the subject on whether or not, the cases, before Us involve ‘The Constitutional Convention of 1971, as any other
a political, or a judicial, question. I fully concur with his convention of the same nature, owes its existence and all its
conclusion that the question involved in these cases is authority and power from the existing Constitution of the
justiciable. Philippines. This Convention has not been called by the
On the question now of whether or not the Constitution people directly as in the case of a revolutionary convention
proposed by the 1971 Constitutional Convention has been which drafts the first Constitution of an entirely new
validly ratified, I am reproducing herein pertinent portions government born of either a war of liberation from a mother
of my dissenting opinion in the plebiscite cases: country or of revolution against an existing government or
“The ratification of the Constitution proposed by the 1971 of a bloodless seizure of power a la coup d’etat. As to such
Constitutional Convention must be done in accordance with the kind of conventions, it is absolutely true that the convention
provisions of Section 1, Article XV of the 1935 Constitution of the is completely without restraint and omnipotent all wise,
Philippines, which reads: and it as to such conventions that the remarks of Delegate
‘Section 1. The Congress in joint session assembled by a Manuel Roxas of the Constitutional Convention of 1934
vote of three fourths of all the Members of the Senate and of quoted by Senator Pelaez refer. No amount of
the House of Representatives voting separately, may rationalization can belie the fact that the current
propose amendments to the Constitution or call a convention came into being only because it was called by a
convention for that purpose. Such amendments shall be resolution of a joint session of Congress acting as a
valid as part of this Constitution when approved by a constituent assembly by authority of Section 1, Article XV of
majority of the votes cast at an election at which the the present Constitution x x x.’
amendments are submitted to the people for their x x x
ratification.’ ‘As to matters not related to its internal operation and
“It is in consonance with the abovequoted provision of the 1935 the performance of its assigned mission to propose
Constitution that on March 16, 1967, the Congress of the amendments to the Constitution, the Convention and its
Philippines Resolution No. 2 calling a convention to propose officers and members are all subject to all the provisions of
amendments to the Constitution of the Philippines. Sec. 7 of said the existing Constitution. Now we hold that even as to its
Resolution No. 2 reads as follows: latter task of proposing amendments to the Constitution, it
‘Section 7. The amendments proposed by the Convention is subject to the provisions of Section 1 of Article XV.’
shall be valid and considered part of the Constitution when “In Proclamation No. 1102, issued on January 17, 1973, the
approved by a majority of the votes cast in an election at 295

President of the Philippines certified that as a result of the voting

before the barangays (Citizens Assemblies) 14,976,561 members “It is my view that the President of the Philippines cannot by
of the barangays voted for the adoption of the proposed decree order the ratification of the proposed 1972 Constitution
Constitution, as against 743,869 who voted for its rejection, and thru a voting in the barangays and make said result the basis for
on the basis of the overwhelming majority of the votes cast by the proclaiming the ratification of the proposed constitution. It is very
members of all the barangays throughout the Philippines, the clear, to me, that Proclamation No. 1102 was issued in complete
President proclaimed that the Constitution proposed by the 1971 disregard or in violation, of the provisions of Section 1 of Article X
Convention has been ratified and has thereby come into effect. of the 1935 Constitution.
“It is very plain from the very wordings of Proclamation No. “Proclamation No. 1102 mentions, furthermore, that on the
1102 that the provisions of Section 1 of Article XV of the question as to whether or not the people would still like a
Constitution of 1935 were not complied with. It is not necessary plebiscite to be called to ratify the new Constitution, 14,298,814
that evidence be produced before this Court to show that no members of the barangays answered that there was no need for a
elections were held in accordance with the provisions of the plebiscite but that the vote of the barangays should be considered
Election Code. Proclamation No. 1102 unequivocally states that a vote in a plebiscite. It would thus appear that the barangays
the proposed Constitution of 1972 was voted upon by the assumed the power to determine whether a plebiscite as ordained
barangays. It is very clear, therefore, that the voting held in these in the Constitution be held or not. Indeed, the provision of Section
barangays is not the election contemplated in the provisions of 1, Article XV of the Constitution was completely disregarded.
Section 1, Article XV, of the 1935 Constitution. The election “The affirmative votes cast in the barangays are not the votes
contemplated in said constitutional provision is an election held in contemplated in Section 1 of Article XV of the 1935 Constitution.
accordance with the provisions of the election law, where only the The votes contemplated in said constitutional provision are votes
qualified and registered voters of the country would cast their obtained through the election processes as provided by law.
votes, where official ballots prepared for the purpose are used, ‘An election is the embodiment of the popular will, the
where the voters would prepare their ballots in secret inside the expression of the sovereign power of the people. In common
voting booths in the polling places established in the different parlance, an election is the act of casting and receiving the
election precincts throughout the country, where the election is ballots, counting them, and making the return.’ (Hontiveros
conducted by election inspectors duly appointed in accordance vs. Altavas, 24 Phil. 632, 637).
with the election law, where the votes are canvassed and reported ‘Election’ implies a choice by an electoral body at the
in a manner provided for in the election law. It was this kind of time and substantially in the manner and with the
election that was held on May 14, 1935, when the Constitution of safeguards provided by law with respect to some question or
1935 was ratified; on April 30, 1937, when the amendment to the issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited
Constitution providing for Women’s Suffrage was ratified; on in 29 C.J.S. 13 at footnote 6.5).
June 18, 1940, when the 1940 Amendments to the Constitution ‘* * * the statutory method whereby qualified voters or
were ratified; on March 11, 1947 when the Parity Amendment to electors pass on various public matters submitted to them
the Constitution was ratified; and on November 14, 1967 when — the election of officers, national, state, county, township
the amendments to the Constitution to increase the number of — the passing on various other questions submitted for
Members of the House of Representatives and to allow the their determination.’ (29 C.J.S. 13, citing Iowa-Illinois Gas
Members of Congress to run in the elections for Delegates to the & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa
Constitutional Convention of 1971 were rejected. 358).
“I cannot see any valid reason why the practice or procedure in ‘Election’ is expression of choice by voters of body politic.
the past, in implementing the constitutional provision requiring (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words
the holding, of an election to ratify or reject an amendment to the and
Constitution, has not been followed in the case of the Constitution
297
proposed by the 1971 Constitutional Convention.
296

VOL. 50, MARCH 31, 1973 297 them to raise their hands in answer to the question of whether
Javellana vs. The Executive Secretary the vote for or against a proposed Constitution. The election as
provided by law should be strictly observed in determining the
Phrases, Permanent Edition, p. 234). will of the sovereign people in a democracy. In our Republic, the
‘The right to vote may be exercised only on compliance will of the people must be expressed through the ballot in a
with such statutory requirements as have been set by the manner that is provided by law.
legislature.’ (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, “It is said that in a democracy, the will of the people is the
327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 supreme law. Indeed, the people are sovereign, but the will of the
Utah 2d 169 in 29 C.J.S. 38). (Emphasis supplied). people must be expressed in a manner as the law and the
“In this connection I herein quote the pertinent provisions of demands a well-ordered society require. The rule of law must
the Election Code of 1971: prevail even over the apparent will of the majority of the people, if
‘Sec. 2. Applicability of this Act. — All elections of public that will had not been expressed, or obtained, in accordance with
officers except barrio officials and plebiscites shall be the law. Under the rule of law, public questions must be decided
conducted in the manner provided by this Code.’ in accordance with the Constitution and the law. This is specially
‘Sec. 99. Necessity of registration to be entitled to vote. — true in the case of adoption of a constitution or in the ratification
In order that a qualified voter may vote in any regular or of an amendment to the Constitution.
special election or in any plebiscite, he must be registered in “The following citations are, to me, very relevant in the effort
the permanent list of voters for the city, municipality or to determine whether the proposed Constitution of 1972 had been
municipal district in which he resides: Provided, that no validly ratified, or not:
person shall register more than once without first applying ‘When it is said that ‘the people’ have the right to alter or
for cancellation of his previous registration.’ (Italics amend the constitution, it must not be understood that term
supplied). (Please see also Sections 100-102, Election Code necessarily includes all the inhabitants of the state. Since
of 1971, R.A. No. 6388) the question of the adoption or rejection of a proposed new
“It is stated in Proclamation No. 1102 that the voting was done constitution or constitutional amendment must be answered
by the members of citizens assemblies who are 15 years of age or a vote, the determination of it rests with those who, by
over. Under the provision of Section I of Article V of the 1935 existing constitution, are accorded the right of suffrage. But
Constitution, the age requirement to be a qualified voter is 21 the qualified electors must be understood in this, as in
years or over. many other cases, as representing those who have not the
“But what is more noteworthy is the fact that the voting in the right to participate in the ballot. If a constitution should be
barangays, except in very few instances, was done by the raising abrogated and a new one adopted, by the whole mass of
of hands by the persons indiscriminately gathered to participate people in a state acting through representatives not chosen
in the voting, where even children below 15 years of age were by the ‘people’ in political sense of the term, but by the
included. This is a matter of common observation, or of common general body of the populace, the movement would be extra-
knowledge, which the Court may take judicial notice of. To legal.’ (Black’s Constitutional Law, Second Edition, pp. 47-
consider the votes in the barangays as expressive of the popular 48).
will and use them as the basis in declaring whether a ‘The theory of our political system is that the ultimate
Constitution is ratified or rejected is to resort to a voting by sovereignty is in the people, from whom springs all
demonstrations, which is would mean the rule of the crowd, which legitimate authority. The people of the Union created a
is only one degree higher than the rule by the mob. Certainly, so national constitution, and conferred upon it powers of
important a question as to whether the Constitution, which is the sovereignty on certain subjects, and the people of each State
supreme law of the land, should be ratified or not, must not be created a State government, to exercise the remaining
decided by simply gathering people and asking powers of sovereignty so
298 299

far as they were disposed to allow them to be exercised at

all. By the constitution which they establish, they not only
tie up the hands of their official agencies, but their own Javellana vs. The Executive Secretary
hands as well; and neither the officers of the State, nor the
whole people as an aggregate body, are at liberty to take on the legislature, and the former are powerless by vote of
action in opposition to this fundamental law.’ (Cooley’s acceptance to give legal sanction to an amendment the
Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in submission of which was made in disregard of the
Graham v. Jones, 3 So. 2d. 761, 782). limitations contained in the constitution.’ (16 C.J.S. 35-36.
‘The theory that a favorable vote by the electorate, cited in Graham v. Jones, 3 So. 2d 761, 782).
however unanimous, on a proposal to amend a constitution, ‘It is said that chaos and confusion in the government
may cure, render innocuous, all or any antecedent failures affairs of the State will result from the Court’s action in
to observe commands of that Constitution in respect of the declaring the proposed constitutional amendment void. This
formulation or submission of proposed amendments thereto, statement is grossly and manifestly inaccurate. If confusion
does not prevail in Alabama, where the doctrine of the and chaos should ensue, it will not be due to the action of
stated theory was denied, in obvious effect, by the the Court but will be the result of the failure of the drafters
pronouncement 60 years ago of broad, wholesome joint resolution to observe, follow and obey the plain
constitutional principles in Collier v. Frierson, supra, as essential provisions of the Constitution. Furthermore, to
quoted in the original opinion, ante. The people themselves say that, the Court disregards its sworn duty to enforce the
are bound by the Constitution; and, being so bound, are Constitution, chaos and confusion will result, is an
powerless, whatever their numbers, to change or thwart its inherently weak argument in favor of the alleged
mandates, except through the peaceful means of a constitutionality of the proposed amendment. It is obvious
constitutional convention, or of an amendment according to that, if the Court were to countenance the violations of the
the mode therein prescribed, or through the exertion of the sacramental provisions Constitution, those who would
original right of revolution. ‘The Constitution may be set thereafter desire to violate it disregard its clear mandatory
aside by revolution, but it can only be amended in the way provisions would resort to the scheme of involving and
it provides,’ said Hobson, C.J., in McCreary v. Speer, 156 confusing the affairs of the State then simply tell the Court
Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87 that it was powerless to exercise one of its primary
So. 375, 385, 387, On Rehearing). functions by rendering the proper decree to make the
‘The fact that a majority voted for the amendment, Constitution effective.’ (Graham v. Jones, 3 So. 2d. 761, 793-
unless the vote was taken as provided by the Constitution, 794).
is not sufficient to make a change in that instrument. “In our jurisprudence I find an instance where this Court did
Whether a proposed amendment has been legally adopted is not allow the will of the majority to prevail, because the
a judicial question, for the court must uphold and enforce requirements of the law were not complied with. In the case of
the Constitution as written until it is amended in the way Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both
which it provides for.’ Wood v. Tooker, 15 Mont. 8, 37 Pac candidates for the office of Municipal Mayor of Miagao, Iloilo, in
840, 25 L.R.A. 560;McConaughty v. State, 106 Minn. 409, the elections of November 11, 1947. Monsale had duly filed his
119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal. certificate of candidacy before the expiration of the period for the
499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, filing of the same. However, on October 10, 1947, after the period
133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, for the filing of the certificate of candidacy, Monsale withdrew his
162 S.W. 99, 104). certificate of candidacy. But on November 7, 1947 Monsale
‘Provisions of a constitution regulating its own attempted to revive his certificate of candidacy by withdrawing
amendment, * * * are not merely directory, but are the withdrawal of certificate of candidacy. The Commission on
mandatory; and a strict observance of every substantial Elections, November 8, 1947, ruled that Monsale could no longer
mandatory; and a strict observance of every substantial be a candidate. Monsale nevertheless proceeded with his
requirement is essential to the validity of the proposed candidacy. The boards of inspectors in Miagao, however, did not
amendment. These provisions are as binding on the people count the votes cast for Monsale upon the ground that the votes
as cast for him were stray votes, because he was considered as
having no certificate of candidacy. On the other hand, the boards
300
of inspectors credited Nico
open debate on the proposed constitution, be suspended in the

301
meantime.’ It is,
VOL. 50, MARCH 31, 1973 301 302

with 2,291 votes, and Nico was proclaimed elected. Monsale filed Javellana vs. The Executive Secretary
a protest against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots during the therefore, my view that voting in the barangays on January 10,
proceedings in the trial court, it appeared that Monsale had 1973 was not free, and so this is one added reason why the results
obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of the voting in the barangays should not be made the basis for
of 601 votes in favor of Monsale. The Court of First Instance of proclamation of the ratification of the proposed Constitution.
Iloilo decided the election protest in favor of Monsale. Upon “It is my view, therefore, that Proclamation No. 1102
appeal by Nico, this Court reversed the decision of the lower repugnant to the 1935 Constitution, and so it is invalid, and
court. This Court declared that because Monsale withdrew his should not be given effect. The Constitution of 1972 proposed by
certificate of candidacy, his attempt to revive it by withdrawing the 1971 Constitutional Convention should be considered as not
his withdrawal of his certificate of candidacy did not restore the yet ratified by the people of this Republic, and so it should not be
effectiveness of his certificate of candidacy, and this Court given force and effect.”
declared Nico the winner in spite of the fact that Monsale had
obtained more votes than he. It is urged by the Solicitor General, however, that the
“We have cited this Monsale case to show that the will of the voting in the citizens assemblies was a substantial
majority of the voters would not be given effect, as declared by compliance with the provisions of Article XV of the 1935
this Court, if certain legal requirements have not been complied Constitution. The Solicitor General maintains that the
with in order to render the votes valid and effective to decide the primary thrust of the provision of Article XV of the 1935
result of an election. Constitution is that “to be valid, amendments must gain
“And so, in the cases now before this Court, the fact that the the approval of the majority recognition of the democratic
voting in the citizens assemblies (barangays) is not the election postulate that sovereign resides in the people.” It is not
that is provided for in the 1935 Constitution for the ratification of disputed that in a democratic sovereignty resides in the
the amendment to the Constitution, the affirmative votes cast in people. But the term “people” must be understood in its
those assemblies can not be made the basis for declaring the constitutional meaning, and they are “those persons who
ratification of the proposed 1972 Constitution, in spite of the fact are permitted by the Constitution to exercise the elective
that it was reported that 14,976,561 members of the citizens franchise.”8 Thus, in Section 2 of Article VII of the 1935
assemblies voted for the adoption as against 743,869 for the Constitution, it is provided that “the President shall hold
rejection, because the votes thus obtained were not in accordance his office during a term of four years and, together with the
with the provisions of Section 1 of Article XV of the 1935 Vice-President chosen for the same term, shall be elected
Constitution of the Philippines. The rule of law mast be upheld. by direct vote of the people...” Certainly under that
“My last observation: One of the valid grounds against the constitutional provision, the “people” who elect directly the
holding of the plebiscite on January 15, 1973, as provided in President and the Vice-President are no other than the
Presidential Decree No. 73, is that there is no freedom on the part persons who, under the provisions of the same
of the people to exercise their right of choice because of the Constitution, are granted the right to vote. In like manner
existence of martial law in our country. The same ground holds the provision in Section 1 of Article II of the 1935
true as regards to the voting of the barangays on January 10 to Constitution which says “Sovereignty resides in the
15, 1973. More so, because by General Order No. 20, issued on people and all government authority emanates from them,”
January 7, 1973, the President of the Philippines ordered ‘that the “people” who exercise the sovereign power are no other
the provisions of Section 3 of Presidential Decree No. 73 in so far than the persons who have the right to vote under the
as they allow free public discussion of the proposed constitution, Constitution. In the case of Garchitorena vs. Crescini,9 this
as well as my order of December 17, 1972 temporarily suspending Court, speaking through Mr. Justice Johnson, said, “In
the effects of Proclamation No. 1081 for the purpose of free and democracies, the people, combined,

_______________ The term “election” as used in Section 1 of Article XV of

8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82. the
9 39 Phil. 258, 268.
_______________
303
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
VOL. 50, MARCH 31, 1973 303
304

represent the sovereign power of the State. Their sovereign
authority is expressed through the ballot, of the qualified Javellana vs. The Executive Secretary
voters, in duly appointed elections held from time to time,
by means of which they choose their officials for definite 1935 Constitution should be construed along with the term
fixed periods, and to whom they entrust, for the time being, “election” as used in the Provisions of Section 4 of the
as their representatives, the exercise of the powers of Philippine Independence Act of the Congress of the United
government.” In the case of Moya v. Del Fierro,10 this States, popularly known as the Tydings-McDuffie Law
Court, speaking through Mr. Justice Laurel, said, “As long (Public Act No. 127). Said Section 4 of the Tydings-
as popular government is an end to be achieved and McDuffie Law provides as follows:
safeguarded, suffrage, whatever may be the modality and
form devised, must continue to be the means by which the “Section 4. After the President of the United States certified
great reservoir of power must be emptied into the that the constitution conforms with the provisions of this act, it
receptacle agencies wrought by the people through their shall be submitted to the people of the Philippine Islands for their
Constitution in the interest of good government and the ratification or rejection at an election to he held within months
common weal. Republicanism, in so far as it implies the after the date of such certification, on a date to be fixed by the
adoption of a representative type of government, Philippine Legislature at which election, the qualified voters of the
necessarily points to the enfranchised citizen as a particle Philippine Islands shall have an opportunity to vote directly or
of popular sovereignty and as the ultimate source of the against the proposed constitution and ordinances append thereto.
established authority.” And in the case of Abanil v. Justice Such election shall be held in such manner as may prescribed by
of the Peace of Bacolod,11 this Court said: “In the scheme of the Philippine Legislature to which the return of the election shall
our present republican government, the people are allowed be made. The Philippine Legislature shall certify the result to the
to have a voice therein through the instrumentality of Governor-General of the Philippine Islands, together with a
suffrage to be availed of by those possessing certain statement of the votes cast, and a copy of said constitution
prescribed qualifications. The people, in clothing a citizen ordinances. If a majority of the votes cast shall be for the
with the elective franchise for the purpose of securing a constitution, such vote shall be deemed an expression of the will
consistent and perpetual administration of the government of the people of the Philippine Independence, and the Governor-
they ordain, charge him with the performance of a duty in General shall, within thirty days after receipt of the certification
the nature of a public trust, and in that respect constitute from the Philippine Legislature, issue a proclamation for the
him a representative of the whole people. This duty requires election of officers of the government of the Commonwealth of the
that the privilege thus bestowed exclusively for the benefit Philippine Islands provided for in the Constitution...”
of the citizen or class of citizens professing it, but in good
faith and with an intelligent zeal for the general benefit It can safely be said, therefore, that when the framers of
and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. the 1935 Constitution used, the word “election” in Section I
588)...” There is no question, therefore, that when we talk Article XV of the 1935 Constitution they had no other idea
of sovereign people, what is meant are the people who act in mind except the elections that were periodically held in
through the duly qualified and registered voters who vote the Philippines for the choice of public officials prior to the
during an election that is held as provided in the drafting of the 1935 Constitution, and also the “election”
Constitution or in the law. 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...” Government who have been performing their duties
It is but logical to expect that the framers of the 1935 apparently in observance of the provisions of the new
Constitution would provide a mode of ratifying an Constitution. It could not be otherwise, because the
amendment to that Constitution similar to the mode of President of the Philippines, who is the head of the
ratifying the original Constitution itself. executive department, had proclaimed that the new
Constitution had come into effect, and his office had taken
305
the steps to implement the provisions of the new
Constitution. True it is, that some 92 members of the
VOL. 50, MARCH 31, 1973 305
306

It is clear therefore, that the ratification or any Javellana vs. The Executive Secretary
amendment to the 1935 Constitution could only be done by
holding an election, as the term “election” was understood,
House of Representatives and 15 members of the Senate, of
and practiced, when the 1935 Constitution as drafted. The
the Congress of the Philippines had expressed their option
alleged referendum in the citizens assemblies —
to serve in the interim National Assembly that is provided
participated in by persons aged 15 years or more,
for in Section 2 of Article XVII of the proposed
regardless of whether they were qualified voters or not,
Constitution. It must be noted, however, that of the 15
voting by raising their hands, and the results of the voting
senators who expressed their option to serve in the interim
reported by the barrio or ward captain, to the municipal
National Assembly only one them took his oath of office;
mayor, who in turn submitted the report to the provincial
and of the 92 members of the House of Representatives
Governor, and the latter forwarding the reports to the
who opted to serve in the interim National Assembly, only
Department of Local Governments, all without the
22 took their oath of office. The fact that only one Senator
intervention of the Commission on Elections which is the
out of 24, and only 22 Representative out of 110, took their
constitutional body which has exclusive charge of the
oath of office, is an indication that only a small portion of
enforcement and administration of all laws, relative to the
the members of Congress had manifested the acceptance of
conduct of elections — was not only a non-substantial
the new Constitution. It is in the taking of the oath of office
compliance with the provisions of Section 1 of Article XV of
where the affiant says that he swears to “support and
the 1935 Constitution but a downright violation of said
defend the Constitution” that the acceptance of the
constitutional provision. It would be indulging in sophistry
Constitution is made manifest. I agree with counsel
to maintain that the voting in the citizens assemblies
petitioners in L-36165 (Gerardo Roxas, et al. v. Alejandro
amounted to a substantial compliance with the
Melchor, et al.) when he said that the members of Congress
requirements prescribed in Section 1 of Article XV of the
who opted to serve in the interim National Assembly did
1935 Constitution.
only ex abundante cautela, or by way of a precaution,
It is further contended by the Solicitor General, that
making sure, that in the event the new Constitution
even if the Constitution proposed by the 1971
becomes definitely effective and the interim National
Constitutional Convention was not ratified in accordance
Assembly convened, they can participate in legislative
with the provisions of Section 1 of Article XV of the 1935
work in the capacity as duly elected representatives of the
Constitution, the fact is that after the President of the
people, which otherwise they could not do if they did not
Philippines had issued Proclamation No. 1102 declaring
manifest their option to serve, and that option had to be
that the said proposed Constitution “has been ratified by
made within 30 day from January 17, 1973, the date when
overwhelming majority of all the votes cast by the members
Proclamation No. 110 was issued. Of course, if the proposed
of all the barangays (citizens assemblies) throughout the
Constitution does not become effective, they continue to be
Philippines and had thereby come into effect” the people
members of Congress under the 1935 Constitution. Let it
have accepted the new Constitution. What appears to me,
be considered that the members of the House of
however, is that practically it is only the officials and
Representatives were elected in 1969 to serve a term which
employees under the executive department of the
will yet expire on December 31, 1973. Whereas, of the
Senators who opted to serve in the interim National the fact that it was not ratified in accordance with the
Assembly, the term of some of them will yet expire on provisions of Section 1 of Article XV of the 1935
December 31, 1973, some on December 31, 1975, and the Constitution.
rest on December 31, 1977. Let if be noted that 9 Senators It is my honest view that the Constitution proposed by
did not opt to serve in the interim National Assembly, and the 1971 Constitutional Convention has not come into
18 members of the House of Representatives also did not effect. I do not say, however, that the proposed
opt to serve in the interim National Assembly. Constitution is invalid. To me, the validity of the proposed
Neither can it be said that the people have accepted the Constitution is not in issue in the cases before Us. What
new Constitution. I cannot, in conscience, accept the the petitioners assail is not the validity of the proposed
reported Constitution but the validity of Presidential Proclamation
No. 1102 which declares the proposed Constitution as
307
having been ratified and has come into effect. It being my
considered view that the ratification of
VOL. 50, MARCH 31, 1973 307
308

affirmative votes in the citizens assemblies as a true and
correct expression by the people of their approval, or Javellana vs. The Executive Secretary
acceptance, of the proposed Constitution. I have my serious
doubts regarding the freedom of the people to express their the proposed Constitution, as proclaimed in Proclamation
views regarding the proposed Constitution during the No. 1102, is not in accordance with the provisions of
voting in the citizens assemblies, and I have also my Section 1 of Article XV, of the 1935 Constitution, I hold
serious doubts regarding the truthfulness and accuracy of that Proclamation No. 1102 is invalid and should not be
the reports of the voting in the citizens assemblies. This given force and effect. Their proposed Constitution,
doubt has been engendered in my mind after a careful therefore, should be considered as not yet validly ratified,
examination and study of the records of these cases, and so it is not in force. The proposed Constitution may
particularly with respect to the reports of the voting in the still be submitted to a plebiscite in conformity with Section
citizens assemblies. Perhaps, it may be said that the 1 of Article XV of the 1935 Constitution. Incidentally, I
people, or the inhabitants of this country, have acquiesced must state that the Constitution is still in force, and this
to the new Constitution, in the sense that they have Court is still functioning under the 1935 Constitution.
continued to live peacefully and orderly under the I sincerely believe that the proposed Constitution may
government that has been existing since January 17, 1973 still be submitted to the people in an election or plebiscite
when it was proclaimed that the new Constitution came held in accordance with the provisions of Section 1 of
into effect. But what could the people do? In the same way Article XV of the 1935 Constitution. In fact, as we have
that the people have lived under martial law since adverted to in this opinion, this was the mandate of
September 23, 1972, they also have to live under the Congress when, on March 16, 1967, it passed Resolution
government as it now exists, and as it has existed since the No. 2 calling a convention to propose amendments to the
declaration of martial law on September 21, 1972, 1935 Constitution. The Court may take judicial notice of
regardless of what Constitution is operative — whether it the fact that the President of the Philippines has reassured
is the 1935 Constitution or the new Constitution. Indeed, the nation that the government of our Republic since the
there is nothing that the people can do under the declaration of martial law is not a revolutionary
circumstances actually prevailing in our country today — government, and that he has been acting all the way in
circumstances, known to all, and which I do not consider consonance with his powers under the Constitution. The
necessary to state in this opinion. I cannot agree, therefore, people of this Republic has reason to be happy because,
with my worthy colleagues in the Court who hold the view according to the President, we still have a constitutional
that the people have accepted the new Constitution, and government. It being my view that the 1935 Constitution is
that because the people have accepted it, the new still in force, I believe Congress may still convene and pass
Constitution should be considered as in force, regardless of a law calling for an election at which the Constitution
proposed by the 1971 Constitutional Convention will be “Let our judges be as it were the vestal keepers of the purity
submitted to the people their ratification or rejection. A and sanctity of our Constitution, and the protection and
plebiscite called pursuant to Section 1 of Article XV of the vindication of popular rights will be safe and secure in their
1935 Constitution is an assurance to our people that we reverential guardianship.”
still have in our country the Rule of Law and that the
democratic system of government that has been implanted I only wish to help prevent, if I can, democracy and the
in our country by the Americans, and which has become liberties of our people from vanishing in our land, because,
part of our social and political fabric, is still a reality. as Justice George Sutherland of the U. S. Supreme Court
The views that I have expressed in this opinion are said:
inspired by a desire on my part to bring about stability in
“(t)he saddest epitaph which can be carved in memory of a
democratic and constitutional system in our country. I feel
vanished liberty is that it was lost because its possessors failed to
that if this Court would give its imprimatur to the
stretch forth a saving hand while yet there was time.”
ratification of the proposed Constitution, as announced in
Proclamation 310
309

I concur fully with the personal views expressed by the
No. 1102, it being very clear that the provisions of Section 1
Chief Justice in the opinion that he has written in these
of Article XV of the 1935 Constitution had not been
cases. Along with him, I vote to deny the motion to dismiss
complied with, We will be opening the gates for a similar
and give due course to the petitions in these cases.
disregard of the Constitution in the future. What I mean is
FERNANDO, J., dissenting:
that if this Court now declares that a new Constitution is
No question more momentous, none impressed with
now in force because the members of the citizens
such transcendental significance is likely to confront this
assemblies had approved the said new Constitution,
Court in the near or distant future as that posed by these
although that approval was not in accordance with the
petitions. For while the specific substantive issue is the
procedure and the requirements prescribed in the 1935
validity of Presidential Proclamation No. 1102, an adverse
Constitution, it can happen again in some future time that
judgment may be fraught with consequences that, to say
some amendments to the Constitution may be adopted,
the least, are far-reaching in its implications. As stressed
even in a manner contrary to the existing Constitution and
by respondents, “what petitioners really seek to invalidate
the law, and then said proposed amendment is submitted
is the new Constitution.”1 Strict accuracy would of course
to the people in any manner and what will matter is that a
qualify such statement that what is in dispute, as noted in
basis is claimed that there was approval by the people.
the opinion of the Chief Justice, goes only as far as the
There will not be stability in our constitutional system, and
validity of its ratification. It could very well be though that
necessarily no stability in our government. As a member of
the ultimate outcome is not confined within such limit, and
this Court I only wish to contribute my humble efforts to
this is not to deny that under its aegis, there have been
prevent the happening of such a situation in the future.
marked gains in the social and economic sphere, but given
It appearing to me that the announced ratification of the
the premise of continuity in a regime under a fundamental
proposed Constitution through the voting in the citizens
law, which itself explicitly recognizes the need for change
assemblies is a clear violation of the 1935 Constitution,
and the process for bringing it about,2 it seems to me that
what I say in this opinion is simply an endeavor on my part
the more appropriate course is this Court to give heed to
to be true to my oath of office to defend and support the
the plea of petitioners that the most serious attention be
1935 Constitution. I am inspired by what the great jurist
paid to their submission that the challenged executive act
and statesman, Jose P. Laurel, said:
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 approval stamps with legitimacy the action taken. Thus in
follow therefore that the legal affirming constitutional supremacy, the political
departments could seek the aid of the judiciary. For
_______________
1 Memorandum for Respondents, 2. _______________
2 According to the 1935 Constitution: “The Congress in joint session 3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of
assembled, by a vote of three-fourths of all the members of the Senate and essays, Lerner made this not-entirely-inaccurate observation: “No
of the House of Representatives voting separately may propose governmental institution that consists of a group of legal technicians
amendments to this Constitution or call a convention for that purpose. appointed for life can ever hope to cope with, much less solve, the exigent
Such amendments shall be valid as part of this Constitution when problems of our polity.” Ibid., 231. He was referring of course to the
approved by a majority of the votes cast at an election at which the Supreme Court of the United States.
amendments are submitted to the people for their ratification.” Art. XV, 4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26
Section 1. (1938).
5 Black, The People and the Court (1960).
311
6 Murphy, Elements of Judicial Strategy (1964).
312
VOL. 50, MARCH 31, 1973 311
position taken by the Chief Justice as set forth with his Javellana vs. The Executive Secretary
usual lucidity and thoroughness has, on the whole, my
concurrence, subject, of course, to reservations insofar as it the assent it gives to what has been done conduces to its
contains views and nuances to which I have in the past support in a regime where the rule of law holds sway. In
expressed doubts. Nonetheless, I feel that a brief discharging such a role, this Court must necessarily take in
expression of the reasons for the stand I take would not be account not only what the exigent needs of the present
amiss.In coping with its responsibility arising from the demand but what may lie ahead in the unexplored and
function of judicial review, this Court is not expected to be unknown vistas of the future. It must guard against the
an oracle given to utterances of eternal verities, but pitfall of lack of understanding of the dominant forces at
certainly it is more than just a keen but passive observer of work to seek a better life for all, especially those suffering
the contemporary scene. It is, by virtue of its role under the from the pangs of poverty and disease, by a blind
separation of powers concept, involved not necessarily as a determination to adhere to the status quo. It would be
participant in the formation of government policy, but as tragic, and a clear case of its being recreant to its trust, if
an arbiter of its legality. Even then, there is realism in the suspicion can with reason be entertained that its
what Lerner did say about the American Supreme Court as approach amounts merely to a militant vigilantism that is
“the focal point of a set of dynamic forces which [could play] violently opposed to any form of social change. It follows
havoc with the landmarks of the American state and then that it does not suffice that recourse be had only to
determine the power configuration of the day.”3 That is what passes for scholarship in the law that could be
why there is this caveat. In the United States as here, the marred by inapplicable erudition and narrow legalism.
exercise of the power of judicial review is conditioned on Even with due recognition, such factors, however, I cannot,
the necessity that the decision of a case or controversy for reasons to be set more lengthily and in the light of the
before it so requires. To repeat, the Justices of the highest opinion of the Chief Justice, reach the same result as the
tribunal are not, as Justice Frankfurter made clear, majority of my brethren. For, in the last analysis, it is my
“architects of policy. They can nullify the policy of others, firm conviction that the institution of judicial review
they are incapable of fashioning their own solutions for speaks too clearly for the point to be missed that official
social problems.”4 Nonetheless, as was stressed by action, even with due allowance made for the good faith
Professors Black5 and Murphy,6 a Supreme Court by the that invariably inspires the step taken, has to face the
conclusion it reaches and the decision it renders does not
merely check the coordinate branches, but also by its
gauntlet of a court suit whenever there is a proper case justification from circumstances of weight and gravity, if
with the appropriate parties. this Court were to accede to what is sought by respondents
1. Respondents are acting in the soundest constitutional and rule that the question before us is political.
tradition when, at the outset, they would seek a dismissal On this point, it may not be inappropriate to refer to a
of these petitions. For them, the question raised is political separate opinion of mine in Lansang v. Garcia.13 Thus:
and thus beyond the jurisdiction of this Court. Such an “The term has been made applicable to controversies
approach cannot be indicted for unorthodoxy. It is implicit clearly non-judicial and therefore beyond its jurisdiction or
in the concept of the rule of law that rights belong to the to an issue involved in a case appropriately subject to its
people and the government possesses powers only. cognizance, as to
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 7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v.
inquiry as to its validity. Respondents through Solicitor- Cuenco, 103 Phil. 1051 (1957); Vera v. Arca, L-25721, May 26, 1969, 28
General Mendoza would deny our competence to proceed SCRA 351.
further. It is their view, vigorously pressed and plausibly 8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21
asserted, that since what is involved is not merely the SCRA 774.
effectivity of an amendment but the actual coming into 9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41
effect of a new constitution, the matter is not justiciable. SCRA 702.
The immediate reaction is that such a contention is 10 Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
11 256 US 368 (1921).
313
12 Ibid., 374-375.
13 L-33964, Dec. 11, 1971, 42 SCRA 448.
VOL. 50, MARCH 31, 1973 313
314
to be tested in the light of the fundamental doctrine of 314 SUPREME COURT REPORTS ANNOTATED
separation of powers that it is not only the function but the Javellana vs. The Executive Secretary
solemn duty of the judiciary to determine what the law is
and to apply it in cases and controversies that call for which there has been a prior legislative or executive
decision.7 Since the Constitution pre-eminently occupies determination to which deference must be paid. It has
the highest rung in the hierarchy of legal norms, it is in the likewise been employed loosely to characterize a suit where
judiciary, ultimately this Tribunal, that such a the party proceeded against is the President or Congress,
responsibility is vested. With the 1935 Constitution or any branch thereof. If to be delimited with accuracy,
containing, as above noted, an explicit article on the subject “political questions” should refer to such as would under
of amendments, it would follow that the presumption to be the Constitution be decided by the people in their sovereign
indulged in is that the question of whether there has been capacity or in regard to full discretionary authority is
deference to its terms is for this Court to pass upon. What vested either in the President or Congress. It is thus
is more, the Gonzales,8 Tolentino9 and Planas10 cases speak beyond the competence of the judiciary to pass upon.
unequivocally to that effect. Nor is it a valid objection to Unless clearly falling within the formulation, the decision
this conclusion that what was involved in those cases was reached by the political branches whether in the form of a
the legality of the submission and not ratification, for from congressional act or an executive order could be tested in
the very language of the controlling article, the two vital court. Where private rights are affected, the judiciary has
steps are proposal and ratification, which as pointed out in no choice but to look into its validity. It is not to be lost
Dillon v. Gloss,11 “cannot be treated as unrelated acts, but sight of that such a power comes into play if there be an
as succeeding steps in a single endeavor.”12 Once an aspect appropriate proceeding that may be filed only after each
thereof is viewed as judicial, there would be no justification coordinate branch has acted. Even when the Presidency or
for considering the rest as devoid of that character. It Congress possesses plenary powers, its improvident
would be for me then an indefensible retreat, deriving no
exercise or the abuse thereof, if shown, may give rise to a derive much aid and comfort from the writings of both
justiciable controversy. For the constitutional grant of Professor Bickel18 of Yale and Professor Freund19 of
authority is usually unrestricted. There are limits to what Harvard, both of whom in turn are unabashed admirers of
may be done and how it is to be accomplished. Necessarily Justice Brandeis. Whatever be the merit inherent in their
then, the courts in the proper exercise of judicial review lack of enthusiasm for a more active and positive role that
could inquire into the question of whether or not either of must be played by the United States Supreme Court in
the two coordinate branches has adhered to what is laid constitutional litigation, it must be judged in the light of
down by the Constitution. The question thus posed is our own history. It cannot be denied that from the well
judicial rather than political.”14 The view entertained by nigh four decades of constitutionalism in the Philippines,
Professor Dodd is not too dissimilar. For him such a term even discounting an almost similar period of time dating
“is employed to designate certain types of functions from the inception of American sovereignty, there has
committed to the political organs of government (the sprung a tradition of what has been aptly termed as
legislative and executive departments, or either of them) judicial activism. Such an approach could be traced to the
and not subject to judicial investigation.”15 After a valedictory address before the 1935 Constitutional
thorough study of American judicial decisions, both federal Convention of Claro M. Recto. He spoke of the trust
and state, he could conclude: “The field of judicial non- reposed in the judiciary in these words: “It is one of the
enforceability is important, but is not large when paradoxes of democracy that the people at times place more
contrasted with the whole body of written constitutional confidence in instrumentalities of the State other than
texts. The exceptions from judicial enforceability fall those directly chosen by them for the exercise of their
primarily within the field of public or governmental sovereignty.”20 It would thus appear that even then this
interests.”16 Nor was Professor Weston’s formulation any Court was expected not to assume an attitude of timidity
and hesitancy when a constitutional question is posed.
_______________ There was
14 Ibid., 504-505.
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I _______________
Selected Essays on Constitutional Law 355, 387 (1938). 17 Weston, Political Questions, I Selected Essays an Constitutional
16 Ibid., 395. Law 418, 422 (1938).
18 Cf. Bickel, The Least Dangerous Branch (1962).
315 19 Cf. Freund, On Understanding the Supreme Court (1950). Also his
The Supreme Court of the United States (1962).
VOL. 50, MARCH 31, 1973 315 20 Laurel, S., VII Proceedings of the Philippine Constitutional
Convention (1934-1935), Appendix L, 800.
316
different. As was expressed by him: “Judicial questions, in
what may be thought the more useful sense, are those 316 SUPREME COURT REPORTS ANNOTATED
which the sovereign has set to be decided in the courts.
Political questions, similarly, are those which the sovereign Javellana vs. The Executive Secretary
has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra- the assumption of course that it would face up to such a
governmental action.”17 What appears undeniable then task, without regard to political considerations and with no
both from the standpoint of Philippine as well as American thought except that of discharging its trust. Witness these
decisions is the care and circumspection required before the words Justice Laurel in an early landmark case, People v.
conclusion is warranted that the matter at issue is beyond Vera,21 decided in 1937: “If it is ever necessary for us to
judicial cognizance, a political question being raised. make vehement affirmance during this formative period of
2. The submission of respondents on this subject of political history, it is that we are independent of the
political question, admittedly one of complexity and Executive no less than of the Legislative department of our
importance, deserves to be pursued further. They would government — independent in the performance of our
functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism the question of judicial review, it is not a case of black and
in the accomplishment of our sworn duty as we see it and white; there are shaded areas. It goes too far, in my view, if
as we understand it.”22 The hope of course was that such the perspective is one of dissatisfaction, with its overtones
assertion of independence impartiality was not mere of distrust. This expression of disapproval has not escaped
rhetoric. That is a matter more appropriately left to others Dean Rostow of Yale, who began one of his most celebrated
to determine. It suffices to stake that what elicits approval legal essays. The Democratic Character of Judicial Review,
on the part of our people of a judiciary ever alert to inquire thus: “A theme of uneasiness, and even of guilt, colors the
into alleged breaches of the fundamental law is the literature about judicial review. Many of those who have
realization that to do so is merely to do what is expected of talked, lectured, and written about the Constitution have
it and that thereby there is no invasion of spheres been troubled by a sense that judicial review is
appropriately belonging to the political branches. For it undemocratic.”25 He went on to state: “Judicial review, they
needs to be kept in kind always that it can act only when have urged, is an undemocratic shoot on an otherwise
there is a suit with proper parties before it, wherein rights respectable tree. It should be cut off, or at least kept
appropriate for judicial enforcement are sought to be pruned and inconspicuous.”26 His view was precisely the
vindicated. Then, too, it does not approach constitutional opposite. Thus: “The power of constitutional review, to be
questions with dogmatism or apodictic certainty nor view exercised by some part of the government, is implicit in the
them from the shining cliffs of perfection. This is not to say conception of a written constitution delegating limited
though that it is satisfied with an empiricism untroubled powers. A written constitution would promote discord
by the search for jural consistency and rational coherence. rather than order in society if there were no accepted
A balance has to be struck. So juridical realism requires. authority to construe it, at the least in case of conflicting
Once allowance made that for all its care and action by different branches of government or of
circumspection this Court manned by human beings constitutionally unauthorized governmental action against
fettered by fallibility, nonetheless earnestly and sincerely individuals. The limitation and separation of powers, if
striving to do right, the public acceptance of its vigorous they are to survive, require a procedure for independent
pursuit of the task of assuring that the Constitution be mediation and construction to reconcile the inevitable
obeyed is easy to understand. It has not in the past shirked disputes over the boundaries of constitutional power which
its responsibility to ascertain whether there has been arise in the process of government.”27 More than that, he
compliance with and fidelity to constitutional took pains to emphasize:
requirements. Such is the teaching of a host of cases from
_______________
_______________ 23 63 Phil. 139 (1936).
21 65 Phil. 56 (1937). 24 L-35925, January 22, 1973.
22 Ibid., 96. 25 Rostow, The Democratic Character of Judicial Review in Selected
Essays on Constitutional Law 1938 1962, 1, 2 (1963).
317
26 Ibid.
27 Ibid, 3.
VOL. 50, MARCH 31, 1973 317
318

Angara v. Electoral Commission23 to Planas v. Commission
on Elections.24 It should continue to exercise its Javellana vs. The Executive Secretary
jurisdiction, even in the face of a plausible but not
sufficiently persuasive insistence that the matter before it “Whether another method of enforcing the Constitution
is political. could have been devised, the short answer is that no such
Nor am I persuaded that the reading of the current drift method developed. The argument over the constitutionality
in American legal scholarship by the Solicitor-General and of judicial review has long since been settled by history.
his equally able associates presents the whole picture. On The power and duty of the Supreme Court to declare

statutes or executive action unconstitutional in appropriate this: you must first enable the government to control the
cases is part of the living Constitution. ‘The course of governed; and in the next place oblige it to control itself.’ ”30
constitutional history,’ Mr. Justice Frankfurter recently There is thus an inevitability to the flowering of judicial
remarked, ‘has cast responsibilities upon the Supreme review. Could it be that the tone of discontent apparent in
Court which it would be “stultification” for it to evade.’ ”28 the writings of eminent authorities on the subject evince at
Nor is it only Dean Rostow who could point Frankfurter, the most fears that the American Supreme Court might
reputed to belong to the same school of thought opposed to overstep the bounds allotted to the judiciary? It cannot be a
judicial activism, if not its leading advocate during his long denial of the fitness of such competence being vested in
stay in the United States Supreme Court, as one fully judges and of their being called upon to fulfill such a trust
cognizant of the stigma that attaches to a tribunal which whenever appropriate to the decision of a case before them.
neglects to meet the demands of judicial review. There is a That is why it has been correctly maintained that
statement of similar importance from Professor Mason: “In notwithstanding the absence of any explicit provision in the
Stein v. New YorkFrankfurter remarked, somewhat self- fundamental law of the United States Constitution, that
consciously perhaps, that the ‘duty of deference cannot be distinguished American constitutional historian, Professor
allowed imperceptibly to slide into abdication.’ ”29 Professor Corwin, could rightfully state that judicial review “is
Konefsky, like Dean Rostow, could not accept simply incidental to the power of courts to interpret the
characterization of judicial review as undemocratic. Thus law, of which the Constitution is part, in connection with
his study of Holmes and Brandeis, the following appears: the decision of cases.”31 This is not to deny that there are
“When it is said that judicial review is an undemocratic those who would place the blame or the credit, depending
feature of our political system, it ought also to be upon one’s predilection, on Marshall’s epochal opinion in
remembered that architects of that system did not equate Marbury v. Madison.32 Curtis belonged to that persuasion.
constitutional government with unbridled majority rule. As he put it: “The problem was given no answer by the
Out of their concern for political stability and security for Constitution. A hole was left where the Court might drive
private rights, * * *, they designed a structure whose in the peg of judicial supremacy, if it could. And that is
keystone was to consist of barriers to the untrammeled what John Marshall did.”33 At any rate there was
exercise of power by any group. They perceived no something in the soil of American juristic thought resulting
contradiction between effective government and in this tree of judicial power so precariously planted by
constitutional checks. To James Madison, who may Marshall striking deep roots and showing wonderful
legitimately be regarded as the philosopher of the vitality and hardiness. It now dominates the American
Constitution, the scheme of mutual restraints was the best legal scene. Through it, Chief Justice Hughes, before
answer to what he viewed as the chief problem in erecting occupying that exalted position, could state in a lecture:
a system of free representative government: ‘In framing a “We are under a Constitution, but the Constitution is what
government which is to be administered by men over men, the judges say it is * * *.”34 The above statement is more
the great difficulty lies in 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
28 Ibid., 3-4. The decision of Justice Frankfurter referred to is that of judicial restraint school of
Rochin v. People of California, 342 US 165 (1952).
29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The _______________
words of Justice Frankfurter found in his opinion in Stein v. New York, 30 Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
346 US 156 (1953). 31 Corwin, Judicial Review in I Selected Essays on Constitutional Law,
449, 450 (1938).
319
32 1 Cranch 137 (1803).
33 Curtis, Lions Under the Throne, 12 (1947).
VOL. 50, MARCH 31, 1973 319 34 Addresses and Papers of Charles Evans Hughes, 139-140 (1908).


321
VOL. 50, MARCH 31, 1973 321

thought, this meaningful query: “The Constitution
nowhere provides that it shall be what the judges say it is. Javellana vs. The Executive Secretary
How, did it come about that the statement not only could
be but could become current as the most understandable are uncontested, for many the very staple of what is
comprehensive summary of American Constitutional law?” essentially political, certainly goes even further than the
35
It is no wonder that Professor Haines could pithily and authoritative Philippine decision of Vera v. Avelino,42 It
succinctly sum up the place of the highest American does look then that even in the United States, the plea for
tribunal in the scheme of things in this wise: “The Supreme judicial self-restraint, even if given voice by those
Court of the United States has come to be regarded as the competent in the field of constitutional law, has fallen on
unique feature of the American governmental system.”36 deaf ears. There is in the comments of respondents an
Let me not be misunderstood. There is here no attempt to excerpt from Professor Freund quoting from one of his
close one’s eyes to a discernible tendency on the part of essays appearing in a volume published in 1968. It is not
some distinguished faculty minds to look askance at what without interest to note that in another paper, also
for them may be inadvisable extension of judicial authority. included therein, he was less than assertive about the
For such indeed is the case as reflected in two leading cases necessity for self-restraint and apparently mindful of the
of recent vintage, Baker v. Carr,37 decided in 1962 and claims of judicial activism. Thus: “First of all, the Court has
Powell v. MacCormack,38 in 1969, both noted in the opinion a responsibility to maintain the constitutional order, the
of the Chief Justice. The former disregarded the warning of distribution of public power, and the limitations on that
Justice Frankfurter in Colegrove v. Green39 about the power.”43 As for Professor Bickel, it has been said that as
American Supreme Court declining jurisdiction on the counsel for the New York Times in the famous Vietnam
question of apportionment as to do so would cut very deep papers case,44 he was less than insistent on the American
into the very being of Congress.”40 For him, the judiciary Supreme Court exercising judicial self-restraint. There are
“ought not to enter this political thicket.” Baker has since signs that the contending forces on such question, for some
then been followed; it has spawned a host of cases.41 an unequal contest, are now quiescent. The fervor that
Powell, on the question of the power of a legislative body to characterized the expression of their respective points of
exclude from its ranks a person whose qualifications 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,
35 Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949). prejudices one might even say, entertained. At least what
36 Haines, Charles Grove, The Role of the Supreme Court in American once was fitly characterized as the booming guns of
Government and Politics, 1789-1835, 3 (1960). rhetoric, coming from both directions, have been muted. Of
37 369 US 186. late, scholarly disputations have been centered on the
38 395 US 486. standards that should govern the exercise of the power of
39 328 US 549 (1946). judicial review. In his celebrated Holmes lecture in 1959 at
40 Ibid., 556. the Harvard Law School, Professor Wechsler advocated as
41 Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. (1964); basis for decision what he termed neutral principles of
Wright v. Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds constitutional law.45 It has brought forth a plethora of law
v. Sims, 377 US 533, 12 L ed 2d 506, 84 S Ct 1362 (1964); WMCA v.
Lomenzo, 377 US 633, 12 L ed 2d 568, 84 S Ct. (1964); Maryland _______________
Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442 (1964); 376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105,
Davis v. Mann, 377 US 678, 12 L ed 2d 609, 84 S Ct. 1453 (1964); Roman 18 L ed 2d 650, 87 S Ct. 1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed
v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct. 1462 (1964); Lucas v. 2d 656, 87 S Ct. 1554 (1967).
Colorado General Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472 42 77 Phil. 192 (1946).
(1964); Fortson v. Dorsey, 379 us 433, 13 L ed 2d 401, 85 S Ct. 498 (1965); 43 Ibid., 56.
Burns v. Richardson, 384 US 73, 16 L ed 2d
44 New York Times Company v. United States, 29 L ed. 822 (1971). Neutrality in Constitutional Adjudication, 27U. Chi. L. Rev. 661 (1960);
45 Wechsler, Toward Neutral Principles of Constitutional Law, 72 Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L.
Harv. Law Review 77 (1959). It is the first essay in his Principles, Politics Rev. 571 (1960); Hart, Forward, The Time Chart of the Justices, 73 Harv.
and Fundamental Law. L. Rev. 84 (1959); Pollak, Racial Domination and Judicial Integrity: A
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959).
322
47 Cahn, Supreme Court and Supreme Law, 40 (1954).
323
VOL. 50, MARCH 31, 1973 323
review articles, the reaction ranging from guarded Javellana vs. The Executive Secretary
conformity to caustic criticism.46 There was, to be sure, no
clear call to a court in effect abandoning the responsibility Senators Lorenzo M. Tañada and Jovito Salonga at the
incumbent on it to keep governmental agencies within van, rather than the advocacy of the Solicitor-General,
constitutional channels. The matter has been put in possess the greater weight and carry persuasion. So much
temperate terms by Professor Frank thus: “When then for the invocation of the political question principle as
allowance has been made for all factors, it nevertheless a bar to the exercise of our jurisdiction.
seems to me that the doctrine of political questions ought to 3. That brings me to the issue of the validity of the
be very sharply confined to where the functional reasons ratification. The crucial point that had to be met is whether
justify it and that in a give involving its expansion there Proclamation No. 1102 manifests fidelity to the explicit
should be careful consideration also of the social terms of Article XV. There is, of course, the view not
considerations which may militate against it. The doctrine offensive to reason that a sense of the realities should
has a certain specious charm because of its nice temper the rigidity of devotion to the strict letter of the text
intellectualism and because of the fine deference it permits to allow deference to its spirit to control. With due
to expertise, to secret knowledge, and to the prerogatives of recognition of its force in constitutional litigation,48 if my
others. It should not be allowed to grow as a merely reading of the events and the process that led to such
intellectual plant.”47 proclamation, so clearly set forth in the opinion of the Chief
It is difficult for me at least, not to be swayed by Justice, is not inaccurate, then it cannot be confidently
appraisal, coming from such impeccable sources of the asserted that there was such compliance. It would be to
worth and significance of judicial review in the United rely on conjectural assumptions that did founder on the
States. I cannot resist the conclusion then that the views rock of the undisputed facts. Any other conclusion would,
advanced on this subject by distinguished counsel for for me, require an interpretation that borders on the
petitioners, with 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
46 The principal articles are: Pollak, Constitutional Adjudication: unchanged, but it is not, to borrow from Learned Hand,
Relative or Absolute Neutrality, 11 J. Pub. L. 48 (1962); Rostow, American that eminent jurist, a rubber band either. It would be
Legal Realism and the Sense of Profession, 34 Rocky Mt. L. Rev. 123, 136- unwarranted in my view then to assert that the
46 (1962); Henkin, Some Reflections on Current Constitutional requirements of the 1935 Constitution have been met.
Controversy, 109 U. Pa. L. Rev. 637 (1961); Henson, A Criticism of There are American decisions,49 and they are not
Criticism: In re Meaning, 29 Fordham L. Rev. 553 (1961); Miller, A Note
on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1961), _______________
Wright, The Supreme Court Cannot be Neutral, 40 Texas L. Rev. 599 48 Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 (1957).
(1961); Arnold, Professor Hart’s Theology, 73 Harv. L. Rev. 1298 (1960); 49 Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss.
Black, The Lawfulness of the Segration Decisions, 69 Yale L. J. 421 650 (1856); Penn v. Tollison, 26 Ark. 545 (1871); Koehler v. Hill, 60 Iowa
(1960); Griswold, Of Time and Attitudes: Professor art and Judge Arnold, 543, 14 NW 738 (1883); McMillan v. Blattner, 67 Iowa 287, 25 NW 245
74 Harv. L. Rev. 81 (1960); Karst, Legislative Facts in Constitutional (1885); State v. Davis, 2D Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15
Litigation, 1960 Supreme Court Rev. 75; Miller and Howell The Myth of Mont. 8, 37 Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93, 30 SW 526
(1895); State v. Powell, 77 Miss. 543, 27 So. 927 (1900); State v. So. 231 (1940); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); Pearson
Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind. 104, v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmer v. Dunn, 216 SC 558,
59 NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); 59 SE 158 (1950).
Willis v. Kalbach, 109 Va. 475, 64 SE 342 (1909); People ex rel. Swift v. 50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); Senate File
Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v. Speer, 156 Ky. 783, No. 31, 25 Neb. 864, 41 NW 981 (1889); State v. Grey, 21 Nev. 378, 32 Pac.
162 SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915); State 190 (1893); Nesbit v. People, 19 Colo. 441, 36 Pac. 221 (1894); Hays v.
v. Marcus, 160 Wis. 354, 152 NW 419 (1915); State v. Campbell, 94 Ohio Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW
St. 403, 115 NE 29 (1916); In re Opinion of Justices, 226 Mars. 607, 115 756 (1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901); Gabbert v.
NE 921 (1917); Scott v. Vouchan, 202 Chicago, R.I. Ry. Co. 171 Mo. 84, 70 SW (1902); People v. Sours, 31 Colo.
369, 102 74 P. 167 (1903); People v. Loomis, 135 Mich. 556, 98 NW 262
324
(1904); West v. State, 50 Fla. 154,
325
VOL. 50, MARCH 31, 1973 325
few in number, which require that there be obedience to Javellana vs. The Executive Secretary
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 Even if the assumption be indulged in that Article XV is
evasion is tolerated. Submission to its commands can be not phrased in terms too clear to be misread, so that this
shown only if each and every word is given meaning rather Court is called upon to give meaning and perspective to
than ignored or disregarded. This is not to deny that a what could be considered words of vague generality,
recognition conclusive effect attached to the electorate pregnant with uncertainty, still whatever obscurity it
manifesting its will to vote affirmatively on the possesses is illumined when the light of the previous
amendments proposed poses an obstacle to the judiciary legislation is thrown on it. In the first Commonwealth Act,
51
being insistent on the utmost regularity. Briefly stated, submitting to the Filipino people for approval or
substantial compliance is enough. A great many American disapproval certain amendments to the original
State decisions may be cited in support of such a doctrine.
50
_______________
39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110 NW 113 (1907);
_______________ Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re
Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371 Mcconaughy, 106 Minn. 392, 119 NW 408 (1909); Fletcher v. Gifford, 20
(1921); Switzer v. State, 103 Ohio St. 306, 133 NE 552 (1921); Johnson v. Idaho 18, 115 P. 824 (1911); Hammond v. Clark, 136 Ga. 313, 71 SE 479
Craft, 87 So. 375, 205 Ala. 386 (1921); In re Opinion of the Justices, 237 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912); Cudihee v.
Mars. 589, 130 NE 202 (1921); Power v. Robertson, 130 Miss. 188, 93 So. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 Wash. 332,
769 (1922); Hamilton v. Deland, 191 NW 829, 221 Mich. 541 (1923); In re 136 P. 374 (1913); Tabor v. City of Walla Walla, 77 Wash. 579, 137 P. 1040
Initiative Petition, 89 Okl. 124, 214 P. 186 (1923); Armstrong v. King, 281 (1914); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey v.
Pa. 207, 126 A. 263 (1924); McAdams v. Henley, 169 Ark. 97, 273 SW 355 Persinger, 43 Okl. 41,141 P. 13 (1914); Cress v. Estes, 43 Okl. 213 P. 411
(1925); Heinitsh v. Floyd, 130 SC 434, 126 SE 336 (1925); State v. (1914); Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor,
Zimmerman, 187 Wis. 180, 204 NW 803 (1925); Brown v. City of New 117 Ark. 465, 175 SW 40 (1915); Jones v. McDade, 200 Ala. 230, 75 So.
York, 125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel. Bahns v. City of 988 (1917); State v. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex Parte
New Orleans, 163 La. 777 So. 718 (1927); Duncan v. Record Pub. Co., 145 Ming, 42 Nev. 472, 181 P. 319 (1919); Lee V. Price, 54 Utah, 474, 181 P.
SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517, 283 P. 532 948 (1919), Erwin v. Nolan, 280 Mo. 401, 217 SW 752 (1922); Boyd v.
(1929); School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, Olcott, 102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston, 116 S.C.
247 NW 474 (1933); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); In re 412, 107 SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532
Opinion to Governor, 55 R.I. 56, 178 A. 433 (1935); State ex rel Landis v. (1922); Brawner v. Curran, 141 Ind. 586, 119 A. 250 (1922); Fahey v.
Thompson, 120 Fla. 860,163 So. 270 (1935); Tausig v. Lawrence, 328 Pa. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephens, 155 Ga. 529,
408, 197 A. 235 (1938); Downs v. City of Bromingham, 240 Ala. 177, 198 117 SE 439 (1923); Manos v. State, 98 Tax. Cr. 87, 263 SW 310 (1924);
State v. Zimmermann, 187 Wis. 180, 208 NW 803 (1925); Taylor v. King, 52 Ibid., Section 3.
284 Pa. 235, 130 A. 407 (1925); Board of Liquidation of State Debt of 53 Commonwealth Act No. 517 (1940).
Louisiana v. Whitney-Central Trust and Savings Bank, 168 La. 560, 122 54 Article VI of the 1935 Constitution.
So. 850 (1929); State v. Cline, 118 Neb. 150, 224 NW 6 (1929); California 55 Article VII of the 1935 Constitution.
Teacher’s Ass’n. v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934); Collier v. 56 It is to be noted that under Commonwealth Act No. 607 (1940),
Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. subsequently amended by Commonwealth Act No. 657 (1940), there was a
Commission v. Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, statutory creation of an independent Commission on Elections.
182 Ga. 524, 186 SE 420 (1936); Doody v. State ex rel. Mobile County, 233 57 Section 3, Commonwealth Act No. 517.
Ala. 287, 171 So. 504 (1937); Swanson v. State, 132 Neb. 82, 271 NW 264 58 Republic Act No. 73 (1946).
(1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939); Graham v. Jones, 59 Section 3 of Republic Act 73 reads as follows: “The provisions of
198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No. 224, 197 Okl. Commonwealth Act Numbered Three Hundred and fifty-seven, otherwise
432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW known as the Election Code, and Commonwealth Numbered Six hundred
2d 569 (1947); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948). and fifty-seven, entitled “An Act to Reorganize the Commission on
51 Commonwealth Act No. 492 (1939). Elections,” is so far as they are not inconsistent herewith, are hereby
made applicable to the election provided for in this Act.”
326
60 Republic Act 4913 (1967).
61 Section 3 of Republic Act 4913 reads thus: “The provisions of
327
VOL. 50, MARCH 31, 1973 327

ordinance appended to the 1935 Constitution, it was
made that the election for such purpose was to “be Javellana vs. The Executive Secretary
conducted in conformity with the provisions of the Election
Code insofar as the same may be applicable.”52 Then came consistent course of interpretation followed by the
the statute,53 calling for the plebiscite on the three 1940 legislative branch. It is most persuasive, if not controlling.
amendments providing for the plebiscite on the three 1930 The restraints thus imposed would set limits to the
amendments providing for a bicameral Congress or a Presidential action taken, even on the assumption that
Senate and a House of Representatives to take the place of either as an agent of the Constitutional Convention or
a unicameral National Assembly,54 reducing the term of under his martial law prerogatives, he was not devoid of
the President to four years but allowing his re-election with power to specify the mode of ratification. On two vital
the limitation that he cannot serve more than eight points, who can vote and how they register their will,
consecutive years,55 and creating an independent Article XV had been given a definitive construction. That is
Commission on Elections.56 Again, it was expressly why I fail to see sufficient justification for this Court
provided that the election “shall be conducted in conformity affixing the imprimatur of its approval on the mode
with the provisions of the Election Code in so far as the employed for the ratification of the revised Constitution as
same may be applicable.”57 The approval of the present reflected in Proclamation No. 1102.4. Nor is the matter
parity amendment was by virtue of a Republic Act58 which before us solely to be determined by the failure to comply
specifically made applicable the then Election Code.59 with the requirements of Article XV. Independently of the
There is a similar provision in the legislation,60 which in lack of validity of the ratification of the new Constitution, if
cotemplation of the 1971 Constitutional Convention, saw to it be accepted by the people, in whom sovereignty resides
it that there be an increase in the membership of the House according to the Constitution,62 then this Court cannot
of Representatives a maximum of one hundred eighty and refuse to yield assent to such a political decision of the
assured the eligibility of senators and representatives to utmost gravity, conclusive in its effect. Such a fundamental
become members of such constituent body without principle is meaningless if it does not imply, to follow
forfeiting their seats, as proposed amendments to be voted Laski, that the nation as a whole constitutes the “single
on in the 1967 elections.61 That is the 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 and the election of delegates. It provided that before any
that the Philippines is a republican state could be traced form of constitution made by them should become
back to Athens and to Rome, it is no doubt true, as McIver operative, it should be submitted to the vote of the state
pointed out, that only with the recognition of the nation as and ratified by a majority of those voting. The constitution
the separate political unit in public law is there the then in force authorized the legislature, the preliminary
juridical recognition of the people composing it “as the steps having been taken, to call a convention “for the
source of political authority.”64 From them, as Corwin 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
Republic Act Numbered One hundred eighty, as amended, insofar as they convention met in September, 1890. By April, 1891, it
are not inconsistent herewith, are made applicable to the election provided completed a draft of a constitution, submitted it to a
for in this Act.” It is to be remembered that in the plebiscite held, the two popular vote, and then adjourned until September
proposals last. Cf. on this point, Gonzales v. Commission on Elections, L- following. When the convention reassembled, the delegates
28196, Nov. 9, 1967, 21 SCRA 774. made numerous changes in instrument. As thus amended,
62 The 1935 Constitution provides: “The Philippines is a republican it was promulgated by the convention of September 28,
state. Sovereignty resides in the people and all government authority 1891, as the new constitution. An
emanates from them.” Article II, Section 1.
63 Laski, Grammar of Politics, 4th ed., 34 (1937). _______________
64 McIver, The Web of Government, 84 (1947). 65 Corwin, The Higher Law Background of American Constitutional
Law, in 1 Selected Essays on Constitutional Law 3 (1938).
328
66 92 Ky. 589, 18 SW 522.
329
VOL. 50, MARCH 31, 1973 329
did stress, emanate “the highest possible embodiment of Javellana vs. The Executive Secretary
human will,”65 which is supreme and must be obeyed. To
avoid any confusion and in the interest of clarity, it should action was brought to challenge its validity. It failed in
be expressed in the manner ordained by law. Even if such the lower court. In affirming such judgment dismissing the
is not the case, however, once it is manifested, it is to be action, Chief Justice Holt stated: “If a set of men, not
accepted as final and authoritative. The government which selected by the people according to the forms of law, were to
is merely an agency to register its commands has no choice formulate an instrument and declare it the constitution, it
but to submit. Its officials must act accordingly. No agency would undoubtedly be the duty of the courts to declare its
is exempt such a duty, not even this Court. In that sense, work a nullity. This would be revolution, and this the
the lack of regularity in the method employed to register its courts of the existing government must resist until they are
wishes is fatal in its consequences. Once the fact of overturned by power, and a new government established.
acceptance by people of a new fundamental law is made The convention, however, was the offspring of law. The
evident, the judiciary is left with no choice but to accord it instrument which we are asked to declare invalid as a
recognition. The obligation to render it obeisance falls on constitution has been made and promulgated according to
the courts as well. the forms of law. It is a matter of current history that both
There are American State decisions that enunciate such the executive and legislative branches of the government
a doctrine. While certainly not controlling, they are not have recognized its validity as a constitution, and are now
entirely bereft of persuasive significance. In Miller v. daily doing so. * * * While the judiciary should protect the
Johnson,66 decided in 1892, it was set forth in the opinion rights of the people with great care and jealousy, because
of Chief Justice Holt that on May 3, 1890, an act was this is its duty, and also because; in times of great popular
passed in Kentucky, providing for the calling of a excitement, it is usually their last resort, yet it should at
convention for the purpose of framing a new constitution 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 citizens of Virginia owe their obedience and loyal
would be likely in this instance, if the power of the allegiance.”69
judiciary permitted, and its duty requires, the overthrow of It cannot be plausibly asserted then that premises valid
the work of the convention.”67 In Taylor v. Commonwealth, in law are lacking for the claim that the revised
68
a 1903 decision, it was contended that the Virginia Constitution has been accepted by the Filipino people.
Constitution reclaimed in 1902 is invalid as it was ordained What is more, so it has been argued, it is not merely a case
and promulgated by the convention without being of its being implied. Through the Citizens Assemblies,
submitted for ratification or rejection by the people. The there was a plebiscite with the result as indicated in
Court rejected such a view. As stated in the opinion of Proclamation No. 1102. From the standpoint of
Justice Harrison: “The Constitution of 1902 was ordained respondents then, they could allege that there was more
and proclaimed by a convention duly called by direct vote of than just mere acquiescence by the sovereign people. Its
the people of the state to revise and amend the will was thus expressed formally and unmistakably. It may
Constitution of 1869. The result of the work of the be added that there was nothing inherently objectionable in
convention has been recognized, accepted, and acted upon the informal method followed in ascertaining its
as the only valid Constitution of the state by the Governor preference. Nor is the fact that Filipinos of both sexes
in swearing fidelity to it and proclaiming it, as directed above the age of fifteen were given the opportunity to vote
thereby; by the Legislature in its formal official act to be deplored. The greater the base of mass participation,
adopting a joint resolution, July 15, 1902, recognizing the the more there is fealty to the democratic concept. It does
Constitution ordained by the convention which assembled logically follow likewise that such circumstances being
in the city of Richmond on the 12th day of June, 1901, as conceded, then no justifiable question may be raised. This
the 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
67 Ibid., 523. an aspect that is judicial, an inquiry may be had as to
68 101 Va. 829, 44 SE 754. whether such indeed was the result. This is
330
_______________
69 Ibid., 755. A similar approach may be noted in Arie v. State, 23 Okl.
330 SUPREME COURT REPORTS ANNOTATED 166, 100 P. 23 (1909) and Hammond v. Clark, 136 Ga. 313, 71 SE 479
(1911).
331
Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and
VOL. 50, MARCH 31, 1973 331
the people in their primary capacity by peacefully accepting
it and acquiescing in it, by registering as voters under it to Javellana vs. The Executive Secretary
the extent of thousands throughout the state, and by
voting, under its provisions, at a general election for their no more than what the courts do in election cases. There
representatives in the Congress of the United States. The are other factors to bear in mind. The fact that the
Constitution having been thus acknowledged and accepted President so certified is well-nigh conclusive. There is in
by the office administering the government and by the addition the evidence flowing from the conditions of peace
people of the state, and there being no government in and stability. There thus appears to be conformity to the
existence under the Constitution of 1869 opposing or existing order of things. The daily course of events yields
denying its validity, we have no difficulty in holding that such a conclusion. What is more, the officials under the
the Constitution in question, which went into effect at noon 1935 Constitution, including practically all Representatives
on the 10th day of July, 1902, is the only rightful, valid, and a majority of the Senators, have signified their assent
and existing Constitution of this state, and that to it all the 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 earmarks of being responsive to the dominant needs of the
petitions being dismissed for such ascertainment of popular times. It represents an outlook cognizant of the tensions of
will did take place during a period of martial law. It would a turbulent era that is the present. That is why for some
have been different had there been that freedom of debate what was done represented an act of courage and faith,
with the least interference, thus allowing a free market of coupled with the hope that the solution arrived at is a
ideas. If it were thus, it could be truly said that there was harbinger of a bright and rosy future.
no barrier to liberty of choice. It would be a clear-cut It is such a comfort then that even if my appraisal of the
decision either way. One could be certain as to the fact of situation had commanded a majority, there is not, while
the acceptance of the new or of adherence to the old. This is these lawsuits are being further considered, the least
not to deny that votes are cast by individuals with their interference, with the executive department. The President
personal concerns uppermost in mind, worried about their in the discharge of all his functions is entitled to obedience.
immediate needs and captive to their existing moods. That He remains commander-in-chief with all the constitutional
is inherent in any human institution, much more so in a powers it implies. Public officials can go about their
democratic polity. Nor is it open to any valid objection accustomed tasks in accordance with the revised
because in the final analysis the state exists for the Constitution. They can pursue even the tenor of their ways.
individuals who in their collectivity compose it. Whatever They are free to act according to its tenets. That was so
be their views, they are entitled to respect. It is difficult for these past few weeks, even petitions were filed. There was
me, however, at this stage to feel secure in the conviction not at any time any thought of any restraining order. So it
that they did utilize the occasion afforded to give was before. That is how things are expected to remain even
expression to what was really in their hearts. This is not to if the motions to dismiss were not granted. It might be
imply that such doubt could not be dispelled by evidence to asked though, suppose the petitions should prevail? What
the contrary. If the petitions be dismissed however, then then? Even so, the decision of this Court need not be
such opportunity is forever lost. executory right away. Such a disposition of a case before
5. With the foregoing legal principles in mind, I find this Court is not novel. That was how it was done in the
myself unable to join the ranks of my esteemed brethren Emergency Powers Act controversy.70 Once compliance is
who vote for the dismissal of these petitions. I cannot yield had with the requirements of Article XV of the 1935
an affirmative response to the plea of respondents to Constitution, to assure that the coming force of the revised
consider the matter closed, the proceedings terminated charter is free from any taint of infirmity, then all doubts
once and for all. It is not an easy decision to reach. It has are set at rest.
occasioned deep thought and considerable soul-searching.
For there are countervailing _______________
70 Araneta v. Dinglasan, 84 Phil. 368 (1949).
332
333

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, For some, to so view the question before us is to be
there is an auspicious beginning for further progress. Then caught in a web of unreality, to cherish illusions that
too it could resolve what appeared to be the deepening cannot stand the test of actuality. What is more, it may
contradictions of political life, reducing at times give the impression of reliance on what may, for the
governmental authority to near impotence and imparting a practical man of affairs, be no more than gossamer
sense of disillusionment in democratic processes. It is not distinctions and sterile refinements unrelated to events.
too much to say therefore that there had indeed been the That may be so, but I find it impossible to transcend what
revision of a fundamental law to vitalize the very values for me are the implications of traditional constitutionalism.
out of which democracy grows. It is one which has all the This is not to assert that an occupant of the bench is bound
to apply with undeviating rigidity doctrines which may The unprecedented and precedent-setting issue
have served their day. He could at times even look upon submitted by petitioners for the Court’s resolution is the
them as mere scribblings in the sands to be washed away validity and constitutionality of Presidential Proclamation
by the advancing tides of the present. The introduction of No. 1102 issued on January 17, 1973, certifying and
novel concepts may be carried only so far though. As proclaiming that the Constitution proposed by the 1971
Cardozo put the matter: “The judge, even when he is free, Constitutional Convention “has been ratified by an
is still not wholly free. He is not to innovate at pleasure. He overwhelming majority of all the votes cast by the members
is not a knight-errant, roaming at will in pursuit of his own of all the Barangays (Citizens Assemblies) throughout the
ideal of beauty or of goodness. He is to draw his inspiration Philippines, and has thereby come into effect.”
from consecrated principles. He is not to yield to spasmodic More specifically, the issue submitted is whether the
sentiment, to vague and unregulated benevolence. He is to purported ratification of the proposed Constitution by
exercise a discretion informed by tradition, methodized by means of the Citizens Assemblies has substantially
analogy, disciplined by system, and subordinated to “the complied with the mandate of Article XV of the existing
primordial necessity of order in the social life.” Wide Constitution of 1935 that duly proposed amendments
enough in all conscience is the field of discretion that thereto, in toto or parts thereof, “shall be valid as part of
remains.”71 Moreover what made it difficult for this Court this Constitution when approved by a majority of the votes
to apply settled principles, which for me have not lost their cast at an election at which the amendments are
validity, is traceable to the fact that the revised submitted to the people for their ratification.”1
Constitution was made to take effect immediately upon A necessary corollary issue is whether the purported
ratification. If a period of time were allowed to elapse ratification of the proposed Constitution as signed on
precisely to enable the judicial power to be exercised, no November 30, 1972 by the 1971 Constitutional Convention
complication would have arisen. Likewise, had there been may be said also to have substantially complied with its
only one or two amendments, no such problem would be own mandate that “(T)his Constitution shall take
before us. That is why I do not see sufficient justification immediately upon its ratification by a majority of the votes
for the orthodoxies of constitutional law not to operate. cast in a plebiscite called for the purpose and except as
Even with full realization then that the approach herein provided, shall supersede the Constitution of
pursued is not all that it ought to have been and the Nineteen hundred and thirty-five and all amendments
process of reasoning not without its shortcomings, the basic thereto.”2
premises of a constitutional democracy, as I understand Respondents contend that “(A)lthough apparently what
them and as set forth in the preceding pages, compel me to is
vote the way I did.
_______________
_______________ 1 Section 1, which is the lone section of Art. XV; italics supplied.
71 Cardozo, The Nature of the Judicial Process, 141 (1921). 2 Article XVII, section 16, proposed Constitution of Nov. 30, 1972;
italics supplied.
334
335


Teehankee, J., dissenting: sought to be annulled is Proclamation No. 1102, what
The masterly opinion of the Chief Justice wherein he petitioners really seek to invalidate is the new
painstakingly deals with the momentous issues of the cases Constitution,” and their actions must be dismissed,
at bar in all their complexity commands my concurrence. because:
I would herein make an exposition of the fundamental
reasons and considerations for my stand. — “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 the government. It must be added that ... they are no less binding
people; upon the people.”7
— “(T)he fact of approval of the new Constitution by an — In the same Tolentino case, this Court further proclaimed
overwhelming majority of the votes cast as declared and that “as long as any amendment is formulated and submitted
certified in Proclamation No. 1102 is conclusive on the courts; under the aegis of the present Charter, any proposal for such
— “Proclamation No. 1102 was issued by the President in the amendment which is not in conformity with the letter, spirit and
exercise of legislative power under martial law. x x x intent of the Charter for effecting amendments, cannot receive the
Alternatively, or contemporaneously, he did so as “agent” of the sanction of this Court.”8
Constitutional Convention”; — As continues to be held by a majority of this Court, proposed
— “alleged defects, such as absence of secret voting, amendments to the Constitution “should be ratified in only one
enfranchisement of persons less than 21 years, non way, that is, in an election or plebiscite held in accordance with
supervision (by) the Comelec are matters not required by Article law and participated in only by qualified and duly registered
XV of the 1935 Constitution”; (sic) voters”9 and under the supervision of the Commission on
— “after ratification, whatever defects there might have been Elections.10
in the procedure are overcome and mooted (and muted) by the fact — Hence, if the Court declares Proclamation 1102 null and
of ratification”; and void because on its face, the purported ratification of the proposed
— “(A)ssuming finally that Article XV of the 1935 Constitution Constitution has not faithfully nor substantially observed nor
was not strictly followed, the ratification of the new Constitution complied with the mandatory requirements of Article XV of the
must nonetheless be respected. For the procedure outlined in (1935) Constitution, it would not be “invalidating” the proposed
Article XV was not intended to be exclusive of other procedures, new Constitution but would be simply declaring that the
especially one which contemplates popular and direct announced fact of ratification thereof by means of the Citizens
participation of the citizenry x x x.”3 Assemblies
To test the validity of respondents’ submittal that the _______________

Court, in annulling Proclamation No. 1102 would really be 4 Respondents’ memo dated March 2, 1973, p. 8; italics supplied.
“invalidating the new Constitution,” the terms and 5 Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).
premises of the issues have to be defined. 6 Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
7 Resolution on motion for reconsideration in Tolentino Comelec, L-34150;
— Respondents themselves assert that “Proclamation No. 1102
dated Nov. 4, 1971, at page 3, per Barredo, J. with seven Justices concurring;
... is plainly merely declaratory of the fact that the 1973
italics supplied.
8 Idem, at page 4, italics supplied.
_______________
9 Joint opinion of JJ. Makalintal and Castro, p. 153.
3 All quotations from respondents’ memo of arguments dated March 2, 1973,
10 Article X, sec. 1 of the Constitution entrusts “exclusive charge” of the
pp. 2-5; italics supplied.
conduct of elections to the Comelec. See also the Election Code of 1971.
336
337

VOL. 50, MARCH 31, 1973 337
Constitution has been ratified and has come into force.4

referendums does not pass the constitutional test and that the
— The measure of the fact of ratification is Article XV of the
proposed new Constitution has not constitutionally come into
1935 Constitution. This has been consistently held by the Court in
existence.
the Gonzales5 and Tolentino6 cases.
— Since Proclamation 1102 is acknowledged by respondent to
— In the Tolentino case, this Court emphasized “that the
be “plainly merely declaratory” of the disputed fact of ratification,
provisions of Section 1 of Article XV of the Constitution, dealing
they cannot assume the very fact to be established and beg the
with the procedure or manner of amending the fundamental law
issue by citing the self-same declaration as proof of the purported
are binding upon the Convention and the other departments of
ratification therein declared.

What complicates the cases at bar is the fact that the been issued in good faith and with the best of intentions by
proposed 1972 Constitution was enforced as having three successive Presidents, and some of them may have
immediately taken effect upon the issuance on January 17, already produced extensive effects in the life of the nation.
1973 of Proclamation 1102 and the question of whether We have, for instance, Executive Order No. 73, issued on
“confusion and disorder in government affairs would (not) November 12, 1945, appropriating the sum of P6,750,000
result” from a judicial declaration of nullity of the for public works; Executive Order No. 86, issued on
purported ratification is raised by the Solicitor-General on January 7, 1946, amending a previous order regarding the
behalf of respondents. organization of the Supreme Court; Executive Order No. 89,
A comparable precedent of great crisis proportions is issued on January 1, 1946, reorganizing Courts of First
found in the Emergency Powers cases,11 wherein the Court Instance; Executive Order No. 184, issued on November 19,
in its Resolution of September 16, 1949 after judgment was 1948, controlling rice and palay to combat hunger; and
initially not obtained on August 26, 1949 for lack of the other executive orders appropriating funds for other
required six (6) votes, finally declared in effect that the pre- purposes. The consequences of a blanket nullification of all
war emergency powers delegated by Congress to the these executive orders will be unquestionably serious and
President, under Commonwealth Act 671 in pursuance of harmful. And I hold that before nullifying them, other
Article VI, section 26 of the Constitution, had ceased and important circumstances should be inquired into, as for
became inoperative at the latest in May, 1946 when instance, whether or not they have been ratified by
Congress met in its first regular session on May 25, 1946. Congress expressly or impliedly, whether their purposes
Then Chief Justice Manuel V. Moran recited the great have already been accomplished entirely or partially, and
interests and important rights that had arisen under in the last instance, to what extent; acquiescence of
executive orders “issued in good faith and with the best of litigants; de facto officers; acts and contracts of parties
intentions by three successive Presidents, and some of acting in good faith; etc. It is my opinion that each
them may have already produced extensive effects on the executive order must be viewed in the light of its peculiar
life of the nation” — in the same manner as may have circumstances, and, if necessary and possible, nullifying it,
arisen under the bona fide acts of the President now in the precautionary measures should be taken to avoid harm to
honest belief that the 1972 Constitution had been validly public interest and innocent parties.”12
ratified by means of the Citizens 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
11 Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); export control but to defer judgment on the Rodriguez and
Rodriguez vs. Treasurer (L-3054); Guerrero vs. Commissioner of Customs; Barredo petitions for judicial declarations of nullity of the
and Barredo vs. Comelec (L-3056), jointly decided and reported in 84 Phil. executive orders appropriating the 1949-1950 fiscal year
368. budget for the government and P6 million for the holding of
the 1949 national elections. After rehearsing, he further
338 voted to also declare null
338 SUPREME COURT REPORTS ANNOTATED _______________

12 Idem, at pp. 384-385; italics supplied.
339
Assemblies referendums — and indicated the proper course
and solution therefor, which were duly abided by and
VOL. 50, MARCH 31, 1973 339
confusion and disorder as well as harm to public interest
and innocent parties thereby avoided as follows: Javellana vs. The Executive Secretary
“Upon the other hand, while I believe that the
emergency powers had ceased in June 1945, I am not and void the last two executive orders appropriating funds
prepared to hold that all executive orders issued thereafter for the 1949 budget and elections, completing the
under Commonwealth Act No. 671, are per se null and void.
It must be borne in mind that these executive orders had
“sufficient majority” of six against four dissenting justices session till it approves the legislative measures most needed by
“to pronounce a valid judgment on that matter.”13 the country.
Then Chief Justice Moran, who penned the Court’s “Democracy is on trial in the Philippines, and surely it will
majority resolution, explained his vote for annulment emerge victorious as a permanent way of life in this country, if
despite the great difficulties and possible “harmful each of the great branches of the Government, within its own
consequences” in the following passage, which bears re- allocated sphere, complies with its own constitutional duty,
reading: uncompromisingly and regardless of difficulties.
“Our Republic is still young, and the vital principles underlying
“However, now that the holding of a special session of Congress its organic structure should be maintained firm and strong, hard
for the purpose of remedying the nullity of the executive orders in as the best of steel, so as to insure its growth and development
question appears remote and uncertain, I am compelled to, and do along solid lines of a stable and vigorous democracy.”14
hereby, give my unqualified concurrence in the decision penned
by Mr. Justice Tuason declaring that these two executive orders The late Justice Pedro Tuason who penned the initial
were issued without authority of law. majority judgment (declaring null and void the rental and
“While in voting for a temporary deferment of the judgment I export control executive orders) likewise observed that
was moved by the belief that positive compliance with the “(T)he truth is that under our concept of constitutional
Constitution by the other branches of the Government, which is government, in times of extreme perils more than in
our prime concern in all these cases, would be effected, and normal circumstances ‘the various branches, executive,
indefinite deferment will produce the opposite result because it legislative, and judicial,’ given the ability to act, are called
would legitimize a prolonged or permanent evasion of our organic upon ‘to perform the duties discharge the responsibilities
law. Executive orders which are, in our opinion, repugnant to the committed to respectively.’ ”15
Constitution, would be given permanent life, opening the way or It should be duly acknowledged that the Court’s task of
practices which may undermine our constitutional structure. discharging its duty and responsibility has been
“The harmful consequences which, as I envisioned in my considerably lightened by the President’s public
concurring opinion, would come to pass should the said executive manifestation of adherence to constitutional processes and
orders be immediately declared null and void are still real. They of working within the proper constitutional framework as
have not disappeared by reason of the fact that a special session per his press conference of January 20,1973, wherein he
of Congress is not now forthcoming. However, the remedy now lies stated that “(T)he Supreme Court is the final arbiter of the
in the hands of the Chief Executive and of Congress, for the Constitution. It can and will probably determine the
Constitution vests in the former the power to call a special session validity of this Constitution. I did not want to talk about
should the need for one arise, and in the latter, the power to pass this because actually there is a case pending before the
a valid appropriations act. Supreme Court. But suffice it to say that I recognize the
“That Congress may again fail to pass a valid appropriations power of the Supreme Court. With respect to appointments,
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 14 Idem, at pp. 435-437.
constitutional powers may, if he so desires, compel Congress to 15 Idem, at p. 383. Justice Tuason further duly noted that “These
remain in special
observations, though beyond the issue as formulated in this decision, may,
we trust, also serve to answer the vehement plea that for good of the
_______________
Nation, the President should retain his extraordinary powers as long as
13 Idem, at p. 437.
turmoil and other ills directly or indirectly traceable to the late war
harass the Philippines.”
340
341

the matter falls under a general provision which authorizes Javellana vs. The Executive Secretary
the Prime Minister to appoint additional members to the
Supreme Court. Until the matter of the new Constitution is cast an election at which the amendments are submitted to
decided, I have no intention of utilizing that power.”16 the people for their ratification,”19 participated in only by
Thus, it is that as in an analogous situation wherein the qualified and duly registered voters twenty-one years of age
state Supreme Court of Mississippi held that the questions or over20 and duly supervised by the Commission on
of whether the submission of the proposed constitutional Elections,21 in accordance with the cited mandatory
amendment of the State Constitution providing for an constitutional requirements.
elective, instead of an appointive, judiciary and whether The alternative choice of a liberal stand would permit a
the proposition was in fact adopted, were justifiable and disregard of said requirements on the theory urged by
not political questions, we may echo the words therein of respondents that “the procedure outlined in Article XV was
Chief Justice Whitfield that “(W)e do not seek a jurisdiction not intended to be exclusive of other procedures especially
not imposed upon us by the Constitution. We could not, if one which contemplates popular and direct participation of
we would, escape the exercise of that jurisdiction which the the citizenry,”22 that the constitutional age and literacy
Constitution has imposed upon us. In the particular requirements and other statutory safeguards for
instance in which we are now acting, our duty to know ascertaining the will of the majority of the people may
what the Constitution of the state is, and in accordance likewise be changed as “suggested, if not prescribed, by the
with our oaths to support and maintain it in its integrity, people (through the Citizens Assemblies) themselves,”23
imposed on us a most difficult and embarrassing duty, one and that the Comelec is constitutionally “mandated to
which we have not sought, but one which, like all others, oversee ... elections (of public officers) andnot plebiscites.”24
must be discharged.”17 To paraphrase U.S. Chief Justice John Marshall who
In confronting the issues at bar, then, with due regard first declared in the historic 1803 case of Marbury vs.
for my colleagues’ contrary views, we are faced with the Madison25 the U.S. Supreme Court’s power of judicial
hard choice of maintaining a firm and strict — perhaps, review and to declare void laws repugnant to the
even rigid — stand that the Constitution is a “superior Constitution, there is no middle ground between these two
paramount law, unchangeable by ordinary means” save in alternatives. As Marshall expounded it: “(T)he Constitution
the particular mode and manner prescribed therein by the is either a superior paramount law, unchangeable by
people, who, in Cooley’s words, so “tied up (not only) the ordinary means, or it is on a level with ordinary legislative
hands of their official agencies, but their own hands as acts, and, like other acts, alterable when the legislature
well”18 in the exercise of their sovereign will or a liberal shall please to alter it. If the former part of the alternative
and flexible stand that would consider compliance with the be true, then a legislative act, contrary to the Constitution,
constitutional article on the amending process as merely is not law; if the latter part be true, then written
directory rather than mandatory. constitutions are absurd attempts on the part of a people,
The first choice of a strict stand, as applied to the cases to limit a power, in its own nature, illimitable.”
at bar, signifies that the Constitution may be amended in
toto or otherwise exclusively “by approval by a majority of
_______________
the votes
19 Article XV, sec. 1, Constitution.
20 Article V, sec. 1, Constitution.
_______________ 21 Article X, sec. 2, Constitution.
16 Petitioner Monteclaro’s notes of oral argument dated February 23, 22 Respondents’ memo dated March 2, 1973, p. 5.
1973, p. 2, and Annex A thereof. 23 Respondents’ Comment dated Feb. 3, 1973, p. 67.
17 State vs. Powell, 77 Miss. 543, 27 south 927. 24 Idem, at p. 46; note in parentheses supplied.
18 Cooley’s Constitutional Limitations, 8th Ed., Vol. I, p. 81. 25 1 Cranch 137 (1803).
342 343

comprehending.”29 This enduring concept to my mind

As was to be restated by Justice Jose P. Laurel a century permeated to this Court’s exposition and rationale in the
and a third later in the 1936 landmark case of Angara vs. hallmark case of Tolentino, wherein we rejected the
Electoral Commission,26 “(T)he Constitution sets forth in no contentions on the Convention’s behalf “that the issue ... is
uncertain language the restrictions and limitations upon a political question and that the Convention being a
governmental powers and agencies. If these restrictions legislative body of the highest order is sovereign, and as
and limitations are transcended it would be inconceivable if such, its acts impugned by petitioner are beyond the
the Constitution had not provided for a mechanism by control of Congress and the Courts.”30
which to direct the course of government along This Court therein made its unequivocal choice of
constitutional channels, for then the distribution of powers strictly requiring faithful (which really includes
would be mere verbiage, the bill of rights mere expressions substantial) compliance with the mandatory requirements
of sentiment, and the principles of good government mere of the amending process.
political apothegms. Certainly, the limitations of good 1. In denying reconsideration of our judgment of October
government and restrictions embodied in our Constitution 16, 1971 prohibiting the submittal in an advance election of
are real as they should be in any living Constitution.” 1971 Constitutional Convention’s Organic Resolution No. 1
Justice Laurel pointed out that in contrast to the United proposing to amend Article V, section 1 of the Constitution
States Constitution, the Philippine Constitution as “a by lowering the voting age to 18 years (vice 21 years)30a
definition of the powers of government” placed upon the “without prejudice to other amendments that will be
judiciary the great burden of “determining the nature, proposed in the future ... on other portions of the amended
scope and extent of such powers” and stressed that “when section,” this Court stated that “the constitutional
the judiciary mediates to allocate constitutional provision in question (as proposed) presents no doubt which
boundaries, it does not assert any superiority over the may be resolved in favor of respondents and intervenors.
other departments ... but only asserts the solemn and We do not believe such doubt can exist only because it is
sacred obligation entrusted to it by the Constitution to urged that the end sought to be achieved is to be desired.
determine conflicting claims of authority under the Paraphrasing no less than the President of Constitutional
Constitution and to establish for the parties in an actual Convention of 1934, Claro M. Recto, let those who would
controversy the rights which the instrument secures and put aside, invoking grounds at best controversial, any
guarantees to them.” mandate of the fundamental law purportedly in order to
II attain some laudable objective bear in mind that someday
Marshall was to utter much later in the equally historic somehow others with purportedly more laudable objectives
1819 case of McCulloch vs. Maryland27 the “climactic may take advantage of the precedent and continue the
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 29 Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
constitutional law — most important because most 30 Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per
comprehensive and Barredo, J. at p. 8.
30a Con-Con Res. No. 1 proposing the urgent lowering of the voting age
_______________ to enfranchise the 18-year olds retained the “permissive” language of
26 63 Phil. 134 (1936). section 1, Art. V. Thus, the proposed amendment read “Section 1.
27 4 Wheaton 316 (1819). Suffrage may be exercised by (male) citizens of the Philippines not
28 Dean Pollak’s “The Constitution and the Supreme Court”, Vol. 1, p. otherwise disqualified by law, who are (twenty one) EIGHTEEN years of
221. age or over and are able to read and write ...”
344 345

VOL. 50, MARCH 31, 1973 345 _______________

31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
346
destruction of the Constitution, making those who laid
down the precedent of justifying deviations from the 346 SUPREME COURT REPORTS ANNOTATED
requirements of the Constitution the victims of their own
folly.”31
2. This Court held in Tolentino that:
lie in the delegates of any subsequent convention to claim that
“x x x as to matters not related to its internal operation and the they may ignore and disregard such conditions because they are
performance of its assigned mission to propose amendments to the powerful and omnipotent as their original counterparts.”32
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We 3. This Court in Tolentino likewise formally adopted the
hold that even as to its latter task of proposing amendments to doctrine of proper submission first advanced in Gonzales vs.
the Constitution, it is subject to the provisions of Section 1 of Comelec,33 thus:
Article XV. This must be so, because it is plain to Us that the "We are certain no one can deny that in order that a plebiscite
framers of the Constitution took care that the process of for the ratification of an amendment to the Constitution may be
amending the same should not be undertaken with the same ease validly held, it must provide the voter not only sufficient time but
and facility in changing an ordinary legislation. Constitution ample basis for an intelligent appraisal of the nature of
making is the most valued power, second to none, of the people in amendment per se as well as its relation to the other parts of the
a constitutional democracy such as the one our founding fathers Constitution with which it has to form a harmonious whole. In the
have chosen for this nation, and which we of the succeeding context of the present state of things, where the Convention
generations generally cherish. And because the Constitution hardly started considering the merits of hundreds, if not
affects the lives, fortunes, future and every other conceivable aspect thousands, proposals to amend the existing Constitution, to
of the lives of all the people within the country and those subject present to people any single proposal or a few of them cannot
to its sovereignty, every degree of care is taken in preparing and comply with this requirement. We are of the opinion that the
drafting it. A constitution worthy of the people for deliberation present Constitution does not contemplate in Section 1 of Article
and study. It is obvious that correspondingly, any amendment of XV a plebiscite or “election” wherein the people are in the dark as
the Constitution is of no less importance than the whole to frame of reference they can base their judgment on. We reject
Constitution itself, and perforce must be conceived and prepared the rationalization that the present Constitution is a possible
with as much care and deliberation. From the very nature of frame of reference, for the simple reason that intervenors
things, the drafters of an original constitution, as already themselves are stating the sole purpose of the proposed
observed earlier, operate without any limitations, restraints or amendment is to enable the eighteen year olds to take part in the
inhibitions save those that they may impose upon themselves. election for the ratification of the Constitution to be drafted by the
This is not necessarily true of subsequent conventions called to Convention. In brief, under the proposed plebiscite, there can be,
amend the original constitution. Generally, the framers of the in the language of Justice Sanchez, speaking for the six members
latter see to it that their handiwork is not lightly treated and as of the Court in Gonzales, supra, ‘no proper submission.’ ”34
easily mutilated or changed, not only for reasons purely personal
but more importantly, because written constitutions are supposed 4. Four other members of the Court35 in a separate
to be designed so as to last for some time, if not for ages, or for, at concurrence in Tolentino, expressed their “essential
least, as long as they can be adopted to the needs and exigencies agreement” with Justice Sanchez’ separate opinion in
of the people, hence, they must be insulated against precipitate Gonzales on the need for “fair submission (and) intelligent
and hasty actions motivated by more or less passing political rejection” as “minimum requirements that must be met in
moods or fancies. Thus, as a rule, the original constitutions carry order that there can be a proper submission to the people of
with them limitations and conditions, more or less stringent, a proposed constitutional amendment” thus:
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 32 Decision of Oct. 16, 1971, at p. 21.

33 21 SCRA 774 (Nov. 9, 1967). unseemly haste on the part of the Constitutional Convention in
34 Decision of Oct. 16, 1971, at p. 24. having this particular proposed amendment ratified at this
35 Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ. particular time? Do some of the members of the Convention have
future political plans which they want to begin to subserve by the
347 approval this year of this
VOL. 50, MARCH 31, 1973 347 _______________

36 Idem at pp. 1-2.
348

“x x x amendments must be fairly laid before the people for
their blessing or spurning. The people are not to be mere rubber Javellana vs. The Executive Secretary
stamps. They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare them amendment? If this amendment is approved, does it thereby mean
with the proposed amendments, and try to reach a conclusion as that the 18-year old should not also shoulder the moral and legal
the dictates of their conscience suggest, free from the incubus of responsibilities of the 21-year old? Will he be required to
extraneous or possibly insidious influences. We believe the word compulsory military service under the colors? Will the contractual
“submitted” can only mean that the government, within its consent be reduced to 18 years? If I vote against the amendment,
maximum capabilities, should strain every effort to inform every will I not be unfair to my own child who will be 18 years old, come
citizen of the provisions to be amended, and the proposed 1973?
amendments and the meaning, nature and effects thereof. By “The above are just samplings from here, there and everywhere
this, we are not to be understood as saying that, if one citizen or — from a domain (of searching questions) the bounds of which are
100 citizens or 1,000 citizens cannot be reached, then there is no not immediately ascertainable. Surely, many more questions can
submission within the meaning of the word as intended by the be added to the already long litany. And the answers cannot
framers of the Constitution. What the Constitution in effect except as the questions are debated fully, pondered upon
directs is that the government, in submitting an amendment for purposefully, and accorded undivided attention.
ratification, should put every instrumentality or agency within its “Scanning the contemporary scene, we say that the people are
structural framework to enlighten the people, educate them with not, and by election time will not be, sufficiently informed of the
respect to their act of ratification or rejection. For as we have meaning, nature and effects of the proposed constitutional
earlier stated, one thing is submission and another is ratification. amendment. They have not been afforded ample time to deliberate
There must be fair submission, intelligent consent or rejection.”36 thereon conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of the
They stressed further the need for undivided attention, merits and demerits of the proposed amendment by their
sufficient information and full debate, conformably to the traditional pervasive involvement in local elections and politics.
intendment of Article XV, section 1 of the Constitution, in They cannot thus weigh in tranquility the need for and the
this wise: wisdom proposed amendment.”37
“A number of doubts or misgivings could conceivably and 5. This Court therein dismissed the plea of disregarding
logically assail the average voter. Why should the voting age be mandatory requirements of the amending process “in favor
lowered at all, in the first place? Why should the new voting age of allowing the sovereign people to express their decision on
be precisely 18 years, and not 19 or 20? And why not 17? Or even the proposed amendments” as “anachronistic in the real
16 or 15? Is the 18-year old as mature as the 21-year old, so that constitutionalism and repugnant to the essence of the rule
there is no need of an educational qualification to entitle him to of law,” in the following terms:
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, “x x x The preamble of the Constitution says that the
in the past elections, has not performed so well? If the proposed Constitution has been ordained by the ‘Filipino people, imploring
amendment is voted down by the people, will the Constitutional the aid of Divine Providence.’ Section 1 of Article XV is nothing
Convention insist on the said amendment? Why is there an than a part of the Constitution thus ordained by the people.
Hence, in construing said section, We must read it as if the people intelligent appraisal of the issue submitted for their ratification or
had said, ‘This Constitution may be amended, but it is our will rejection. x x x Then, too, the submission to a plebiscite of a
that the amendment must be proposed and submitted to Us for partial amendment, without a definite frame of reference, is
ratification only in the manner herein provided.’ x x x Accordingly, fraught with possibilities which may jeopardize the social fabric.
the real issue here cannot be whether or not the amending For one thing, it opens the door to wild speculations. It offers
process delineated ample opportunities for overzealous leaders and members of
opposing political camps to
_______________
37 Idem at p. 3. _______________
38Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J.; pp. 3-4.
349
39 Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
VOL. 50, MARCH 31, 1973 349
by the present Constitution may be disregarded in favor of 350 SUPREME COURT REPORTS ANNOTATED
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
unduly exaggerate the pros and cons of the partial amendment
the realm of constitutionalism and repugnant to the essence of the
proposed. In short, it is apt to breed false hopes and create wrong
rule of law; rather, it is whether or not the provisional nature of
impressions. As a consequence, it is bound to unduly strain the
the proposed amendment and the manner of its submission to the
people’s faith in the soundness and validity of democratic
people for ratification or rejection conform with the mandate of the
processes and institutions.”
people themselves in such regard, as expressed in, the
— On the plea to allow submission to the sovereign people of
Constitution itself.”38
the “fragmentary and incomplete” proposal, although inconsistent
6. This Court, in not heeding the popular clamor, thus with the letter and spirit of the Constitution: “The view, has, also,
stated its position: “(I)t would be tragic and contrary to the advanced that the foregoing considerations are not decisive on the
plain compulsion of these perspectives, if the Court were to issue before Us, inasmuch as the people are sovereign, and the
allow itself in deciding this case to be carried astray by partial amendment involved in this case is being submitted to
considerations other than the imperatives of the rule of law them. The issue before Us is whether or not said partial
and of the applicable provisions of the Constitution. amendment may be validly submitted to the people for ratification
Needless to say, in a larger measure than when it binds “in a plebiscite coincide with the local elections in November
other departments of the government or any other official 1971,” and this particular issue will not be submitted to the
or entity, the Constitution imposes upon the Court the people. What is more, the Constitution does not permit its
sacred duty to give meaning and vigor to the Constitution, submission to the people. The question sought to be settled in the
by interpreting and construing its provisions in appropriate scheduled plebiscite is whether or not the people are in favor of
cases with the proper parties and by striking down any act the reduction of the voting age.
violative thereof. Here, as in all other cases, We are — On a “political” rather than “legalistic” approach: “Is this
resolved to discharge that duty.”39 approach to the problem too “legalistic?” This term has possible
7. The Chief Justice, in his separate opinion in Tolentino connotations. It may mean strict adherence to the law, which in
concurring with this Court’s denial of the motion for the case at bar is the Supreme Law of the land. On point, suffice it
reconsideration, succinctly restated this Court’s position on to say that, in compliance with the specific man of such Supreme
the fundamentals, as follows: Law, the members of the Supreme Court taken the requisite “oath
to support and defend the Constitution.” x x x Then, again, the
— On the premature submission of a partial amendment term “legalistic” may be used to suggest inversely that the
proposal, with a “temporary provisional or tentative character”: — somewhat strained interpretation of the Constitution being urged
“x x x a partial amendment would deprive the voters of the upon this Court be tolerated or, at least, overlooked, upon the
context which is usually necessary for them to make a reasonably theory that the partial amendment on voting age is badly needed
and reflects the will of the people, specially the youth. This course the sake of political expediency or the advancement of the bid for
of action favors, in effect, adoption of apolitical approach, power of a given political party. Upon the other hand,
inasmuch as the advisability of the amendment and an appraisal statesmanship is the expression usually availed of to refer to high
of the people’s feeling thereon political matters. In fact, apart from politics or politics on the highest level. In any event, politics,
the obvious message of the mass media, and, at times, of the political approach, political expediency and statesmanship are
pulpit, the Court has been literally bombarded with scores of generally associated, and often identified, with the dictum that “
handwritten letters, almost all of which bear the penmanship and the end justifies the means.” I earnestly hope that the
the signature of girls, as well as letterhead of some sectarian administration of justice in this country and the Supreme Court,
educational institutions, generally stating that the writer is 18 in particular, will adhere to or approve or indorse such dictum.”40
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. 40 All quotations are from the Chief Justice’s concurring opinion in
351
Tolentino, pp. 4-7.
352
VOL. 50, MARCH 31, 1973 351
“As above stated, however, the wisdom of the amendment and
the popularity thereof are political questions beyond our province.
In fact, respondents and the intervenors originally maintained Tolentino, he pointed out that although “(M)ovants’
that We have no jurisdiction to entertain the petition herein, upon submittal that “(T)he primary purpose for the submission
the ground that the issue therein raised is a political one. Aside of the proposed amendment lowering the voting age to the
from the absence of authority to pass upon political question, it is plebiscite on November 8, 1971 is to enable the youth 18 to
obviously improper and unwise for the bench to develop into such 20 years who comprise more than three (3) million of our
questions owing to the danger of getting involved in politics, more population to participate in the ratification of the new
likely of a partisan nature, and, hence, of impairing the image Constitution in so far as “to allow young people who would
and the usefulness of courts of justice as objective and impartial be governed by the Constitution to be given a say on what
arbiters of justiciable controversies. kind of Constitution they will have” is a laudable end, x x x
“Then, too, the suggested course of action, if adopted, would those urging the vitality and importance of the proposed
constitute a grievous disservice to the people and the very constitutional amendment and its approval ahead of the
Convention itself. Indeed, the latter and the Constitution it is in complete and final draft of the Constitution must seek a
the process of drafting stand essentially for the Rule of Law. valid solution to achieve it in a manner sanctioned by the
However, as the Supreme Law of the land, a Constitution would amendatory process ordained by our people in the present
not be worthy of its name, and the Convention called upon to Constitution”41 — so that there may be “submitted, not
draft it would be engaged in a futile undertaking, if we did not piece-meal, but by way of complete and final amendments
exact faithful adherence to the fundamental tenets set forth in the as an integrated whole (integrated either with the
Constitution and compliance with its provisions were not subsisting Constitution or with the new proposed
obligatory. If we, in effect, approved, consented to or even Constitution)...”
overlooked a circumvention of said tenets and provisions, because 9. The universal validity of the vital constitutional
of the good intention with which Resolution No. 1 is animated, the precepts and principles above-enunciated can hardly be
Court would thereby become the Judge of the good or bad gainsaid. I fail to see the attempted distinction of
intentions of the Convention and thus be involved in a question restricting their application to proposals for amendments of
essentially political in nature. particular provisions of the Constitution and not to so-
“This is confirmed by the plea made in the motions for called entirely new Constitutions. Amendments to an
reconsideration in favor of the exercise of judicial statesmanship existing Constitution presumably may be only of certain
in deciding the present case. Indeed, “politics” is the word parts or in toto, and in the latter case would rise to an
commonly used to epitomize compromise, even with principles, for
entirely new Constitution. Where this Court held in 2. A Massachussets case43 with a constitutional system
Tolentino that “any amendment of the Constitution is of no and provisions analogous to ours, best defined the uses of
less importance than the whole Constitution itself and the term “people” as a body politic and “people” in the
perforce must be conceived and prepared with as much care political sense who are synonymous with the qualified
and deliberation,” it would appeal that the reverse would voters granted the right to vote by the existing
equally be true; which is to say, that the adoption of a Constitution and who therefore are “the sole organs
whole new Constitution would be of no less importance through which the will of the body politic can be
than any particular amendment and therefore the expressed.”
necessary care and deliberation as well as the mandatory It was pointed out therein that “(T)he word ‘people’ may
restrictions and safeguards in the amending process have somewhat varying significations dependent upon the
ordained by the people themselves so that “they (may) be connection in which it is used. In some connections in the
insulated against precipitate and hasty actions motivated
by more or less passing political moods or fancies” must _______________
necessarily equally apply thereto. 42 This Court thus declared in Tolentino the Con-Con voting age
reduction resolution as null and void and prohibited its submittal at the
_______________ 1971 elections for lack of proper submission since it did not “provide the
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in voter ... ample basis for an intelligent appraisal of the amendment. “Dec.
Tolentino, pp. 8, 9, 10. of October 16, 1971, per Barredo, J.
43 In re-Opinion of Justices, 115 N.E. Rep. 922-923.
353
354
VOL. 50, MARCH 31, 1973 353


III Constitution it is confined to citizens and means the same
1. To restate the basic premises, the people provided in as citizens. It excludes aliens. It includes men, women and
Article XV of the Constitution for the amending process children. It comprehends not only the sane, competent,
only “by approval by a majority of the votes cast at an law-abiding and educated, but also those who are wholly or
election at which the (duly proposed) amendments are in part dependents and charges upon society by reason of
submitted to the people for their ratification.” immaturity, mental or moral deficiency or lack of the
The people ordained in Article V, section 1 that only common essentials of education. All these persons are
those thereby enfranchised and granted the right of secured fundamental guarantees of the Constitution in life,
suffrage may speak the “will of the body politic,” viz, liberty and property and the pursuit of happiness, except
qualified literate voters twenty one years of age or over with as these may be limited for the protection of society.”
one year’s residence in the municipality where they have In the sense of “body politic (as) formed by voluntary
registered. association of individuals” governed by a constitution and
The people, not as yet satisfied, further provided by common laws in a “social compact ... for the common good”
amendment duly approved in 1940 in accordance with and in another sense of “people” in a “practical sense” for
Article XV, for the creation of an independent Commission “political purposes” it was therein fittingly stated that in
on Elections with “exclusive charge” for the purpose of this sense, “people” comprises many who, by reason of want
“insuring free, orderly and honest elections” and of years, of capacity or of the educational requirements of
ascertaining the true will of the electorate — and more, as Article 20 of the amendments of the Constitution, can have
ruled by this Court in Tolentino, in the case of proposed no voice in any government and who yet are entitled to all
constitutional amendments, insuring proper submission to the immunities and protection established by the
the electorate of such proposals.42 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 after thirty days from its approval by either body, and such
‘people’ in this connection means that part of the entire plebiscite has been given the widest publicity in the barrio,
body of inhabitants who under the Constitution are stating the date, time and place thereof, the questions or
entrusted with the exercise of the sovereign power and the issues to be decided, action to be taken by the voters, and
conduct of government. The ‘people’ in the Constitution in a such other information relevant to the holding of the
practical sense means those who under the existing plebiscite.”46
Constitution possess the right to exercise the elective As to voting at such barrio plebiscites, the Charter
franchise and who, while that instrument remains in force further requires that “(A)ll duly registered barrio assembly
unchanged, will be the sole organs through which the will members qualified to vote may vote in the plebiscite. Voting
of the body politic can be expressed. ‘People’ for political procedures
purposes must be considered synonymous with qualified
voters.’ ” _______________
As was also ruled by the U.S. Supreme Court, “... While 44 Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
the people are thus the source of political power, their 45 “Barrios are units of municipalities or municipal districts in which
governments, national and state, have been limited by they are situated x x.” Rep. Act 3590, sec. 2.
constitutions, and they have themselves thereby set bounds 46 Rep. Act 3590, sec. 6, par. 1.
to their own power, as against the sudden impulse of mere
356
355

VOL. 50, MARCH 31, 1973 355
may be made either in writing as in regular elections,
majorities.”44 and/or declaration by the voters to the board of election
From the text of Article XV of our Constitution, tellers.”47
requiring approval of amendment proposals “by a majority The subjects of the barrio plebiscites are likewise
of the votes cast at an election at which the amendments delimited thus: “A plebiscite may be called to decide on the
are submitted to the people for their ratification,” it seems recall of any member of the barrio council. A plebiscite
obvious as above-stated that “people” as therein used must shall be called to approve any budgetary, supplemental
be considered synonymous with “qualified voters” as appropriations or special tax ordinances” and the required
enfranchised under Article V, section 1 of the Constitution majority vote is specified: “(F)or taking action on any of the
— since only “people” who are qualified voters can exercise above enumerated measures, majority vote of all the barrio
the right of suffrage and cast their votes. assembly members registered in the list of the barrio
3. Sound constitutional policy and the sheer necessity of secretary is necessary.”48
adequate safeguards as ordained by the Constitution and The qualifications for voters in such barrio plebiscites
implementing statutes to ascertain and record the will of and elections of barrio officials49 comply with the suffrage
the people in free, orderly and honest elections supervised qualifications of Article V, section 1 of the Constitution and
by the Comelec make it imperative that there be strict provide that “(S)EC. 10. Qualifications of Voters and
adherence to the constitutional requirements laid down for Candidates. — Every citizen of the Philippines, twenty one
the process of amending in toto or in part the supreme law years of age or over, able to read and write, who has been a
of the land. resident of the barrio during the six months immediately
Even at barrio level45 the Revised Barrio Charter fixes preceding the election, duly registered in the list of voters by
certain safeguards for the holding of barrio plebiscites thus: the barrio secretary, who is not otherwise disqualified, may
“SEC. 6. Plebiscite. — A plebiscite may be held in the vote or be a candidate in the barrio elections.”50
barrio when authorized by a majority vote of the members IV
present in the barrio assembly, there being a quorum, or 1. Since it appears on the face of Proclamation 1102 that
when called by at least four members of the barrio council: the mandatory requirements under the above-cited
Provided, however, That no plebiscite shall be held until constitutional articles have not been complied with and
that no election or plebiscite for ratification as therein provided by the election code generally assure the true
provided as well as in section 16 of Article XVII of the ascertainment of the results of the
proposed Constitution itself51 has been called or held, there
cannot be said to have been a _______________
52 Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental,
_______________ petitioners’ manifestation and supplemental rejoinder dated March 21,
47 Idem, par. 2. 1973 in L-36165.
48 Idem, par. 3 and 4, italics supplied. 53 Respondents’ rejoinder dated March 20, 1973 and sur-rejoinder
49 One barrio lieutenant and six barrio councilmen; “Voting shall be by dated March 29, 1973.
secret ballot. x x.” Idem, sec. 8. 54 Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that
50 Idem, sec. 10, italics supplied. The same section further disqualifies “fourteen million nine hundred seventy six thousand five hundred sixty
persons convicted by final judgment to suffer one year or more of one (14,976,561) members of all the Barangays voted for the adoption of
imprisonment “within two years after service” or who have violated their the proposed Constitution, as against seven hundred forty-three thousand
allegiance to the Republic and insane or feeble-minded persons. eight hundred sixty nine (743,869) who voted for its rejection; but a
51 Supra, p. 2. majority of those who approved the new Constitution conditioned their
votes on the demand that the interim National Assembly provided in its
357 Transitory Provisions should not be convened.”
358
VOL. 50, MARCH 31, 1973 357
valid ratification.
2. Petitioners raised serious questions as to the veracity
and genuineness of the reports or certificates of results vote and interested parties would have an opportunity to
purportedly showing unaccountable discrepancies in seven thresh out properly before the Comelec all such questions
figures in just five provinces52 between the reports as in pre-proclamation proceedings.
certified by the Department of Local Governments and the 4. At any rate, unless respondents seriously intend to
reports as directly submitted by the provincial and city question the very statements and pronouncements in
executives, which latter reports respondents disclaimed Proclamation 1102 itself which shows on its face, as
inter alia as not final and complete or as not signed;53 already stated, that the mandatory amending process
whether the reported votes of approval of the proposed required by the (1935) Constitution was not observed, the
Constitution conditioned upon the non-convening of the cases at bar need not reach the stage of answering the host
interim National Assembly provided in Article XVII, of questions, raised by petitioners against the procedure
section 1 thereof,54 may be considered as valid; the observed by the Citizens Assemblies and the reported
allegedly huge and uniform votes reported; and many referendum results — since the purported ratification is
others. rendered nugatory by virtue of such non-observance.
3. These questions only serve to justify and show the 5. Finally, as to respondents’ argument that the
basic validity of the universal principle governing written President issued Proclamation 1102 “as “agent” of the
constitutions that proposed amendments thereto or in Constitutional Convention”55 under Resolution No. 5844
replacement thereof may be ratified only in the particular approved on November 22, 1973, and “as agent of the
mode or manner prescribed therein by the people. Under Convention the President could devise other forms of
Article XV, section 1 of our Constitution, amendments plebiscite to determine the will of the majority vis-a-vis the
thereto may be ratified only in the one way therein ratification of the proposed Constitution.”56
provided, i.e. in an election or plebiscite held in accordance The minutes of November 22, 1972, of the Convention,
with law and duly supervised by the Commission on however, do not at all support this contention. On the
Elections, and which is participated in only by qualified contrary, the said minutes fully show that the Convention’s
and duly registered voters. In this manner, the safeguards proposal and “agency” was that the President issue a

decree precisely calling a plebiscite for the ratification of “x x x x x

the proposed new Constitution on an appropriate date, “12.4 Interpellating, Delegate Madarang suggested that a
under the charge of the Comelec, and with a reasonable reasonable period for an information campaign was necessary in
period for an information campaign, as follows: order to properly apprise the people of the implications and
significance of the new charter. Delegate Duavit agreed, adding
“12. Upon recognition by the Chair, Delegate Duavit moved for that this was precisely why the resolution was modified to give
the approval of the resolution, the resolution portion of which the President the discretion to choose the most appropriate date
read as follows: for the plebiscite.
“12.5 Delegate Laggui asked whether a formal communication to
_______________ the President informing him of the adoption of the new
55 Respondents’ memo dated March 2, 1973, supra, p. 2. Constitution would not suffice considering that under Section 15
56 As restated by Barredo, J. in his separate op. in the plebiscite cases, who, of the Transitory Provisions, the President would be duty-bound
however, did not look on the same with favor, since the constitutional point (that to call a plebiscite for its ratification. Delegate Duavit replied in
the Comelec has exclusive charge of the conduct of elections and plebiscites) seems the negative, adding that the resolution was necessary to serve
to have been overlooked in the Assemblies.” notice to the proper authorities to prepare everything necessary for
the plebiscite.
359
360
VOL. 50, MARCH 31, 1973 359

‘RESOLVED, AS IT IS HEREBY RESOLVED, that the
1971 Constitutional Convention propose to President “12.6 In reply to Delegate Britanico, Delegate Duavit stated that
Ferdinand E. Marcos that a decree be issued calling a the mechanics for the holding of the plebiscite would be laid down
plebiscite for the ratification of the proposed New by the Commission on Elections in coordination with the
Constitution on such appropriate date as he shall determine President.
and providing for the necessary funds therefor, and that “12.7 Delegate Catan inquired if such mechanics for the plebiscite
copies of this resolution as approved in plenary session be could include a partial lifting of martial law in order to allow the
transmitted to the President of the Philippines and the people to assemble peaceably to discuss the new Constitution.
Commission on Elections for implementation.’ Delegate Duavit suggested that the Committee on Plebiscite and
“He suggested that in view of the expected approval of the final Ratification could coordinate with the COMELEC on the matter.
draft of the new Constitution by the end of November 1972 “12.8 Delegate Guzman moved for the previous question. The
according to the Convention’s timetable, it would be necessary to Chair declared that there was one more interpellant and that a
lay the groundwork for the appropriate agencies of the prior reservation had been made for the presentation of such a
government to undertake the necessary preparation for the motion.
plebiscite. 1.8a Delegate Guzman withdrew his motion.
“x x x x x “12.9 Delegate Astilla suggested in his interpellation that there
12.2 Interpellating, Delegate Pimentel (V.) contended that the was actually no need for such a resolution in view of the provision
resolution was unnecessary because section 15, Article XVII on of section 15, Article XVII on the Transitory Provisions. Delegate
the Transitory Provision, which had already been approved on Duavit disagreed, pointing out that the said provision did not
second and third readings, provided that the new constitution provide for the funds necessary for the purpose.
should be ratified in a plebiscite called for the purpose by the “13. Delegate Ozamiz then moved to close the debate and proceed
incumbent President. Delegate Duavit replied that the provision to the period of amendment.
referred to did not include the appropriation of funds for the “13.1 Floor Leader Montejo stated that there were no reservations
plebiscite and that, moreover, the resolution was intended to serve to amend the resolution.
formal notice to the President and the Commission on Elections to “13.2 Delegate Ozamiz then moved for the previous question.
initiate the necessary preparations. Submitted to a vote, the motion was approved.

“Upon request of the Chair, Delegate Duavit restated the power. “The more complete the separation of powers in a
resolution for voting. constitutional system, the more difficult, and yet the more
“14.1. Delegate Ordoñez moved for nominal voting. Submitted to a necessary” according to Rossiter, “will be their fusion in
vote, the motion was lost. time of crisis... The power of the state in crisis must not
“14.2. Thereupon, the Chair submitted the resolution to a vote. It only be
was approved by a show of hands.”57
_______________
_______________ * First decision promulgated by First Division of the Supreme Court.
57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of
362
petitioner-delegate Sedfrey A. Ordoñez, et al. in the plebiscite case L-
359042, par. 12 of petition and admitted in par. 4 of answer of therein
respondents dated Dec. 15, 1972. 362 SUPREME COURT REPORTS ANNOTATED
361 Javellana vs. The Executive Secretary
concentrated and expanded, it must be freed from the

VOL. 50, MARCH 31, 1973 361
normal system of constitutional and legal limitations. One
Javellana vs. The Executive Secretary of the basic features of emergency powers is the release of
the government from the paralysis of constitutional
I, therefore, vote to deny respondents’ motion to dismiss restraints” (Rossiter, Constitutional Dictatorship, p. 290).
and to give due course to the petitions. It is clearly recognized that in moments of peril the
Promulgated: June 4, 1973* effective action of the government is channeled through the
Antonio, J.: person of the Chief Executive. “Energy in the executive,”
In conformity with my reservation, I shall discuss the according to Hamilton, “is essential to the protection of the
grounds for my concurrence. community against foreign attacks ... to the protection of
I property against those irregular and high-handed
It is my view that to preserve the independence of the combinations which sometimes interrupt the ordinary
State, the maintenance of the existing constitutional order course of justice; to the security of liberty against the
and the defense of the political and social liberties of the enterprises and assaults of ambition, of faction, and of
people, in times of a grave emergency, when the legislative anarchy.” (The Federalist, Number 70). “The entire
branch of the government is unable to function or its strength of the nation,” said Justice Brewer in the Debs
functioning would itself threaten the public safety, the case (158 U.S. 564; 39 L. ed. 1092), “may be used to enforce
Chief Executive may promulgate measures legislative in in any part of the land the full and free exercise of all
character, for the successful prosecution of such objectives. national powers and the security of all rights entrusted by
For the “President’s power as Commander- in-chief has the constitution to its care.” The marshalling and
been transformed from a simple power of military employment of the “strength of the nation” are matters for
command to a vast reservoir of indeterminate powers in the discretion of the Chief Executive. The President’s
time of emergency. * * * In other words, the principal powers in time of emergency defy precise definition since
canons of constitutional interpretation are * * * set aside so their extent and limitations are largely dependent upon
far as concerns both the scope of the national power and conditions and circumstances.
the capacity of the President to gather unto himself all 2. The power of the President to act decisively in a crisis
constitutionally available powers in order the more has been grounded on the broad conferment upon the
effectively to focus them upon the task of the hour.” Presidency of the Executive power, with the added specific
(Corwin, The President: Office & Powers, pp. 317, 318, grant of power under the “Commander-in-Chief” clause of
[1948]). the constitution. The contours of such powers have been
1. The proclamation of martial rule, ushered the shaped more by a long line of historical precedents of
commencement of a crisis government in this country. In Presidential action in times of crisis, rather than judicial
terms of power, crisis government in a constitutional interpretation. Lincoln wedded his powers under the
democracy entails the concentration of governmental “commander-in-chief” clause with his duty “to take care
that the laws be faithfully executed,” to justify the series of overage destroyers to Great Britain. The truth is, they were
extraordinary measures which he took — the calling of not overage, but had been recently reconditioned and
volunteers for military service, the augmentation of the recommissioned. ... Actually, what President Roosevelt did
regular army and navy, the payment of two million dollars was to take over for the nonce Congress’s power to dispose of
from unappropriated funds in the Treasury to persons property of the United States (Article IV, Section 3) and to
unauthorized to receive it, the closing of the Post Office to repeal at least two statutes.” (Corwin & Koenig, The
“treasonable correspondence,” the blockade of southern Presidency Today, New York University Press, 1956; sf
ports, the suspension of the writ of habeas corpus, the Corwin, The President: Office and Powers, 1948.)
arrest and The creation of public offices is a power confided by the
constitution to Congress. And yet President Wilson, during
363
364
VOL. 50, MARCH 31, 1973 363

detention of persons “who were represented to him” as
being engaged in or contemplating “treasonable practices” World War I on the basis of his powers under the
— all this for the most part without the least statutory “Commander-in-Chief” clause created “offices” which were
authorization. Those actions were justified by the copied in lavish scale by President Roosevelt in World War
imperatives of his logic, that the President may, in an II. In April 1942, thirty-five “executive agencies” were
emergency thought by him to require it, partially suspend purely of Presidential creation. On June 7, 1941 on the
the constitution. Thus his famous question: “Are all laws basis of his powers as “Commander-in-Chief,” he issued an
but one to be unexecuted, and the Government itself go to executive order seizing the North American Aviation plant
pieces lest that one be violated?” The actions of Lincoln of Inglewood, California, where production stopped as a
“assert for the President,” according to Corwin, “an consequence of a strike. This was justified by the
initiative of indefinite scope and legislative in effect in government as the exercise of presidential power growing
meeting the domestic aspects of a war emergency.” out of the “duty constitutionally and inherently resting
(Corwin, The President: Office & Powers, p. 280 [1948]). upon the President to exert his civil and military as well as
The facts of the civil war have shown conclusively that in his moral authority to keep the defense efforts of the
meeting the domestic problems as a consequence of a great United States a going concern” as well as “to obtain
war, an indefinite power must be attributed to the supplies for which Congress has appropriated money, and
President to take emergency measures. The concept of which it has directed the President to obtain.” On a similar
“emergency” under which the Chief Executive exercised justification, other plants and industries were taken over
extraordinary powers underwent correlative enlargement by the government. It is true that in Youngstown Sheet &
during the first and second World Wars. From its narrow Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L. Ed.
concept as an “emergency” in time of war during the Civil 1153, [1952]), the Supreme Court of the United States did
War and World War I, the concept has been expanded in not sustain the claims that the President could, as the
World War II to include the “emergency” preceding the war Nation’s Chief Executive and Commander-in-Chief of the
and even after it. “The Second World War” observed armed forces, validly order the seizure of most of the
Corwin and Koenig, was the First World War writ large, country’s steel mills. The Court however did not face the
and the quasi-legislative powers of Franklin Roosevelt as naked question of the President’s power to seize steel
“Commander-in-Chief in wartime.”.. burgeoned plants in the absence of any congressional enactment or
correspondingly. The precedents were there to be sure, expressions of policy. The majority of the Court found that
most of them from the First World War, but they this legislative occupation of the field made untenable the
proliferated amazingly. What is more, Roosevelt took his President’s claim of authority to seize the plants as an
first step toward war some fifteen months before our exercise of inherent executive power or as Commander-in-
entrance into shooting war. This step occurred in Chief. Justice Clark, in his concurrence to the main opinion
September, 1940, when he handed over fifty so-called of the Court, explicitly asserted that the President does
possess, in the absence of restrictive legislation, a residual normalcy? It is unavailing for petitioners to contend that
or resultant power above or in consequence of his granted we are not faced by an actual “shooting war” for today’s
powers, to deal with emergencies that he regards as concept of the emergency which justified the exercise of
threatening the national security. The same view was those powers has of necessity been expanded to meet the
shared with vague qualification by Justices Frankfurter exigencies of new dangers and crisis that directly threaten
and Jackson, two of the concurring Justices. The three the nation’s continued and constitutional existence. For as
dissenting Justices, speaking through Chief Justice Vinson, Corwin observed: “... today the concept of ‘war’ as a special
apparently went further by quoting with approval a type of emergency warranting the realization of
passage extracted from the brief of the government in the constitutional limitations tends to spread, as it were, in
case of United States vs. Midwest Oil Co., (236 U.S. 459 59 both directions, so that there is not only “the war before the
L. Ed. 673, 35 S. Ct. 309) where the court sustained the war,” but the ‘war after the war.’ Indeed, in the economic
power of the President to order withdrawals from the crisis from which the New Deal may be said to have
public domain not only without Congressional sanction but
366
even
365
VOL. 50, MARCH 31, 1973 365
Javellana vs. The Executive Secretary issued, the nation was confronted in the opinion of the late
President with an ‘emergency greater than war’; and in
contrary to Congressional statutes. sustaining certain of the New Deal measures the Court
It is evident therefore that the Steel Seizure Case, invoked the justification of ‘emergency.’ In the final result
cannot be invoked as an authority to support the view that constitutional practices of wartime have moulded the
the President in times of a grave crisis does not possess a Constitution to greater or less extent for peacetime as well,
residual power above or in consequence of his granted seem likely to do so still more pronouncedly under fresh
powers, to deal with emergencies that he regards as conditions of crisis.” (Corwin, Ibid. p. 318.)
threatening the national security. The lesson of the Steel The same view was expressed by Rossiter thus:
Seizure case, according to Corwin and Koenig,
“Unquestionably ... tends to supplement presidential “The second crisis is rebellion, when the authority of a
emergency power to adopt temporary remedial legislation constitutional government is resisted openly by large numbers of
when Congress has been, in the judgment of the President, citizens who are engaged in violent insurrection against
unduly remiss in taking cognizance of and acting on a enforcement of its laws or are bent on capturing it illegally or
given situation.” (Corwin and Koenig, The Presidency destroying it altogether. The third crisis, one recognized
Today, New York University Press, 1956). particularly in modern times as sanctioning emergency action by
The accumulation of precedents has thus built up the constitutional governments, is economic depression. The economic
presidential power under emergency conditions to troubles which plagued all the countries of the world in the early
“dimensions of executive prerogative as described by John thirties involved governmental methods of an unquestionably
Locke, of a power to wit, to fill needed gaps in the law, or dictatorial character in many democracies. It was thereby
even to supersede it so far as may be requisite to realize the acknowledged that an economic existence as a war or a rebellion.
fundamental law of nature and government, namely, that And these are not the only cases which have justified
as much as may be all the members of society are to be extraordinary governmental action in nations like the United
preserved.” (Corwin and Koenig, The Presidency Today). States. Fire, flood, drought, earthquake, riots, great strikes have
In the light of the accumulated precedents, how could it all been dealt with by unusual and of dictatorial methods. Wars
be reasonably argued therefore, that the President had no are not won by debating societies, rebellions are not suppressed
power to issue Presidential Decree Nos. 86 and 86-A as by judicial injunctions, reemployment of twelve million jobless
well as Proclamation No. 1102, since these measures were citizens will not be effected through a scrupulous regard for the
considered indispensable to effect the desired reforms at tenets of free enterprise, hardships caused by the eruptions of
the shortest time possible and hasten the restoration of nature cannot be mitigated letting nature take its course. The

Civil War, the depression of 1933 and the recent global conflict may be used again, some of the rooms may be constructed the same, but
were not and could not have been successfully resolved by this does not alter the fact that you have altogether another or a new
governments similar to those of James Buchanan, William house. We conclude that the instrument as contained in Ga. L. 1945, pp. 8
Howard Taft, or Calvin Coolidge.” (Rossiter, Constitutional to 89, inclusive, is not an amendment to the constitution of 1877; but on
Dictatorship — Crisis of Government in the Modern Democracies, the contrary it is a completely revised or new Constitution.” (Wheeler v.
p. 6 [1948). Board of Trustees, 37 S.E. 2d 322, 327).
“Every proposal which affects a change in a Constitution or adds or
II takes away from it is an “amendment’, while a “revision” implies a re-
We are next confronted with the insistence of Petitioners examination and statement of the Constitution, or some part of it, in a
that the referendum in question not having been done corrected or improved form.” (Const. Secs. 196, 197, Staples v. Gilmer, 33
inaccordance with the provisions of existing election laws, S.E. 2d 49, 53 183 Va. 613).
which only qualified voters who are allowed to participate, “Amendment” and “revision” of constitution are separate procedures
under the each having a substantial field of application not mere alternative
procedures in the same field.” (McFadden v. Jordan, 196 P. 2d 787, 797 32
367
Cal. 2d 330).
VOL. 50, MARCH 31, 1973 367 368

supervision of the Commission on Elections, the new Javellana vs. The Executive Secretary
Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article social and economic concepts.
XV of the 1935 Constitution provides the method for the According to an eminent authority on Political Law,
revision of the constitution, and automatically apply in the “The Constitution of the Philippines and that of the United
final approval of such proposed new Constitution the States expressly provide merely for methods of amendment.
provisions of the election law and those of Article V and X They are silent on the subject of revision. But this is not a
of the old Constitution. We search in vain for any provision fatal omission. There is nothing that can legally prevent a
in the old charter specifically providing for such procedure convention from actually revising the Constitution of the
in the case of a total revision or a rewriting of the whole Philippines or of the United States even were such
constitution. conventions called merely for the purpose of proposing and
1. There is clearly a distinction between revision and submitting amendments to the people. For in the final
amendment of an existing constitution. Revision may analysis, it is the approval of the people that gives validity
involve a rewriting of the whole constitution. The act of to any proposal of amendment or revision.” (Sinco,
amending a constitution, on the other hand, envisages a Philippine Political Law, p. 49).
change of only specific provisions. The intention of an act to Since the 1935 Constitution does not specifically provide
amend is not the change of the entire constitution but only for the method or procedure for the revision or for the
the improvement of specific parts of the existing approval of a new constitution, should it now be held, that
constitution of the addition of provisions deemed essential the people have placed such restrictions on themselves that
as a consequence of new constitutions or the elimination of they are not disabled from exercising their right as the
parts already considered obsolete or unresponsive to the ultimate source of political power from changing the old
needs of the times.1 The 1973 Constitution is not a mere constitution which, in their view, was not responsive to
amendment to the 1935 Constitution. It is a completely new their needs and in adopting a new charter of government to
fundamental charter embodying new political, 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
1 “When a house is completely demolished and another is erected on the manner and form provided by Congress for previous
the same location, do you have a changed, repaired and altered house, or plebiscites? Was not the expansion of the base of political
do you have a new house? Some of the material contained in the old house participation, by the inclusion of the youth in the process of
ratification who after all constitute the preponderant Constitution, which decided to submit to the people for
majority more in accord with the spirit and philosophy of approval, not through an act of Congress, but by means of
the constitution that political power is inherent in the decrees to be promulgated by the President. In view of the
people collectively? As clearly expounded by Justice inability of Congress to act, it was within the constitutional
Makasiar, in his opinion, in all the cases cited where the powers of the President, either as agent of the
Courts held that the submission of the proposed Constitutional Convention, or under his authority under
amendment was illegal due to the absence of substantial martial law, to promulgate the necessary measures for the
compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state _______________
Constitution, is so detailed, that specified the manner in 2 Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in
which such submission shall be made, the persons qualified Appendix.
to vote for the same, the date of election and other definite 3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
standards, from which the court could safely ascertain 4 Cf. State Constitutions of Alaska, California, Delaware, Florida,
whether or not the submission was in accordance with the Michigan, Minnesota, Nevada, New Hampshire, Oklahoma, Oregon, Utah
Constitution. Thus the case of In re McConaughy (119 and Wyoming in Appendix to this opinion.
369 370
N.E. 408) relied upon in one of the dissenting opinions ratification of the proposed new Constitution. The adoption
involved in the application of the provisions of the state the new Charter was considered as a necessary basis for all
Constitution of Minnesota which clearly prescribed in the reforms set in motion under the new society, to root out
detail the procedure under which the Constitution may be the causes of unrest. The imperatives of the emergency
amended or revised.2 This is not true with our underscored the urgency of its adoption. The people in
Constitution. In the case of revision there are no “standards accepting such procedure and in voting overwhelmingly for
meet for judicial judgment.”3The framers of our the approval of the new Constitution have, in effect,
Constitution were free to provide in the Constitution the ratified the method and procedure taken. “When the people
method or procedure for the revision or rewriting of the adopt completely revised or new constitution,” said the
entire constitution, and if such was their intention, they Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-
could and should have so provided. Precedents were not 330), “the framing or submission of the instrument is not
wanting. The constitutions of the various states of the what gives it binding force and effect. The fiat of the
American Union did provide for procedures for their people, and only the fiat of the people, can breathe life into
amendment and methods for their revision.4 a constitution.”
Certainly We cannot, under the guise of interpretation, This has to be so because, in our political system, all
modify, revise, amend, remodel or rewrite the 1935 political power is inherent in the people and free
Charter. To declare what the law is, or has been, is a governments are founded on their authority and instituted
judicial power, but to declare what the law shall be is not for their benefit. Thus Section 1 of Article II of the 1935
within Our judicial competence and authority. Constitution declares that: “Sovereignty resides in the
Upon the other hand, since our fundamental charter has people and all government authority emanate from them.”
not provided the method or procedure for the revision or Evidently the term people refers to the entire citizenry and
complete change of the Constitution, it is evident that the not merely to the electorate, for the latter is only a fraction
people have reserved such power in themselves. They of the people and is only an organ of government for the
decided to exercise it not through their legislature, but election of government officials.
through a Convention expressly chosen for that purpose. III
The Convention as an independent and sovereign body has The more compelling question, however is: Has this
drafted not an amendment but a completely new Court the authority to nullify an entire Constitution that is
already effective as it has been accepted and acquiesced in in the repair of dikes, irrigation ditches, roads and bridges,
by the people as shown by their compliance with the decree in reforestation, in the physical transformation of the
promulgated thereunder, their cooperation in its environment to make ours a cleaner and greener land. “The
implementation, and is now maintained by the entire country is turning into one vast garden growing food
Government that is in undisputed authority and for the body, for thought and for the soul.”* More important
dominance? the common man has at long last been freed from the
Of course it is argued that acquiescence by the people incubus of fear.
can be deduced from their acts of conformity, because
under a regime of martial law the people are bound to obey “Martial law has paved the way for a re-ordering of the basic
and act in conformity with the orders of the President, and social structure of the Philippines” reported Frank Valeo to the
has absolutely no other choice. The flaw of this argument United States Senate. “President Marcos has been prompt and
lies in its application of a mere theoretical assumption sure-footed in using the power of presidential decree under
based on the experiences of other nations on an entirely martial law for this purpose. He has zeroed in on areas which
different factual setting. Such an assumption flounders on
the rock of reality. _______________
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
371 * Panorama, May 6, 1973.
372
VOL. 50, MARCH 31, 1973 371
It is true that as a general rule martial law is the use of
military forces to perform the functions of civil government. have been widely recognized as prime sources of the nation’s
Some courts have viewed it as a military regime which can difficulties — land tenancy, official corruption, tax evasion and
be imposed in emergency situations. In other words, abuse of oligarchic economic power. Clearly he knows his targets
martial rule exists when the military rises superior to the ... there is marked public support for his leadership...” (Bulletin
civil power in the exercise of some or all the functions of Today, March 3 and 4, 1973).
government. Such is not the case in this country. The
government functions thru its civilian officials. The In a similar vein, C.L. Sulzberger, a foreign affairs
supremacy of the civil over the military authority is columnist wrote, in the April 11 issue of The New York
manifest. Except for the imposition of curfew hours and Times:
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 During his first Presidential term (1965-1969), Mr. Marcos was
contain the oppressive features, generally associated with a discouraged by the failure of legislators to approve urgently
regime of Martial law in other countries. “Upon the other needed reforms. He found his second term further frustrated by
hand the masses of our people have accepted it, because of spread riots, a Maoist uprising in Luzon and a much more serious
its manifold blessings. The once downtrodden rice tenant Moslem insurrection in the southern islands from Mindanao
has at long last been emancipated — a consummation across the Sulu archipelago to the frontier regions of Malaysia
devoutly wished by every Philippine President since the and Indonesia. Manila claims this war is Maoist-coordinated.
1930’s. The laborer now holds his head high because his Mr. Marcos has now in effect taken all the reins of power and
rights are amply protected and respected.”* A new sense of makes no promise as to when he will relinquish them. But, while
discipline has swiftly spread beyond the corridors of fettering a free press, terminating Congress and locking up some
government into the social order. Responding to the opponents (many of whom were later amnestied), he has hauled
challenges of the New Society, the people have turned in the Philippines out of stagnation.
half a million loose firearms, paid their taxes on undeclared Sharecropping is being ended as more than three million acres
goods and income in unprecedented numbers and amount, of arable land are redistributed with state funds. New roads have
lent their labors in massive cooperation — in land reform, been started. The educational system is undergoing revision, a

corruption is diminished. In non-communist Asia it is virtually exercising judicial power.” (Luther v. Borden, 48 U.S. [7
impossible to wholly end it and this disagreeable phenomenon How.] 1, 12 L. Ed. 598.)
still reaches very high. In other words, where a complete change in the
Mr. Marcos, an imaginative, gifted man, hopes to reshape fundamental law has been effected through political action,
society by creating an agrarian middle-class to replace the archaic the Court whose existence is affected by such change is, in
sharecropper-absentee landlord relationship. He is even pushing the words of Mr. Melville Fuller Weston, “precluded from
for a birth control program with the tacit acceptance of the passing upon the fact of change by a logical difficulty which
Catholic Church. He has started labor reforms and increased is not to be surmounted.”5 Such change in the organic law
wages. (Daily Express, April 15, 1973) relates to the
As explained in this writer’s opinion of April 24, 1973 on

_______________
the “Constancia” and “Manifestation” of counsel for
5 “A written constitution is susceptible of change in two ways: by
petitioners:
revolution, which implies action not pursuant to any provision of the
The new Constitution is considered effective “if the
constitution itself; and by revision, which implies action pursuant to some
norms created in conformity with it are by and large
procedural provision in the constitution. This distinction is concerned with
applied and obeyed. As soon as the old Constitution loses
the quare and not with the quantum of change. It may be significant,
its effectiveness
however, that the alleged alteration does or does not purport to affect the
373 existence of the court itself. In
374
VOL. 50, MARCH 31, 1973 373
and the new Constitution has become effective, the acts
that appear with the subjective meaning of creating or
existence of a prior point in the Court’s “chain of title” to
applying legal norms are no longer interpreted by
its authority and “does not relate merely to a question of
presupposing the old basic norm, but by presupposing the
new one. The statutes issued under the old Constitution the
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 nature of things, a revolutionary charge does not admit judicial power
The essentially political nature of the question is at once as such to determine the fact of its occurrence. If revolutionary
made manifest by understanding that in the final analysis, constitution sets up a court differently constituted from the pre-
what is assailed is not merely the validity of Proclamation revolutionary court, neither tribunal is confronted with a substantial
No. 1102 of the President, which is merely declaratory of problem, for neither can deny the act by which it was created without
the fact of approval or ratification, but the legitimacy of the denying the fact of its creation. Thus the Supreme Court in Luther v.
government. It is addressed more to the framework and Borden (supra) uses language substantially parallel with what has been
political character of this Government which now functions indicated above as logical explanation of the Duke of York’scase. For the
under the new Charter. It seeks to nullify a Constitution court to give serious judicial consideration to such a question would
that is already effective. present “the singular spectacle of a court sitting as a court to declare that
In such a situation, We do not see how the question we are not a court.” (Brittle v. People, 2 Neb. 198, 214 [1873].) And even
posed by petitioners could be judicially decided. “Judicial the alleged new constitution purports to leave intact the former court and
power presupposes an established government capable of to permit its work to go on without hiatus, the decision which the judges
enacting laws and enforcing their execution, and of must make is still an individual choice to be made by them as a matter of
appointing judges to expound and administer them. If it practical politics. Two commissions are being held out to them, and if they
decides at all as a court, it necessarily affirms the existence will act as a court they must assess under which commission they are
and authority of the government under which it is acting. To put the matter another way, it must be true that in the first
case above — of two constitutions purporting to establish two different

courts, — the men who were judges under the old regime and the men probably do no affect the tenure of many offices of any branch of the
who are called to be judges under the new have each to decide as government. The popular inertia is likely to allow the court successfully to
individuals what they are to do; and it may be that they choose at grave assume the question to be one of law. The path of fallacy is not too
peril with the factional outcome still uncertain. And, although it is equally strikingly fallacious to the uncritical observer. It may lead to just results.
obvious, the situation is logically identical where the same men are The judges’ personal inclinations will be to show deference to the
nominated to constitute the court under both the old and new constitution, expression of popular sentiment which has been given. And yet, if they
at a time when the alleged change is occurring — if it is — peaceably and declare the change in force, they are truly making a personal declaration
against a placid popular background. Men under such circumstances may that they believe the change to be the directly expressed will of the
write most praiseworthily principles of statesmanship, upon sovereignty sovereign, which will they assert to be law, but the fact of existence of
and, its nature modes of action, and upon the bases of government, to which will — and this is the real decision — is not ascertainable in the
justify the choice between the two commissions. They can assert their given case by any legal means. It is submitted that this is true, and that
choice in the course of purported judicial action. But they cannot decide as the conclusions offered in the discussion of revolutionary change are true,
a court, for the decision, once made, by a retroactive hypothesis excludes also, whether the quantum of change involved be vast or almost negligible.
any assumption of controversiality in the premises. “The net result of the preceding discussion is this: that in almost the
“Where the alleged change occurs not through revolutionary measures whole field of problems which the Duke of York’s case and the American
but through what has been called revision, these logical difficulties constitutional amendment cases present, the court as a court is precluded
disappear in one aspect, but become far more embarrassing in another. from passing upon the fact of change by a logical difficulty which is not to
Where the alteration purports to be made along the lines of a procedural be surmounted. It follows that there is no room for considering whether
method laid down in the constitution, there is a standard which the court the court ought graciously and deferentially to look to the executive or
can apply and, by so legislative for a decision that a change has or has not taken place.
375 376
horizontal distribution of powers.”6 It involves in essence political departments of government or has reserved to be
a matter which “the sovereign has entrusted to the so- settled by its own extra governmental action.”7
called 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
doing, it can perceive judicially whether or not the change has followed Frankfurter, in his illuminating dissent in Baker v. Carr,
the prescribed lines. If it has, there is no difficulty in pronouncing as a 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), “a class of
matter of law its accomplishment. Only one exception is possible, namely, controversies which do not lend themselves to judicial
the ease where the alteration purports at once to abolish the court or to standards and judicial remedies. To classify the various
depose its personnel. Then, although there would be a question of law to instances as “political questions” is rather a form of stating
be decided, it may be wondered who there is to decide it. Suppose, this conclusion than revealing of analysis ... The crux of the
however, the mode of change has failed in some way to conform to a matter is that courts are not fit instruments of decision
directory provision of the amending clause of the constitution; is the court where what is essentially at stake is the composition of
to declare the attempt at alteration unsuccessful? It would seem as a those large contests of policy traditionally fought out in
matter of law that it must do so; and yet what is the situation if the non-judicial forums, by which governments and the actions
proponents of the change say, “It is true that this measure failed under of governments are made and unmade.”
the amending clause, but as a revolutionary measure it was a success and The diversity of views contained in the opinions of the
we insist upon its recognition.” Clearly the members of the court are now members of this Court, in the cases at bar, cannot be a case
more badly than ever entangled in the logical difficulties which attend a on “right” or “wrong” views of the Constitution. It is one of
purported judicial pronouncement upon the achievement or non- attitudes and values. For there is scarcely any principle,
achievement of revolutionary change. For the temptation will be great to authority or interpretation which has not been countered
treat the matter as a legal question. The times are peaceful. The changes by the opposite. At bottom, it is the degree of one’s faith —
in the nation’s leadership and in the maturity of judgment Sec. 2. Convention. The legislature may call
of our people. constitutional conventions at any time.
IN VIEW OF THE FOREGOING, the dismissal of these Sec. 3. Call by referendum. If during any ten-year period
five cases, and the conclusion of this Court in its judgment a constitutional convention has not been held, the secretary
of March question becomes wholly moot except for this of state shall place on the ballot for the next general
consideration, that, when the judges as individuals or as a election the question: “Shall there be a Constitutional
body of individuals come to decide which king or which Convention?” If a majority of the votes cast on the question
constitution they will support and assert to represent, it are in the negative, the question need not be placed on the
may often be good judgment for them to follow the lead of ballot until the end of the next ten-year period. If a
the men who as a practical matter are likely to be looked to majority of the votes cast on the question are in the
by the people as more representative of themselves and affirmative, delegates to the convention shall be chosen at
conversely are likely to be more directly in touch with the next regular statewide election, unless the legislature
popular sentiment. If, however, the judges hold too strong provides for the election of the election delegates at a
views of their own to be able to take this course, they may special election. The secretary of state shall issue the call
follow their own leads at their own hazard. No question of for the convention. Unless other provisions have been made
law is involved. (Political Questions, 38 Harvard Law by law, the call shall conform as nearly as possible to the
Review [1924-25], pp. 305-309.) act calling the Alaska Constitutional Convention of 1955,
378
_______________
6 & 7 Ibid., pp. 301, 305.
377
VOL. 50, MARCH 31, 1973 377 including, but not limited to, number of members, districts,
Javellana vs. The Executive Secretary election and certification of delegates, and submission and
ratification of revisions and ordinances. x x x.
Sec. 4. Powers. Constitutional conventions shall have
31, 1973 are fully justified. plenary power to amend or revise the constitution, subject
only to ratification by the people. No call for a
Barredo, Makasiar and Esguerra, JJ., concur. constitutional convention shall limit these powers of the
convention.
APPENDIX TO OPINION 2. California (1879) — Art. XVIII. Amending and Revising
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283) the Constitution.
PROVISIONS OF STATE CONSTITUTIONS Sec. 1. Constitutional amendments. Any amendment or
SPECIFICALLY PROVIDING FOR AMENDMENT AND amendments to this Constitution may be proposed in the
REVISION @ Senate or Assembly, and if two-thirds of all the members
elected to each of the houses shall vote in favor thereof,
1. Alaska (1959) — Art. XIII. Amendment and Revision. such proposed amendment or amendments shall be entered
Sec. 1. Amendments. Amendments to this constitution in their Journals, with the yeas and nays taken thereon;
may be proposed by a two-thirds vote of each house of the and it shall be the duty of the Legislature to submit such
legislature. The secretary of state shall prepare a ballot proposed amendment or amendments to the people in such
title and proposition summarizing each proposed manner, and at such time, and after such publication as
amendment, and shall place them on the ballot for the next may be deemed expedient. Should more amendments than
statewide election. If a majority of the votes cast on the one be submitted at the same election they shall be so
proposition favor the amendment, it becomes effective prepared and distinguished, by numbers or otherwise, that
thirty days after the certification of the election returns by each can be voted on separately. If the people shall approve
the secretary of state. 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 convention, designate the day, hour and place of its
this constitution. meeting; fix the pay of its members and officers, and
Sec. 2. Constitutional convention. Whenever two-thirds provide for the payment of the same, together with the
of the members elected to each branch of the Legislature necessary expenses of the convention. Before proceeding,
shall deem it necessary to revise this Constitution, they the members shall take an oath to support the constitution
shall recommend to the electors to vote at the next general of the United States, and of the state of Colorado, and to
for or against a Convention for that purpose, and if a faithfully discharge their duties as members of the
majority of the electors voting at such election on the convention. The qualifications of members shall be the
proposition for a Convention shall vote in favor thereof, the same as of members of the senate; and vacancies occurring
Legislature shall, at its next session, provide by law for shall be filled in the manner provided for filling vacancies
calling the same. The Convention shall consist of a number in the general assembly. Said convention shall meet within
of delegates not to exceed that of both branches of the three months after such election and prepare suchrevisions,
Legislature, who shall be chosen in the same manner, and alterations or amendments to the constitution as may be
have the same qualifications, as Members of the deemed necessary; which shall be submitted to the electors
Legislature. The delegates so elected shall meet within for their ratification or rejection at an election appointed by
three months after their election at such place as the convention for that purpose, not less
379 380
the Legislature may direct. At a special election to be than two nor more than six months after adjournment
provided for by law, the Constitution that may be agreed thereof; and unless so submitted and approved by a
upon by such Convention shall be submitted to the people majority of the electors voting at the election, no such
for their ratification or rejection, in such manner as the revision, alteration or amendment shall take effect.
Convention may determine. The returns of such election Sec. 2. Amendments to constitution; how adopted. Any
shall, in such manner as the Convention shall direct, be amendment or amendments to this constitution may be
certified to the Executive of the State, who shall call to his proposed in either house of the general assembly, and if the
assistance the Controller, Treasurer, and Secretary of same shall be voted for by two-thirds of all the members
State, and compare the returns so certified to him; and it elected to each house, such proposed amendment or
shall be the duty of the Executive to declare, by his amendments, together with the ayes and noes of each
proclamation, such Constitution, as may have been ratified house hereon, shall be entered in full on their respective
by a majority of all the votes cast at such special election, journals; the proposed amendment or amendments shall be
to be the Constitution of the State of California. published with the laws of that session of the general
3. Colorado (1876) — Art. XIX. Amendments. assembly, and the secretary of state shall also cause the
Sec. 1. Constitutional convention; how called. The said amendment or amendments to be published in full in
general assembly may at any time be a vote of two-thirds of not more than one newspaper of general circulation in each
the members elected to each house, recommend to the county, for four successive weeks previous to the next
electors of the state, to vote at the next general election for general election for members of the general assembly; and
or against a convention to revise, alter and amend this at said election the said amendment or amendments shall
constitution; and if a majority of those voting on the be submitted to the qualified electors of the state for their
question shall declare in favor of such convention, the approval or rejection, and such as are approved by a
general assembly shall, at the next session, provide for the majority of those voting thereon shall become part of this
calling thereof. The number of members of the convention constitution.
shall be twice that of the senate and they shall be elected in Provided, that if more than one amendment be
the same manner, at the same places, and in the same submitted at any general election, each of said
districts. The general assembly shall, in the act calling the amendments shall be voted upon separately and votes
thereon cast shall be separately counted the same as at the Capital of the State on the first Tuesday in
though but one amendment was submitted. But the general September next after their election. Every delegate shall
assembly shall have no power to propose amendments to receive for his services such compensation as shall be
more than six articles of this constitution at the same provided by law. A majority of the Convention shall
session. constitute a quorum for the transaction of business. The
4. Delaware (1897) — Art. XVI. Amendments and Convention shall have the power to appoint such officers,
Conventions. employees and assistants as it may be deem necessary, and
Sec. 1. Proposal of constitutional amendments in general fix their compensation, and provide for the printing of its
assembly; procedure. Any amendment or amendments to documents, journals, debates and proceedings. The
this Constitution may be proposed in the Senate or House Convention shall determine the rules of its proceedings,
of Representatives; and if the same shall be agreed to by and be the judge of the elections, returns and qualifications
two-thirds of all the members elected to each House, such of its members. Whenever there shall be a vacancy in the
proposed amendment or amendments shall be entered on office of delegate from any district or county by reason of
their journals, with the yeas and nays taken thereon, and failure to elect, ineligibility, death, resignation or
the otherwise, a writ of election to fill such vacancy shall be
issued by the Governor, and such vacancy shall be filled by
381
the
382
VOL. 50, MARCH 31, 1973 381
Secretary of State shall cause such proposed amendment or Javellana vs. The Executive Secretary
amendments to be published three months before the next
general election in at least three newspapers in each qualified electors of such district or county.
County in which such newspaper shall be published; and if 5. Florida (1887) — Art. XVII. Amendments.
in the General Assembly next after the said election such Sec. 1. Method of amending constitution. Either branch
proposed amendment or amendments shall upon yea and of the Legislature, at any regular session, or at any special
nay vote be agreed to by two-thirds of all the members or extra-ordinary session thereof called for such purpose
elected to each House, the same shall thereupon become part either in the governor’s original call or any amendment
of the Constitution. thereof, may propose the revision or amendment of any
Sec. 2. Constitutional conventions; procedure; portion or portions of this Constitution. Any such revision
compensation of delegates; quorum; powers and duties; or amendment may relate to one subject or any number of
vacancies. The General Assembly by a two-thirds vote of all subjects, but no amendment shall consist of more than one
the members elected to each House may from time to time revised article of the Constitution.
provide for the submission to the qualified electors of the If the proposed revision or amendment is agreed to by
State at the general election next thereafter the question, three-fifths of the members elected to each house, it shall
“Shall there be a Convention to revise the Constitution and be entered upon their respective journals with the yeas and
amend the same?”; and upon such submission, if a majority nays and published in one newspaper in each county where
of those voting on said question shall decide in favor of a a newspaper is published for two times, one publication to
Convention for such purpose, the General Assembly at its be made not earlier than ten weeks and the other not later
next session shall provide for the election of delegates to than six weeks, immediately preceding the election at
such convention at the next general election. Such which the same is to be voted upon, and thereupon
Convention shall be composed of forty-one delegates, one of submitted to the electors of the State for approval or
whom shall be chosen from each Representative District by rejection at the next general election, provided, however,
the qualified electors thereof, and two of whom shall be that such revision or amendment may be submitted for
chosen from New Castle County, two from Kent County approval or rejection in a special election under the
and two from Sussex County by the qualified electors conditions described in and in the manner provided by
thereof respectively. The delegates so chosen shall convene Section 3 of Article XVII of the Constitution. If a majority
of the electors voting upon the amendment adopt such Sec. 3. Revision or amendments by convention. Whenever
amendment the same shall become a part of this two-thirds of the members elected to each branch of the
Constitution. legislature shall deem it necessary to call a convention to
Sec. 2. Method of revising constitution. If at any time the revise or amend this Constitution, they shall recommend to
Legislature, by a vote of two-thirds of all the members of the electors to vote at the next general election, for or
both Houses, shall determine that a revision of this against a convention, and if a majority of all the electors
Constitution is necessary, such determination shall be voting at said election shall have voted for a convention,
entered upon their respective Journals, with yea’s and the legislature shall at the next session provide by law for
nay’s thereon. Notice of said action shall be published calling the same; and such convention shall consist of a
weekly in one newspaper in every county in which a number of members, not less than double the number of
newspaper is published, for three months preceding the the most numerous branch of the legislature.
next general election of Representatives, and in those 7. Iowa (1857) — Art. X. Amendments to the Constitution.
countries where no newspaper is published, notice shall be
384
given by posting at the several polling precincts in such
383
VOL. 50, MARCH 31, 1973 383
Sec. 3. Convention. At the general election to be held in
counties for six weeks next preceding said election. The the year one thousand eight hundred and seventy, and in
electors at said election may vote for or against the revision each tenth year thereafter, and also at such times as the
in question. If a majority of the electors so voting be in General Assembly may, by law, provide, the question,
favor of revision, the Legislature chosen at such election “Shall there be a Convention to revise the Constitution, and
shall provide by law for a Convention to revise the amend the same?” shall be decided by the electors qualified
Constitution, said Convention to be held within six months to vote for members of the General Assembly; and in case a
after the passage of such law. The Convention shall consist majority of the electors so qualified, voting at such election,
of a number equal to the membership of the House of for and against such proposition, shall decide in favor of a
Representatives, and shall be apportioned among the Convention for such purpose, the General Assembly, at its
several counties in the same manner as members of said next session, shall provide by law for the election of
House. delegates to such Convention.
6. Idaho (1890) — Art. XIX. Amendments. 8. Michigan (1909) — Art. XVII. Amendments and
Sec. 1. How amendments may be proposed. Any Revision.
amendment or amendments to this Constitution may be Sec. 1. Amendments to constitution; proposal by
proposed in either branch of the legislature, and if the legislature; submission to electors. Any amendment or
same shall be agreed to by two-thirds of all the members of amendments to this constitution may be proposed in the
each of the two houses, voting separately, such proposed senate or house of representatives. If the same shall be
amendment or amendments shall, with the yeas and nays agreed to by 2/3 of the members elected to each house, such
thereon, be entered on their journals, and it shall be the amendment or amendments shall be entered on the
duty of the legislature to submit such amendment or journals, respectively, with the yeas and nays taken
amendments to the electors of the state at the next general thereon; and the same shall be submitted to the electors at
election, and cause the same to be published without delay the next spring or autumn election thereafter, as the
for at least six consecutive weeks, prior to said election, in legislature shall direct; and, if a majority of the electors
not less than one newspaper of the general circulation qualified to vote for members of the legislature voting
published in each county; and if a majority of the electors thereon shall ratify and approve such amendment or
shall ratify the same, such amendment or amendments amendments, the same shall become part of the
shall become a part of this Constitution. constitution.

Sec. 4. General revision; convention; procedure. At the amendments shall be published with the laws which have
Biennial Spring Election to be held in the year 1961, in been passed at the same session, and said amendments
each sixteenth year thereafter and at such times as may be shall be submitted to the people for their approval or
provided by law, the question of a General Revision of the rejection at any general election, and if it shall appear, in a
Constitution shall be submitted to the Electors qualified to manner to be provided by law, that a majority of all the
vote for members of the Legislature. In case a majority of electors voting at said election shall have voted for and
the Electors voting on the question shall decide in favor of ratified such alterations or amendments, the same shall be
a Convention for such purpose, at an Election to be held not valid to all intents and purposes as a part of this
later than four months after the Proposal shall have been Constitution. If two or more alterations or amendments
certified as approved, the Electors of each House of shall be submitted at the same time, it shall be so
Representatives District as then organized shall Elect One regulated that the voters shall vote for or against each
Delegate for each Electors of each Senatorial District as separately.
then organized shall Elect One Delegate for each State
386
Senator to which the District
385 386 SUPREME COURT REPORTS ANNOTATED
VOL. 50, MARCH 31, 1973 385
Sec. 2. Revision of constitution. Whenever two-thirds of
the members elected to each branch of the legislature shall
is entitled. The Delegates so elected shall convene at the
think it necessary to call a convention to revise this
Capital City on the First Tuesday in October next
Constitution, they shall recommend to the electors to vote
succeeding such election, and shall continue their sessions
at the next general election for members of the legislature,
until the business of the convention shall be completed. A
for or against a convention; and if a majority of all the
majority of the delegates elected shall constitute a quorum
electors voting at said election shall have voted for a
for the transaction of business. x x x No proposed
convention, the legislature shall, at their next session,
constitution or amendment adopted by such convention
provide by law for calling the same. The convention shall
shall be submitted to the electors for approval as
consist of as many members as the House of
hereinafter provided unless by the assent of a majority of
Representatives, who shall be chosen in the same manner,
all the delegates elected to the convention, the yeas and
and shall meet within three months after their election for
nays being entered on the journal. Any proposed
the purpose aforesaid.
constitution or amendments adopted by such convention
Sec. 3. Submission to people of revised constitution
shall be submitted to the qualified electors in the manner
drafted at convention. Any convention called to revise this
provided by such convention on the first Monday in April
constitution shall submit any revision thereof by said
following the final adjournment of the convention; but, in
convention to the people of the State of Minnesota for their
case an interval of at least 90 days shall not intervene
approval or rejection at the next general election held not
between such final adjournment and the date of such
less than 90 days after the adoption of such revision, and, if
election. Upon the approval of such constitution or
it shall appear in the manner provided by law that three-
amendments by a majority of the qualified electors voting
fifths of all the electors voting on the question shall have
thereon such constitution or amendments shall take effect
voted for and ratified such revision, the same shall
on the first day of January following the approval thereof.
constitute a new constitution of the State of Minnesota.
9. Minnesota (1857) — Art. XIV. Amendments to the
Without such submission and ratification, said revision
Constitution.
shall be of no force or effect. Section 9 of Article IV of the
Sec. 1. Amendments to constitution; majority vote of
Constitution shall not apply to election to the convention.
electors voting makes amendment valid. Whenever a
10. Nevada (1864) — Art. 16. Amendments.
majority of both houses of the legislature shall deem it
Sec. 1. Constitutional amendments; procedure. Any
necessary to alter or amend this Constitution, they may
amendment or amendments to this Constitution may be
proposed such alterations or amendments, which proposed
proposed in the Senate or Assembly; and if the same shall among the others for the meeting, to wit, to take the sense
be agreed to by a Majority of all the members elected to of the qualified voters on the subject of a revision of the
each of the two houses, such proposed amendment or constitution; and, the meeting being warned accordingly,
amendments shall be entered on their respective journals, and not otherwise, the moderator shall take the sense of
with the Yeas and Nays taken thereon, and referred to the the
Legislature then next to be chosen, and shall be published
388
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 388 SUPREME COURT REPORTS ANNOTATED
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
qualified voters present as to the necessity of a revision;
387 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
VOL. 50, MARCH 31, 1973 387
if, it shall appear to the general court by such return, that
Javellana vs. The Executive Secretary the sense of the people of the state has taken, and that, in
the opinion of the majority of the qualified voters in the
or amendments to the people, in such manner and at such state, present and voting at said meetings, there is a
time as the Legislature shall prescribe; and if the people necessity for a revision of the constitution, it shall be the
shall approve and ratify such amendment or amendments duty of the general court to call a convention for that
by a majority of the electors qualified to vote for members purpose, otherwise the general court shall direct the sense
of the Legislature voting thereon, such amendment or of the people to be taken, and then proceed in the manner
amendments shall become a part of the Constitution. before mentioned. The delegates to be chosen in the same
Sec. 2. Convention for revision of constitution; procedure. manner, and proportioned, as the representatives to the
If at any time the Legislature by a vote of two-thirds of the general court; provided that no alterations shall be made in
Members elected to each house, shall determine that it is this constitution, before the same shall be laid before the
necessary to cause a revision of this entire Constitution towns and unincorporated places, and approved by two
they shall recommend to the electors at the next election thirds of the qualified voters present and voting on the
for Members of the Legislature, to vote for or against a subject.
convention, and if it shall appear that a majority of the 12. Oklahoma (1907) — Art. XXIV. Constitutional
electors voting at such election, shall have voted in favor of Amendments.
calling a Convention, the Legislature shall, at its next Sec. 1. Amendments proposed by legislature; a
session provide by law for calling a Convention to be held submission to vote. Any amendment or amendments to this
within six months after the passage of such law, and such Constitution may be proposed in either branch of the
Convention shall consist of a number of Members not less Legislature, and if the same shall be agreed to by a
that of both branches of the legislature. In determining majority of all the members elected to each of the two
what is a majority of the electors voting such election, houses, such proposed amendment or amendments shall,
reference shall be had to the highest number of vote cast at with yeas and nays thereon, be entered in their journals
such election for the candidates of any office or on any and referred by the Secretary of State to the people for
question. their approval or rejection, at the next regular general
11. New Hampshire (1784) — election, except when the Legislature, by a two-thirds vote
Art. 99. Revision of constitution provided for. It shall be of each house, shall order a special election for that
the duty of the selectmen, and assessors, of the several purpose. If a majority of all the electors voting at such
towns and places in this state, in warning the first annual election shall vote in favor of any amendment thereto, it
meetings for the choice of senators, after the expiration of shall thereby become a part of this Constitution.
seven years from the adoption of this constitution, as If two or more amendments are proposed they shall be
amended, to insert expressly in the warrant this purpose, submitted in such manner that electors may vote for or
against them separately. state in the presence of the governor, and if it shall appear
No proposal for the amendment or alteration of this to the governor that the majority of the votes cast at said
Constitution which is submitted to the voters shall election on said amendment, or amendments, severally, are
embrace more than one general subject and the voters shall cast in favor thereof, it shall be his duty forthwith after
vote separately for or against each proposal submitted; such canvass, by his proclamation, to declare the said
provided, however, that in the submission of proposals for amendment, or amendments, severally, having received
the amendment of this Constitution by articles, which said majority of votes to have been adopted by the people of
embrace one general subject, each proposed article shall be Oregon as part of the Constitution thereof, and the same
deemed a single shall be in effect as a part of the Constitution from the date
of such proclamation. When two or more amendments
389
390
VOL. 50, MARCH 31, 1973 389

proposals or proposition
Sec. 2. Constitutional convention to propose amendments shall be submitted in the manner aforesaid to the voters of
or new constitution. No convention shall be called by the this state at the same election, they shall be so submitted
Legislature to propose alterations, revisions, or that each amendment shall be voted on separately. No
amendments to this Constitution, or to propose a new convention shall be called to amend or propose
Constitution, unless the law providing for such convention amendments to this Constitution, or to propose a new
shall first be approved by the people on a referendum vote Constitution, unless the law providing for such convention
at a regular or special election, and any amendments, shall first be approved by the people on a referendum vote
alterations, revisions, or new Constitution, proposed by at a regular general election. This article shall not be
such convention, shall be submitted to the electors of the construed to impair the right of the people to amend this
State at a general or special election and be approved by a Constitution by vote upon an initiative petition therefor.
majority of the electors voting thereon, before the same Sec. 2. Method of revising constitution. (1) In addition to
shall become effective Provided, That the question of such the power to amend this Constitution granted by section 1,
proposed convention shall be submitted to the people at Article IV, and section 1 of this Article, a revision of all or
least once in every twenty years. part of this Constitution may be proposed in either house of
13. Oregon (1859) — Art. XVII. Amendments and the Legislative Assembly and, if the proposed revision is
Revisions. agreed to by at least two-thirds of all the members of each
Sec. 1. Method of amending constitution. Any house, the proposed revision shall, with the yeas and nays
amendment or amendments to this Constitution may be thereon, be entered in their journals and referred by the
proposed in either branch of the legislative assembly, and if Secretary of State to the people for their approval or
the same shall be agreed to by a majority of all the rejection, notwithstanding section 1, Article IV of this
members elected to each of the two houses, such proposed Constitution, at the next regular state-wide primary
amendment or amendments shall, with the yeas and nays election, except when the Legislative Assembly orders a
thereon, be entered in their journals and referred by the special election for that purpose. A proposed revision may
secretary of state to the people for their approval or deal with more than one subject and shall be voted upon as
rejection, at the next regular election, except when the one question. The votes for and against the proposed
legislative assembly shall order a special election for that revision shall be canvassed by the Secretary of State in the
purpose. If a majority of the electors voting on any such presence of the Governor and, if it appears to the Governor
amendment shall vote in favor thereof, it shall thereby that the majority of the votes cast in the election on the
become a part of this Constitution. The votes for and proposed revision are in favor of the proposed revision, he
against such amendment, or amendments, severally, shall, promptly following the canvass, declare, by his
whether proposed by the legislative assembly or by proclamation, that the proposed revision has received a
initiative petition, shall be canvassed by the secretary of majority of votes and has been adopted by the people as the
Constitution of the State of Oregon, as the case may be. legislature to submit such amendment or amendments to
The revision shall be in effect as the Constitution or as a the electors of the state at the next general election, in at
part of this Constitution from the date of such least one newspaper of general circulation, published in
proclamation. each county, and if a majority of the electors shall ratify
14. Utah (1896) — Art. 23. Amendments. the same, such amendment or amendments shall become a
Sec. 1. Amendments; method of proposal and approval. part of this constitution.
Any amendments to his Constitution may be proposed in
392
either house of the Legislature, and if two-thirds of all the
members elected of the two houses, shall vote
391
VOL. 50, MARCH 31, 1973 391

Javellana vs. The Executive Secretary 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.
in favor thereof, such proposed amendment or amendments
Sec. 3. Constitutional convention; provision for.
shall be entered on their respective journals with the yeas
Whenever two-thirds of the members elected to each
and nays taken thereon; and the Legislature shall cause
branch of the legislature shall deem it necessary to call a
the same to be published in at least one newspaper in every
convention to revise or amend this constitution, they shall
county of the State, where a newspaper is published, for
recommend to the electors to vote at the next general
two months immediately preceding the next general
election for or against a convention, and if a majority of all
election, at which time the said amendment or
the electors voting at such election shall have voted for a
amendments shall be submitted to the electors of the State,
convention, the legislature shall at the next session provide
for their approval or rejection, and if a majority of the
by a law for calling the same; and such convention shall
electors voting thereon shall approve the same, such
consist of a number of members, not less than double that
amendment or amendments shall become part of this
of the most numerous branch of the legislature.
Constitution. If two or more amendments are proposed,
Sec. 4. New constitution. Any constitution adopted by
they shall be so submitted as to enable the electors to vote
such convention shall have no validity until it has been
on each of them separately.
submitted to and adopted by the people.
Sec. 2. Revision of the Constitution by convention.
——o0o——
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 @ The inclusion in the Appendix of provisions for Amendment and
election, for or against a convention, and, if a majority of all Revision in State Constitutions, adopted after 1935, is only to stress the
the electors, voting at such election, shall vote for a fact that the distinction between Amendment and Revision of
convention. The Legislature, at its next session, shall Constitution, which existed at the time of the adoption of the 1935
provide by law for calling the same. The convention shall Constitution, has continued up to the present.
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
© Copyright 2023 Central Book Supply, Inc. All rights reserved.
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

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8/22/23, 4:22 PM SUPREME COURT REPORTS ANNOTATED VOLUME 050 8/22/23, 4:22 PM SUPREME COURT REPORTS ANNOTATED VOLUME

3, 4:22 PM SUPREME COURT REPORTS ANNOTATED VOLUME 050

No. L-36283. March 31, 1973.

No. L-36142. March 31, 1973.

Constitutional law; Amendments; Four Justices hold that the

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Javellana vs. The Executive Secretary 35

Constitution. VOL. 50, MARCH 31, 1973 35

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the voting was conducted in the Citizens Assemblies, assuming

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a constitutional amendment is a vital element in the procedure to

sovereignty, there has sprung a tradition of what has been aptly

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60 in relation to the question following it: —

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‘PROCLAMATION NO. 1102 ‘NOW, THEREFORE, I, FERDINAND E. MARCOS, President

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Makalintal, Castro, Teehankee and Esguerra opine that the issue

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Javellana vs. The Executive Secretary

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controlling, nor even persuasive in the present cases,

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III Constitution to the people”; and 2) Proclamation No. 1102

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Javellana vs. The Executive Secretary

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and voted in the Citizens’ Assemblies that have allegedly

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those specified in paragraph 2 hereof, and submit the

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certified in Proclamation No. 1102 “that the Constitution

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Javellana vs. The Executive Secretary

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