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7/27/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 050 7/27/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 050
DEFENSE, THE HONORABLE BUDGET COMMISSIONER, and THE

HONORABLE AUDITOR GENERAL, respondents.
Constitutional law; Doctrine of Separation of powers; Six Justices

agree that the issue of the validity of Proclamation 1102 (announcing the
ratification of the proposed Constitution) is a justiciable question; four

Justices differ.—On the first issue involving the political-question doctrine,
No. L-36142. March 31, 1973. Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and Chief
JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY, THE Justice Concepcion, or six (6) members of the Court, hold that the issue of
SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE and the validity of Proclamation 1102 presents a justiciable and non-justiciable
THE SECRETARY OF FINANCE, respondents. question. Justices Makalintal and Castro did not vote squarely on this
question, but, only inferentially, in their discussion of the second question.
No. L-36164. March 31, 1973. Justice Barredo qualified his vote, stating that “inasmuch as it is claimed
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, that there has been approval by the people, the Court may inquire into the
ANTONIO U. MIRANDA, EMILIO DE PERALTA AND LORENZO M. question of whether or not there has actually been such an approval, and, in
TAÑADA, petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY the affirmative, the Court should keep its hands-off out of respect to the
OF FINANCE, THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND people’s will, but, in the negative, the Court may determine from both
REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR factual and legal angles whether or not Article XV of the 1935 Constitution
GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF has been complied with.” Justices Makasiar, Antonio and Esguerra, or three
PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF (3) members of the Court hold that the issue is political and “beyond the
THE PHILIPPINES, THE COMMISSION ON ELECTIONS and THE ambit of judicial inquiry.”
COMMISSIONER OF CIVIL SERVICE, respondents. Same; Amendments; Six Justices agree that the Constitution proposed
by the 1971 Constitutional Convention has not been ratified validly
No. L-36165. March 31, 1973.
conformably to the applicable constitutional and statutory provisions; one
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H.
Justice qualifies his vote while the three others dissent.—On the second
LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-KALAW,
question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
petitioners, vs. ALEJANDRO MELCHOR, in his capacity as Executive
Fernando, Teehankee and Chief Justice Concepcion, or six (6) members of
Secretary; JUAN PONCE ENRILE, in his capacity as Secretary of
the Court also hold that the Constitution proposed by the 1971
National Defense; General ROMEO ESPINO, in his capacity as Chief
Constitutional Convention was not validly ratified in accordance with
of Staff of the Armed Forces of the Philippines; CONSTANCIO E.
Article XV, section 1 of the 1935 Constitution, which provides only one
CASTAÑEDA, in his capacity as Secretary of General Services;
way for ratification, i.e., “in an election or plebiscite held in accordance with
Senator GIL J. PUYAT, in his capacity as President of the Senate;
law and participated in only by qualified and duly registered voters.”
and Senator JOSE ROY, in his capacity as President Pro Tempore
of the Senate, respondents.
32
No. L-36236. March 31, 1973.

EDDIE B. MONTECLARO, [personally and in his capacity as President of 32 SUPREME COURT REPORTS ANNOTATED
the National Press Club of the Philippines], petitioner, vs. THE
EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE Javellana vs. The Executive Secretary
AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATION-
31
Justice Barredo qualified his vote while Justices Makasiar, Antonio and
al Treasurer, respondents. Esguerra, or three (3) members of the Court hold that under their view there
has been in effect substantial compliance with the constitutional
No. L-36283. March 31, 1973. requirements for valid ratification.
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, Same; Same; Four Justices hold that the proposed Constitution has
JR., and RAUL M. GONZALEZ, petitioners, vs. THE HONORABLE been acquiesced in by the people; two Justices hold that the people have not
EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL
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expressed themselves; one Justice thinks the doctrine of “Constitution by Concepcion voted that the Constitution proposed by the 1971 Constitutional
acquiescence” inapplicable; while the three other justices agree that they Convention is not in force; with the result that there are not enough votes to
lack the knowledge or competence to make a determination.—On the third declare that the new Constitution is not in force.
question of acquiescence by the Filipino people in the aforementioned
proposed Constitution, no majority vote has been reached by the Court. Concepcion, C.J., dissenting:
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio
Constitutional law; Courts; Only a majority of all the members of the
and Esguerra hold that “the people have already accepted the 1973
Supreme Court is required to annul an executive proclamation.—There is
Constitution.” Two (2) members of the Court, namely, Justice Zaldivar and
nothing either in the Constitution or in the Judiciary Act requiring the vote
Chief Justice Concepcion hold that there can be no free expression, and
of eight Justices to nullify a rule or regulation or an executive order issued
there has even been no expression, by the people qualified to vote all over
by the President. It is very significant that in the previous drafts of section
the Philippines, of their acceptance or repudiation of the proposed
10, Article VIII of the Constitution, “executive order” and “regulation” were
Constitution under Martial Law. Justice Fernando thinks that the doctrine of
included among those that required for their nullification the vote of two
“Constitution by acquiescence” cannot be applied at this time Justices
thirds of all the members of the Court. But “executive order” and
Makalintal and Castro are joined by Justice Teehankee in their statement
“regulation” were later deleted from the final draft (Aruego, The Framing of
that “Under a regime of martial law, with the free expression of opinions
the Philippine Constitution, Vol. 1, pp. 495, 496), and thus a mere majority
through the usual media vehicles restricted, (they) have no means of
of six members of this Court is enough to nullify them. x x x An executive
knowing, to the point of judicial certainty, whether the people have accepted
proclamation has no more than “the force of an executive order,” so that, for
the Constitution.”
the Supreme Court to declare such proclamation unconstitutional, under the
Remedial law; Certiorari; Six Justices voted to dismiss the petitions 1935 Constitution, the same number of votes needed to invalidate an
while the four others voted to give them due course.—On the fourth executive order, rule or regulation — namely, six (6) votes — would suffice.
question of relief, six (6) members of the Court, namely, Justices
Same; Same; The question of the effectivity of the new Constitution
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to
should be determined by applying the provisions of the former Constitution.
dismiss the petition. Justices Makalintal and Castro so voted on the strength
—As regards the applicability of the provisions of the proposed new
of their view that “the effectivity of the said Constitution, in the final
Constitution, approved by the 1971 Constitutional Convention, in the
analysis, is the basic and ultimate question posed by these cases to resolve
determination of the question whether or not it is now in force, it is obvious
which considerations other than judicial, and therefore beyond the
that such question depends upon whether or not the said new Constitution
competence of this Court, are relevant and unavoidable.” Four (4) members
has been ratified in accordance with the requirements of the 1935
of the Court, namely, Justices Zaldivar, Fernando, Teehankee and Chief
Constitution, upon the authority of which said Constitutional Convention
Justice Concepcion voted to deny respondents’ motion to dismiss and to
was called and approved the proposed Constitution. It is well settled that the
give due course to the petitions.
matter of ratification of an amendment to the Constitution should be settled
Constitutional law; Amendments; Four Justices hold that the new applying the provisions of the Constitution in force at the time of the alleged
Constitution of 1973 is in force; four Justices did not vote on the question; ratification of the old
while the remaining two Justices voted that the proposed
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34 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 33
Javellana vs. The Executive Secretary
Constitution.
Constitution is not in force.—On the fifth question of whether the new
Same; Doctrine of Separation of Powers; The validity of Proclamation
Constitution of 1973 is in force: Justices Barredo, Makasiar, Antonio and
1102 does not partake of the nature of a political, and, hence, nonjusticiable
Esguerra hold that it is in force by virtue of the people’s acceptance thereof;
question.—Referring to the issue on whether the new Constitution proposed
Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon
by the 1971 Constitutional Convention has been ratified in accordance with
on the premise stated in their votes on the third question that they could not
the provisions of Article XV of the 1935 Constitution is a political question
state with judicial certainty whether the people have accepted or not
or not, I do not hesitate to state that the answer must be in the negative.
accepted the Constitution; and Justice Zaldivar and Chief Justice
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Indeed, such is the position taken by this Court, in an endless line of Same; Same; Same; The votes of persons less than 21 years of age
decisions, too long to leave any room for possible doubt that said issue is renders the proceedings in the Citizens assemblies void.—It is thus clear
inherently and essentially justiciable. Such, also has been the consistent that the proceedings held in such Citizens’ Assemblies were fundamentally
position of the courts of the United States of America, whose decisions have irregular, in that persons lacking the qualifications prescribed in section 1 of
a persuasive effect in this jurisdiction, our constitutional system in the 1935 Art. V of the Constitution were allowed to vote in said assemblies. And,
Constitution being patterned after that of the United States. Besides, no since there is no means by which the invalid votes of those less than 21
plausible reason has, to my mind, been advanced to warrant a departure years of age can be separated or segregated from those of the qualified
from said position, consistently with the form of government established voters, the proceedings in the Citizens’ Assemblies must be considered null
under said Constitution. and void.
Same; Same; The issue of whether the exercise of a Constitutional Same; Same; Same; Viva voce voting for the ratification of the
power has met its conditions is justiciable.—When the grant of power is Constitution is void.—Article XV envisages — with the term “votes cast”
qualified, conditional or subject to limitations, the issue on whether or not — choices made on ballots — not orally or by raising hands — by the
the prescribed qualifications or conditions have been met, or the limitations persons taking part in plebiscites. This is but natural and logical, for, since
respected, is justiciable or non-political, the crux of the problem being one the early years of the American Regime, we had adopted the Australian
of legality or validity of the contested act, not its wisdom. Otherwise, said Ballot System, with its major characteristics, namely, uniform official
qualifications, conditions or limitations — particularly those prescribed or ballots prepared and furnished by the Government and secrecy in the voting,
imposed by the Constitution — would be set at naught. What is more, the with the advantage of keeping records that permit judicial inquiry, when
judicial inquiry into such issue and the settlement thereof are the main necessary, into the accuracy of the election returns. And the 1935
functions of courts of justice under the Presidential form of government Constitution has been so consistently interpreted in all plebiscites for the
adopted in our 1935 Constitution, and the system of checks and balances, ratification or rejection of proposed amendments thereto, from 1935 to
one of its basic predicates. As a consequence we have neither the authority 1967. Hence the viva voce voting in the Citizens’ Assemblies was and is
nor the discretion to decline passing upon said issue, but are under the null and void ab initio.
ineluctable obligation — made particularly more exacting and peremptory
by our oath, as members of the highest Court of the land, to support and Same; Same; Commission on Elections; The plebiscite on the
defend the Constitution — to settle it. Constitution, not having been conducted under the supervision of the
Comelec is void.—The point is that, such of the Barrio Assemblies as were
Same; Amendments; Elections; The right to vote is conferred by the
held took place without the intervention of the Commission on Elections
Constitution and the same may not be increased or diminished.— Article V
and without complying with the provisions of the Election Code of 1971 or
of the Constitution was meant to be and is a grant or conferment of a right
even of those of Presidential Decree No. 73. The procedure therein mostly
to persons possessing the qualifications and none of the disqualifications
followed is such that there is no reasonable means of checking the accuracy
therein mentioned, which in turn, constitute a limitation of or restriction to
of the returns filed by the officers who conducted said plebiscites. This is
said right,
another patent violation of
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VOL. 50, MARCH 31, 1973 35 36 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary Javellana vs. The Executive Secretary
and cannot accordingly, be dispensed with, except by constitutional Art. X of the Constitution which can be hardly sanctioned. And, since the
amendment. Obviously, every such constitutional grant or conferment of provisions of this article form part of the fundamental scheme set forth in
right is necessarily a negation of the authority of Congress or of any other the 1935 Constitution, as amended, to ensure the “free, orderly, and honest”
branch of the government to deny said right to the subject of the grant — expression of the people’s will, the aforementioned violation thereof renders
and, in this sense, only, may the same partake of the nature of a guarantee. null and void the contested proceedings or alleged plebiscite in the Citizens’
But, this does not imply, not even remotely, that the Fundamental Law Assemblies, insofar as the same are claimed to have ratified the revised
allows Congress or anybody else to vest in those lacking the qualifications Constitution proposed by the 1971 Constitutional Convention.
and having the disqualifications mentioned in the Constitution the right of
suffrage.
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Same; Same; The Presidential proclamation of the ratification of the 1935 Constitution. They have absolutely no other choice, specially in view
proposed Constitution, when assailed, may be inquired into.—A declaration of Proclamation No. 1081 placing the Philippines under Martial Law.
to the effect that a given amendment to the Constitution or revised or new Same; Same; A department of the Government cannot “recognize” its
Constitution has been ratified by a majority of the votes cast therefor, may own acts.—Then again, a given department of the Government cannot
be duly assailed in court and be the object of judicial inquiry, indirect generally be said to have “recognized” its own acts. Recognition normally
proceedings therefor — such as the cases at bar — and the issue raised connotes the acknowledgment by a party of the acts of another. Accordingly,
therein may and should be decided in accordance with the evidence when a subordinate officer or office of the Government complies with the
presented. commands of a superior officer or office, under whose supervision and
Same; Same; Proclamation 1102 is not an evidence of ratification.— control he or it is, the former merely obeys the latter. Strictly speaking, and
Inasmuch as Art. X of the 1935 Constitution places under “exclusive” from a legal and constitutional viewpoint, there is no act of recognition
charge of the Commission on Elections, “the enforcement and involved therein. Indeed, the lower officer or office, if he or it acted
administration of all laws relative to the conduct of election,” independently otherwise, would just be guilty of insubordination.
of the Executive, and there is not even a certification by the Commission in Same; Same; Individual acts of recognition by members of Congress do
support of the alleged results of the citizens’ assemblies relied upon in not constitute congressional recognition.—Individual acts of recognition by
Proclamation No. 1102 — apart from the fact that on January 17, 1973 members of our legislature, as well as of other collegiate bodies under the
neither the alleged president of the Federation of Provincial or City government, are invalid as acts of said legislature or bodies, unless its
Barangays nor the Department of Local Governments had certified to the members have performed said acts in session duly assembled, or unless the
President the alleged result of the citizens’ assemblies all over the law provides otherwise, and there is no such law in the Philippines. This is a
Philippines — it follows necessarily that, from a constitutional and legal well-established principle of Administrative Law and of the Law of Public
viewpoint, Proclamation No. 1102 is not even prima facie evidence of the Officers, and no plausible reason has been adduced to warrant departure
alleged ratification of the proposed Constitution. therefrom.
Same; Same; The citizens assemblies did not adopt the proposed Same; Same; The compliance by the people with the orders of the
Constitution.—Indeed, I can not, in good conscience, declare that the martial law government does not constitute acquiescence to the proposed
proposed Constitution has been approved or adopted by the people in the Constitution.—Neither am I prepared to declare that the people’s inaction as
citizens’ assemblies all over the Philippines, when it is, to my mind, a regards Proclamation No. 1102, and their compliance with a number of
matter of judicial knowledge that there have been no such citizens’ Presidential orders, decrees and/or instructions — some or many of which
assemblies in many parts of Manila and suburbs, not to say, also, in other have admittedly had salutary effects — issued subsequently thereto
parts of the Philippines. amounts, constitutes or attests to a ratification, adoption or approval of said
Same; Same; The acts of the executive department under martial law Proclamation No. 1102. The intimidation is there, and inaction or obedience
cannot be construed as an acquiescence to the proposed Constitution.—I of the people, under these conditions, is not necessarily an act of conformity
am not prepared to concede that the acts of the officers and offices of the or acquiescence.
Executive Department, in line with Proclamation No. 1102, connote a Same; Same; The “enrolled bill” rule does not apply to the acts of the
recognition thereof or an President in reference to powers he does not possess.—As
37 38
acquiescence thereto. Whether they recognized the proposed Constitution or regards the applicability to these cases of the “enrolled bill” rule, it is well to
acquiesce thereto or not is something that cannot legally, much less remember that the same refers to a document certified to the President — for
necessarily or even normally, be deduced from their acts in accordance his action under the Constitution — by the Senate President and the Speaker
therewith, because they are bound to obey and act in conformity with the of the House of Representatives, and attested to by the Secretary of the
orders of the President, under whose “control” they are, pursuant to the senate and the Secretary of the House of Representatives, concerning
legislative measures approved by the two House of Congress. Whereas,
7/326 8
Proclamation 1102 is an act of the President declaring the results of a passed Resolution No. 2 on March 16, 1967 calling a Convention for the
plebiscite on the proposed Constitution, an act which Article X of the 1935 revision of the 1935 Constitution.
Constitution denies the executive department of the Government. Same; Same; Same.—The Citizens Assemblies were not limited to
Remedial law; Certiorari; Due course should be granted to the qualified, let alone registered, voters, but included all citizens from the age
petitions there being more than prima facie showing of noncompliance with of fifteen, and regardless of whether or not they were illiterates, feeble-
the Constitution.—In all other respects and with regard to the other minded, or ex-convicts — these being the classes of persons expressly
respondents in said case, as well as in cases L-36142, L-36164, L-36236 and disqualified from voting by Section 102 of the Election Code. In short, the
L-36283, my vote is that the petitions therein should be given due course, constitutional and statutory qualifications were not considered in the
there being more than prima facie showing that the proposed Constitution determination of who should participate. No official ballots were used in the
has not been ratified in accordance with Article XV of the 1935 voting; it was done mostly by acclamation or pen show of hands. Secrecy,
Constitution, either strictly or substantially, or has been acquiesced in by the which is one of the essential features of the election process, was not
people or a majority thereof; that said proposed Constitution is not in force therefore observed. No set of rules for counting the votes or of tabulating
and effect; and that the 1935 Constitution is still the Fundamental Law of them and reporting the figures was prescribed or followed. The Commission
the Land, without prejudice to the submission of said proposed Constitution on Elections, which is the constitutional body charged with the enforcement
to the people at a plebiscite for its ratification or rejection m accordance and administration of all laws relative to the conduct of elections, took no
with Articles V, X and XV of the 1935 Constitution and the provisions of part at all, either by way of supervision or in the assessment of the results.
the Revised Election Code in force at the time of such plebiscite. Same; Matter of whether or not the Constitution has become effective
because of popular acquiescence beyond the domain of judicial review.—
Makalintal and Castro, JJ.:
Under a regime of martial law, with the free expression of opinions through
the usual media vehicles restricted, we have no means of knowing, to the
Constitutional law; Inquiry as to whether or not the act of the Citizens
point of judicial certainty, whether the people have accepted the
Assemblies as certified and proclaimed by the President was an act of
Constitution. In any event, we do not find the issue decisive insofar as our
ratification lies within the power of judicial review.—Such a finding [a
vote in these cases is concerned. To interpret the Constitution — that is
finding that the ratification of the draft Constitution by the Citizens
judicial. That the Constitution should be deemed in effect because of
Assemblies, as certified by the President m Proclamation No. 1102, was not
popular acquiescence — that is political, and therefore beyond the domain
in accordance with the constitutional and statutory procedure laid down for
of judicial review.
the purpose] is on a matter which is essentially justiciable, that is, within the
power of this Court to inquire into. It imports nothing more than a simple Barredo, J.:
reading and application of the pertinent provisions of the 1935 Constitution
of the Election Code and of other related laws and otiicial acts. No question Constitutional law; Validity of a law presumed until otherwise declared
of wisdom or of policy is involved. unconstitutional.—With full consciousness of my limitations but compelled
Same; Procedure of ratification followed not in accordance with the by my sense of duty and propriety to straighten out this grave issue (on
1935 Constitution and the related statutes; Reasons.—There should be no whether the Court is acting as an 11-man Court under the 1935 Constitution
serious dispute as to the fact that the manner in which or as a 15-man Court
39 40
the voting was conducted in the Citizens Assemblies, assuming that such under the 1973 Constitution) touching on the capacity in which the Court is
voting was held, was not within the intendment of Article XV, Section 1, of acting in these cases, I hold that we have no alternative but to adopt in the
the 1935 Constitution nor in accordance with the Election Code of 1971. present situation the orthodox rule that when the validity of an act or law is
The referendum can by no means be considered as the plebiscite challenged as being repugnant to a constitutional mandate, the same is
contemplated in Section 2 of said Code and in Article XVII, lection 16, of allowed to have effect until the Supreme Court rules that it is
the draft Constitution itself, or as the election intended by Congress when it unconstitutional. Stated differently, We have to proceed on the assumption
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that the new Constitution is in force and that We are acting in these present having in mind facts of general knowledge which I have taken judicial
cases as the 15-man Supreme Court provided for therein. Contrary to notice of, I am in no position to deny that the result of the referendum was
counsel’s contention, there is here no prejudgment for or against any of the as the President had stated. I can believe that the figures referred to in the
two constitutions. The truth of the matter is simply that in the normal and proclamation may not be accurate, but I cannot say in conscience that all of
logical conduct of governmental activities, it is neither practical nor wise to them are manufactured or prefabricated, simply because I saw with my own
defer the course of any action until after the courts have ascertained their eyes that people did actually gather and listen to discussions, if brief and
legality, not only because if that were to be the rule, the functioning of inadequate for those who are not abreast of current events and general
government would correspondingly be undesirably hesitative and occurrences, and that they did vote.. . . I am not prepared to discredit
cumbersome, but more importantly, because the courts must at the first entirely the declaration that there was voting and that the majority of the
instance accord due respect to the acts of the other departments, as votes were in favor of the New Constitution. If in fact there were
otherwise, the smooth running of the government would have to depend substantially less than 14 million votes of approval, the real figure, in my
entirely on the unanimity of opinions among all its departments, which is estimate, could still be significant enough and legally sufficient to serve as
hardly possible, unless it is assumed that only the judges have the exclusive basis for a valid ratification.
prerogative of making and enforcing the law, aside from being its sole Same; Referendum through Citizens Assemblies not mere consultative.
interpreter, which is contrary to all norms of juridical and political thinking. —It is contended, however, that the understanding was that the referendum
To my knowledge, there is yet no country in the world that has recognized among the Citizens Assemblies was to be in the nature of a loose
judicial supremacy as its basic governmental principle, no matter how consultation and not an outright submission for purposes of ratification. I
desirable we might believe the idea to be. ... It is undeniable that the whole can see that at the, outset, when the first set of questions was released, such
government, including the provincial, municipal and barrio units and not may have been the idea. It must not be lost sight of, however, that if the
excluding the lower courts up to the Court of Appeals, is operating under newspaper reports are to be believed, and I say this only because petitioners
the 1973 Constitution. Almost daily, presidential orders and decrees of the would consider the newspapers as the official gazettes of the administration,
most legislative character affecting practically every aspect of governmental the last set of six questions were included precisely because the reaction to
and private activity as well as the relations between the government and the the idea of mere consultation was that the people wanted greater direct
citizenry are pouring put from Malacafiang under the authority of said participation, thru the Citizens Assemblies, in decision-making regarding
Constitution. ... Moreover, what makes the premise of presumptive validity matters of vital national interest. Thus, looking at things more
preferable and] imperative, is that We are dealing here with a whole understandingly and realistically, the two questions emphasized by counsel,
Constitution that radically modifies or alters not only the form of our namely, (1) Do you approve of the New Constitution? and (2) Do you want
government from presidential to parliamentary but also other a plebiscite to be called to ratify the new Constitution? should be considered
constitutionally based institutions vitally affecting all levels of society. no longer as loose consultations but as direct inquiries about the desire of
Same; When Article XV of the 1935 Constitution not complied with.— the voters regarding the matters mentioned.
In my separate opinion in the Plebiscite Cases, I already made the Same; Results of referendum valid.—Let us not forget that the times are
observation that in view of the lack of solemnity and regularity in the voting abnormal, and prolonged dialogue and exchange of ideas are not generally
as well as in the manner of reporting and canvassing conducted in possible, nor practical, considering the need for faster
connection with the referendum, I cannot say that Article XV of the old
Constitution has been complied with, 42
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VOL. 50, MARCH 31, 1973 41 Javellana vs. The Executive Secretary

decisions and more resolute action. After all voting on a whole new
constitution is different from voting on one, two or three specific proposed
albeit I held that nonetheless, the Constitution of 1973 is already in force. amendments, the former calls for nothing more than a collective view of all
Same; Result of referendum is as the President stated.—In my opinion the provisions of the whole charter, for necessarily, one has to take the good
in those cases, the most important point I took into account was that in the together with the bad in it. It is rare for anyone to reject a constitution only
face* of the Presidential certification through Proclamation 1102 itself that because of a few specific objectional features, no matter how substantial,
the New Constitution has been approved by a majority of the people and considering the ever present possibility that after all it may be cured by
11/326 12
subsequent amendment. Accordingly, there Was need to indicate to the circumstances of the cases now at bar, whicn are entirely different from
people the paths open to them in their quest for the betterment of their those in the backdrop of the Tolentino rulings I have referred to:
conditions, and as long as it is not shown that those who did not agree to the 1. Consider that in the present case what is involved is not just an
suggestions in the “comments” were actually compelled to vote against their amendment of a particular provision of an existing Constitution; here, it is,
will, I am not convinced that the existence of said “comments” should make as I have discussed earlier above, an entirely new Constitution that is being
any appreciable difference in the Court’s appraisal of the result of the proposed. This important circumstance makes a great deal of difference.
referendum.
2. When an entirely new constitution is proposed to supersede the
Same; Referendum not in strict compliance with 1935 Constitution.— existing one, we cannot but take into consideration the forces and the
At this juncture, I think it is fit to make it clear that I am not trying to show circumstances dictating the replacement. From the very nature of things, the
that the result of the referendum may be considered as sufficient basis for proposal to ordain a new constitution must be viewed as the most eloquent
declaring that the New Constitution has been ratified in accordance with the expression of a people’s resolute determination to bring about a massive
amending clause of the 1935 Constitution. I reiterate that in point of law, I change of the existing order, a meaningful transformation of the old society
find neither strict nor substantial compliance. The foregoing discussion is and a responsive reformation of the contemporary institutions and
only to counter, if I may, certain impressions regarding the general principles.
conditions obtaining during and in relation to the referendum which could
have in one way or another affected the exercise of the freedom of choice 3. The ostensible reaction of the component elements, both collective
and the use of discretion by the members of the Citizens Assemblies, to the and individual, of the Congress of the Philippines. Neither the Senate nor
end that as far as the same conditions may be relevant in my subsequent the House of Representatives has been reported to have even made any
discussions of the acceptance by the people of the New Constitution they appreciable effort or attempt to convene as they were supposed to do under
may also be considered. the 1935 Constitution on January 22, 1973 for the regular session.
Same; 1973 Constitution already adopted by the people.—It is my 4. Viewed from the strictly legal angle and in the light of judicial
sincere conviction that the Constitution of 1973 has been accepted or methods of ascertainment, I cannot agree with the Solicitor General that in
adopted by the people. And on this premise, my considered opinion is that the legal sense, there has been at least substantial compliance with Article
the Court may no longer decide these cases on the basis of purely legal XV of the 1935 Constitution, but what I can see is that in political sense, the
considerations. Factors which are non-legal but nevertheless ponderous and answers to the referendum questions were not given by the people as legal
compelling cannot be ignored, for their relevancy is inherent in the issue conclusions. I take it that when they answered that by their significant
itself to be resolved. approval of the New Constitution, they do not consider it necessary to hold
a plebiscite, they could not have had in mind any intent to do what was
Same; Ruling in Tolentino vs. Comelec (U SCRA 702) distinguished constitutionally improper. Basically accustomed to proceed along
from case at bar.—It is true that in the opinion I had the privilege of penning constitutional channels, they must have acted in the honest conviction that
for the Court in Tolentino vs. Comelec (41 SCRA 702), I made strong and what was being done was in conformity with prevailing constitutional
unequivocal pronouncements to the effect that any amendment to the standards. We are not to assume that the sovereign people were indulging in
Constitution of 1935, to be valid, must appear to have been made in strict a futile exercise of their supreme
conformity with the
44
43

VOL. 50, MARCH 31, 1973 43
political right to choose the fundamental charter by which their lives, their
requirements of Article XV thereof. What is more, that decision asserted liberties and their fortunes shall be safeguarded
judicial competence to inquire into the matter of compliance or
noncompliance as a justiciable matter. I still believe in the correctness of 5. Finally, if any doubt should still linger as to the legitimacy of the
those views and I would even add that I sincerely feel that it reflects the New Constitution on legal grounds, the same should be dispelled by
spirit of the said constitutional provision. Without trying to strain any point, viewing the situation in the manner suggested by Counsel Tolentino and by
however, I submit the following considerations in the context of the peculiar the writer of this opinion in his separate opinion, oftweferred to above, in
the Plebiscite Cases — that is, as an extraconstitutional exercise by the
13/326 14
people, under the leadership of President Marcos, of their inalienable right Same; Political question explained.—For a political question is one
to change their fundamental charter by any means they may deem entrusted to the people for judgment in their sovereign capacity (Tanada vs.
appropriate, the moment they are convinced that the existing one is no Cuenco, G.R. No. L-10520, Feb. 28, 1967; 100 Phil. 1101), or to a co-equal
longer responsive to their fundamental, political and social needs nor and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192;
conducive to the timely attainment of their national destiny. This is not only Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35;
the teaching of the American Declaration of Independence but is indeed, a Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a
truth that is self-evident. political question when there would be “the impossibility of undertaking
independent resolutions without expressing a lack of respect due to
Makasiar, J.:
coordinate branches of government,” or when there is “the potentiality of
embarassment from multifarious pronouncements by various departments
Constitutional law; Issue as to the validity of Proclamation No. 1102
on one question.”
political and not justiciable; Reasons.—Assuming, without conceding, that
the procedure for ratification prescribed in Article XV of the 1935 Zaldivar, J., dissenting and concurring:
Constitution was not complied with, the validity of Presidential
Proclamation No. 1102 is a political, not a justiciable, issue; for it is Constitutional law; Meaning of political question.—A political
inseparably or inextricably linked with and strikes at, because it is decisive question relates to “those questions which under the Constitution are to be
of, the validity of the ratification and adoption of, as well as acquiescence of decided by the people in their sovereign capacity or in regard to which full
the people in, the 1973 Constitution and the legitimacy of the government discretionary authority has been delegated to the legislative, or to the
organized and operating thereunder. And being political, it is beyond the executive, branch of the government.
ambit of judicial inquiry, tested by the definition of a political question
enunciated in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051). Same; The courts have the power to determine whether the acts of the
Executive are authorized by the Constitution and the laws.—It is a settled
Same; Acceptance by the people of the 1973 Constitution cures any doctrine that every officer under a constitutional government must act
infirmity in its submission; Reason.—The legality of the submission is no according to law and subject to its restrictions, and every departure
longer relevant; because the ratification, adoption and/or acquiescence by therefrom, or disregard thereof, must subject him to the restraining and
the people cures any infirmity in its submission or any other irregularities controlling power of the people, acting through the agency of the judiciary.
therein which are deemed mandatory before submission as they are It must be remembered that the people act through the courts, as well as
considered merely directory after such ratification or adoption or through the executive or the legislature. One department is just as
acquiescence by the people. representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law
Esguerra, J.:
places upon all official actions.
Constitutional law; Issue as to whether or not Constitution of Same; Courts have power to determine validity of means adopted to
November 30, 1972 ratified in accordance with the amending process change the Constitution.—It is in the power of this Court, as the ultimate
prescribed by the 1935 Constitution and other related statutes highly interpreter of the Constitution, to determine the
45 46
political and not justiciable.—Certainly, the invalidation of Proclamation validity of the proposal, the submission, and the ratification of any change in
No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would the Constitution. Ratification or non-ratification of a constitutional
smack of plain political meddling which is described by the United States amendment is a vital element in the procedure to amend the constitution,
Supreme Court as “entering a political thicket” in Colgrove vs. Green, 328 and I believe that the Court can inquire into, and decide on, the question
U.S. p. 549. At this juncture it would be the part of wisdom for this Court to whether or not an amendment to the Constitution, as in the present cases,
adopt the proper attitude towards political upheavals and realize that the has been ratified in accordance with the requirements prescribed in the
question before Us is political and not fit for judicial determination. Constitution that was amended.
15/326 16
Same; “Election” contemplated in Article XV of the Constitution is an Same; The fact that a majority voted for the amendment of the
election conducted under the election law.—The election contemplated in Constitution, unless the vote was taken as provided by the Constitution, is
said constitutional provision is an election held in accordance with the not sufficient to make a change in that instrument.—In the cases now before
provisions of the election law, where only the qualified and registered voters this Court, the fact that the voting in the citizens assemblies (barangays) is
of the country would cast their votes, where official ballots prepared for the not the election that is provided for in the 1935 Constitution for the
purpose are used, where the voters would prepare their ballots in secret ratification of the amendment to the Constitution, the affirmative votes cast
inside the voting booths in the polling places established in the different in those assemblies cannot be made the basis for declaring the ratification of
election precincts throughout the country, where the election is conducted the proposed 1972 Constitution, in spite of the fact that it was reported that
by election inspectors duly appointed in accordance with the election law, 14,976,561 members of the citizens assemblies voted for the rejection,
where the votes are canvassed and reported in a manner provided for in the because the votes thus obtained were not in accordance with the provisions
election law. It was this kind of election that was held on May 14, 1935, of Section 1 of Article XV of the 1935 Constitution of the Philippines. The
when the Constitution of 1935 was ratified; on April 30, 1937, when the rule of law must be upheld.
amendment to the Constitution providing for Women’s Suffrage was Same; Voting in the barangays was not freely exercised because of the
ratified; on June 18, 1940, when the 1940 Amendments to the Constitution existence of martial law.—One of the valid grounds against the holding of
were ratified; on March 11, 1947 when the Parity Amendment to the the plebiscite on January 15, 1973, as provided in Presidential Decree No.
Constitution was ratified; and on November 14, 1967 when the amendments 73, is that there is no freedom on the part of the people to exercise their right
to the Constitution to increase the number of Members of the House of of choice, because of the existence of martial law in our country. The same
Representatives and to allow the Members of Congress to run in the ground holds true as regards the voting of the barangays on January 10 to
elections for Delegates to the Constitutional Convention of 1971 were 15, 1973. More so, because by General Order No. 20, issued on January 7,
rejected. 1973, the President of the Philippines ordered ‘that the provisions of Section
Same; Votes cast in the barangays not the votes contemplated in 3 of Presidential Decree No. 73 in so far as they allow free public discussion
Section 1 of Article XVof the 1935 Constitution.—It is my view that the of the proposed constitution, as well as my order of December 17, 1972
President of the Philippines cannot by decree order the ratification of the temporarily suspending the effects of Proclamation No. 1081 for the
proposed 1972 Constitution thru a voting in the barangays and make said purpose of free and open debate on the proposed constitution, be suspended
result the basis for proclaiming the ratification of the proposed Constitution. in the meantime.'
It is very clear, to me, that Proclamation 1102 was issued in complete
Same; Meaning of “people” in the Constitution.—It is not disputed
disregard or in violation, of the provisions of Section 1 of Article XV of the
that in a democracy sovereignty resides in the people. But the term “people”
1935 Constitution.
must be understood in its constitutional meaning, and they are “those
Same; Same; Manner of voting by the barangays subject to judicial persons who are permitted by the Constitution to exercise the elective
notice.—But what is more noteworthy is the fact that the voting in the franchise.”
barangays, except in very few instances, was done by the raising of hands Same; The term “election” in Article XV of the Constitution should be
by the persons indiscriminately gathered to participate in the voting, where taken in its historical perspective.—It can safely be said that when the
even children below 15 years of age were included. This is a matter of framers of the 1935 Constitution used the word “election” in Section 1 of
common observation, or of common knowledge, which the Court may take Article XV of the 1935 Constitution they had no other idea in mind except
judicial notice of. To the elections that were periodically
47
48

consider the votes in the barangays as expressive of the popular will and use held in the Philippines for the choice of public officials prior to the drafting
them as the basis in declaring whether a Constitution is ratified or rejected is of the 1935 Constitution, and also the “election” mentioned in the
to resort to a voting by demonstrations, which would mean the rule of the Independence Act. It is but logical to expect that the framers of the 1935
crowd, which is only one degree higher than the rule by the mob.
17/326 18
Constitution would provide a mode of ratifying an. amendment to that Same; Congress may still call a plebiscite.—It being my view that the
Constitution itself. 1935 Constitution is still in force, I believe Congress may still convene and
Same; It cannot be said that the people have accepted the 1978 pass a law calling for an election at which the Constitution proposed by the
Constitution.—What appears to me, however, is that practically it is only the 1971 Constitutional Convention will be submitted to the people for their
officials and employees under the executive department of the Government ratification or rejection.
who have been performing their duties apparently in observance of the
provisions of the new Constitution.... True it is, that 92 members of the Fernando, J., dissenting:
House of Representatives and 15 members of the Senate, of the Congress of
the Philippines had expressed their option to serve in the interim National Constitutional law; When power of judicial review should be exercised.
Assembly that is provided for in Section 2 of Article XVII of the proposed —In the United States as well as here, the exercise of the power of judicial
Constitution. It must be noted, however, that of the 15 senators who review is conditioned on the necessity that the decision of a case or
expressed their option to serve in the interim National Assembly only one of controversy before it so requires. To repeat, the Justices of the highest
them took his oath of office; and of the 92 members of the House of tribunal are not, as Justice Frankfurter made clear, “architects of policy.
Representatives, only 22 took their oath of office. This is an indication that They cannot nullify the policy of others, they are incapable of fashioning
only a small portion of the members of Congress had manifested their their own solutions for social problems.” Nonetheless, as was stressed by
acceptance of the new Constitution. Professors Black, and Murphy, a Supreme Court by the conclusion it
reaches and the decision it renders does not merely check the coordinate
Same; Acceptance of Constitution is manifested by oath of office.—It is
branches, but also by its approval stamps with legitimacy the action taken.
in the taking of the oath of office where the affiant says that he swears to
Thus, in affirming constitutional supremacy, the political departments could
“support and defend the Constitution” that the acceptance of the
seek the aid of the judiciary.
Constitution is made manifest. I agree with counsel for petitioners in L-
36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that Same; Same; Whether there has been deference to the provisions of the
the members of Congress who opted to serve in the interim National Constitution is a judicial question.—With the 1935 Constitution containing,
Assembly did so only ex abundante cautela, or by way of a precaution, or as above noted, an explicit article on the subject of amendments, it would
making sure, that in the event the new Constitution becomes definitely follow that the presumption to be indulged in is that the question of whether
effective and the interim National Assembly is convened they can there has been deference to its terms is for this Court to pass upon. What is
participate in legislative work in their capacity as duly elected more, the Gonzales, Tolentino and Planas cases speak uneauivocally to that
representatives of the people, which otherwise they could not do if they did effect. Nor is it a valid objection to this conclusion that what was involved
not manifest their option to serve, and that option had to be made within 30 in those cases was the legality of the submission and not ratification, for
days from January 17, 1973, the date when Proclamation No. 1102 was from the very language of the controlling article, the two vital steps are
issued. proposal and ratification, which as pointed out in Dillon v. Gloss (256 US
368) “cannot be treated as unrelated acts, but as succeeding steps in a single
Same; Presidential declaration that government is not a revolutionary
endeavor.” Once an aspect thereof is viewed as judicial, there would be no
government subject to judicial notice.—The Court may take judicial notice
justitification for considering the rest as devoid of that character.
of the fact that the President of the Philippines has reassured the nation that
the government of our Republic since the declaration of martial law is not a Same; The Philippines has a tradition of judicial activism.—It cannot
revolutionary government, and that he has been acting all the way in be denied that from the well-nigh four decades of constitutionalism in the
consonance with his powers under the Constitution. The people of this Philippines, even discounting an almost similar period of time dating from
Republic the inception of American
49 50
has reason to be happy because, according to the President, we still have a sovereignty, there has sprung a tradition of what has been aptly termed as
constitutional government. judicial activism. Such an approach could be traced to the valedictory
address before the 1935 Constitutional Convention of Claro M. Recto.
19/326 20
Same; Nature of judicial function.—It suffices to state that what elicits upon to give meaning and perspective to what could be considered words of
approval on the part of our people of a judiciary ever alert to inquire into vague generality, pregnant with uncertainty, still whatever obscurity it
alleged breaches of the fundamental law is the realization that to do so is possesses is illumined when the light of the previous legislation is thrown
merely to do what is expected of it and that thereby there is no invasion of on it. In the first Commonwealth Act, submitting to the Filipino people for
spheres appropriately belonging to the political branches. For it needs to be approval or disapproval certain amendments to the original ordinance
kept in mind always that it can act only when there is a suit with proper appended to the 1935 Constitution, it was made clear that the election for
parties before it, wherein rights appropriate for judicial enforcement are such purpose was to “be conducted in conformity with the provisions of the
sought to be vindicated. Then, too, it does not approach constitutional Election Code insofar as the same may be applicable.” Then came the
questions with dogmatism or apodictic certainty nor view them from the statute, calling for the plebiscite on the three 1940 amendments providing
shining cliffs of perfection. This is not to say that it is satisfied with an for a bicameral Congress or a Senate and a House of Representatives to take
empiricism untroubled by the search for jural consistency and rational the place of a unicameral National Assembly, reducing the term of the
coherence. A balance has to be struck. So juridical realism requires. Once President to four years but allowing this re-election with the limitation that
allowance is made that for all its care and circumspection this Court is he cannot serve for more than eight consecutive years, and creating an
manned by human beings fettered by fallibility, but nonetheless earnestly independent Commission on Elections. Again it was expressly provided that
and sincerely striving to do right, the public acceptance of its vigorous the election “shall be conducted in conformity with the provisions of the
pursuit of the task of assuring that the Constitution be obeyed is easy to Election Code insofar as the same may be applicable.” The approval of the
understand. It has not in the past shirked its responsibility to ascertain present parity amendment was by virtue of a Republic Act which
whether there has been compliance with and fidelity to the constitutional specifically made applicable the then Election Code. There is a similar
requirements. It should not start now. It should continue to exercise its provision in the legislation which in contemplation of the 1971
jurisdiction, even in the face of a plausible but not sufficiently persuasive Constitutional Convention provided for increase of the membership of the
insistence that the matter before it is political. House of Representatives, to a maximum of one hundred eighty, and the
eligibility of senators and representatives to become members of such
Same; Requirements of the Constitution for its amendment was not constitutional convention without forfeiting their seats. Thus, the consistent
complied with.—There is, of course, the view not offensive to reason that a course of interpretation followed by the legislative branch is most
sense of the realities should temper the rigidity of devotion to the strict letter persuasive, if not controlling. The restraint thus imposed would set limits to
of the text to allow deference to its spirit to control. With due recognition of the Presidential action taken, even on the assumption that either as an agent
its force in constitutional litigation, if my reading of the events and the of the Constitutional Convention or under his martial law prerogatives, he
process that led to such proclamation, so clearly set forth in the opinion of was not devoid of power to specify the mode of ratification. On two vital
the Chief Justice, is no inacc urate, then it cannot be confidently asserted points, who can vote and how they register their will, Article XV had been
that there was such compliance. It would be to rely on conjectural given a definitive construction.
assumptions that did founder on the rock of the undisputed facts. Any other
conclurion would, for me, require an interpretation that borders on the s Same; Petitions in the case at bar should not be dismissed.—There is
rained. So it has to be if one does not lose sight of how the article on for me an obstacle to the petitions being dismissed for such ascertainment of
amendments is phrased. A word, to paraphrase Justice Holmes may not be popular will did take place during a period of martial law. It would have
crystal, transparent and unchanged, but it is not, to borrow from Learned been different had there been that freedom of debate with the least
Hand, that eminent jurist, a rubber band either. It would be unwarranted in interference, thus allowing a free market of ideas. If it were thus, it could be
my view to assert that the requirements of the 1935 Constitution have been truly said that there was no barrier to liberty of choice. It would a clear-cut
met. decision either way. One could be certain as to the fact of the acceptance of
the new or of adherence to the old. This is not to deny
51
52
VOL. 50, MARCH 31, 1973 51


that votes are cast by individuals with their personal concerns uppermost in
Same; Same.—Even if the assumption be indulged in that Article XV mind, worried about their immediate needs and captive to their existing
is not phrased in terms too clear to be misread, so that this Court is called
21/326 22
moods. That is inherent in any human institution, much more so in a Constitutional law; Issue as to the validity of Presidential
democratic polity. Nor is it open to any valid objection because in the final Proclamation No. 1102 presents a justiciable question and constitutes a
analysis the state exists for the individuals who in their collectivity compose proper subject of judicial review; Reasons.—As was to be restated by
it. Whatever be their views, it is entitled to respect. It is difficult for me, Justice Jose P. Laurel a century and a third later in the 1936 landmark case
however, at this stage to feel secure in the conviction that they did utilize the of Angara vs. Electoral Commission, “(T)he Constitution sets forth in no
occasion afforded to give expression to what was really in their hearts. This uncertain language the restrictions and limitations upon governmental
is not to imply that such doubt could not be dispelled by evidence to the powers and agencies. If these restrictions and limitations are transcended it
contrary. If the petitions be dismissed, however, then such opportunity is would be inconceivable if the Constitution had not provided for a
forever lost. mechanism by which to direct the course of government along constitutional
Same; A decision in favor of the petitioners need not be immediately channels, for then the distribution of powers would be mere verbiage, the
executory.—It might be asked though, suppose the petitioners should bill of rights mere expressions of sentiment, and the principles of good
prevail? What then? Even so, the decision of this Court need not be government mere political apothegms. Certainly, the limitations and
executory right away. Such a disposition of a case before this Court is not restrictions embodied in our Constitution are real as they should be in any
novel. That was how it was done in the Emergency Powers Act controversy. living Constitution.”
Once compliance is had with the requirements of Article XV of the 1935 Same; Same; Same.—Justice Laurel pointed out that in contrast to the
Constitution, to assure that the coming force of the revised Charter is free United States Constitution, the Philippine Constitution as “a definition of the
from any taint of infirmity, then all doubts are set at rest. powers of government” placed upon the judiciary the great burden of
Same; How the case at bar should be viewed.—For some, to so view “determining the nature, scope and extent of such powers” and stressed that
the question before us is to be caught in a web of unreality, to cherish “when the judiciary mediates to allocate constitutional boundaries, it does
illusions that cannot stand the test of actuality. What is more, it may give the not assert any superiority over the other departments ... but only asserts the
impression of reliance on what may, for the practical man of affairs, be no solemn and sacred obligation entrusted to it by the Constitution to determine
more than gossamer distinctions and sterile refinements unrelated to events. conflicting claims of authority under the Constitution and to establish for the
That may be so, but I find it impossible to transcend what for me are the parties in an actual controversy the rights which the instrument secures and
implications of traditional constitutionalism. This is not to assert that an guarantees to them.”
occupant of the bench is bound to apply with undeviating rigidity doctrines
Same; No valid ratification of Constitution where ratification not in
which may have served their day. He could at times even look upon them as
accordance with mandatory requirements of Article XV of the 1935
mere scribblings in the sands to be washed away by the advancing tides of
Constitution.—Since it appears on the face of Proclamation 1102 that the
the present. The introduction of novel concepts may be Cirried only so far
mandatory requirements of the constitutional articles have not been
though. As Cardozo put the matter: “The judge, even when he is free, is still
complied with and that no election or plebiscite for ratification as therein
not wholly free. He is not to innovate at pleasure. He is not a knight-errant,
provided as well as in section 16 of Article XVII of the proposed
roaming at will in pursuit of his own ideal of beauty or of goodness. He is to
Constitution itself has been called or held, there cannot be said to have been
draw his inspiration from consecrated principles. He is not to yield to spasr
a valid ratification.
iodic sentiment, to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy, disciplined by Same; Same; Necessity of strict adherence to constitutional
system, and subordinated to ‘the primordial necessity of order in the social requirements; Reasons for.— Sound constitutional policy and the sheer
life.’ Wide enough in all conscience is the field of discretion that remains.” necessity of adequate safeguards as ordained by the Constitution and
implementing statutes to ascertain and record the will of the people in free,
53 orderly and honest elections supervised by
54
VOL. 50, MARCH 31, 1973 53


Teehankee, J., dissenting: the Comelec make it imperative that there be strict adherence to the
constitutional requirements laid down for the process of amending in toto or
23/326 24
in part the supreme law of the land. people for ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
ORIGINAL PETITIONS in the Supreme Court. Mandamus and appropriating funds therefor,” as well as setting the plebiscite for said
prohibition. ratification or rejection of the Proposed Constitution on January 15, 1973.
The facts are stated in the resolution of the Court. “Soon after, or on December 7, 1972, Charito Planas filed, with this
Ramon A. Gonzales for petitioner Josue Javellana. Court, Case G.R. No. L-35925, against the Commission on Elections, the
Lorenzo M. Tañada & Associates for petitioners Vidal Tan, et al. Treasurer of the Philippines and the Auditor General, to enjoin said
Tañada, Salonga, Ordonez, Rodrigo, Sanidad, Roxas. Gonzales ‘respondents or their agents from implementing Presidential Decree No. 73,
and Arroyo for petitioners Gerardo Roxas, et al. in any manner, until further orders of the Court,’ upon the grounds, inter
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie alia, that said Presidential Decree ‘has no force and effect as law because
Monteclaro. the calling x x x of such plebiscite, the setting of guidelines for the conduct
Raul M. Gonzales & Associates for petitioners Napoleon V. of the same, the prescription of the ballots to be used and the question to be
Dilag, et al. answered by the voters, and the appropriation of public funds for the
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy. purpose, are, by the Constitution, lodged exclusively in Congress x x x,’ and
Solicitor General Estelito P. Mendoza, Solicitor Vicente V. ‘there is no proper submission to the people of said Proposed Constitution
Mendoza and Solicitor Reynato S. Puno for other respondents. set for January 15, 1973, there being no freedom of speech, press and
assembly, and there being no sufficient time to inform the people of the
contents thereof.’
RESOLUTION “Substantially identical actions were filed, on December 8, 1972, by
Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L-
CONCEPCION, C.J.: 35929) on December 11, 1972, by Gerardo Roxas, et al., against the
The above-entitled five (5) cases are a sequel of cases G.R. Nos. Commission on Elections, the Director of Printing, the National Treasurer
L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro
L-35961, L-35965 and L-35979, decided on January 22, 1973, to against the Commission on Elections and the Treasurer of the
which We will hereafter refer collectively as the plebiscite cases.
Background of the Plebiscite Cases. 56
The factual setting thereof is set forth in the decision therein
rendered, from which We quote: 56 SUPREME COURT REPORTS ANNOTATED
55 Javellana vs. The Executive Secretary
Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against
VOL. 50, MARCH 31, 1973 55
the National Treasurer and the Commission on Elections (Case G.R. No. L-
Javellana vs. The Executive Secretary 35942); on December 12, 1972, by Vidal Tan, et al., against the Commission
on Elections, the Treasurer of the Philippines, the Auditor General and the
Director of Printing (Case G.R. No. L-35948) and by Jose W. Diokno and
Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-
“On March 16, 1967, Congress of the Philippines passed Resolution No. 35953); on December 14, 1972, by Jacinto Jimenez against the Commission
2, which was amended by Resolution No. 4 of said body, adopted on June on Elections, the Auditor General, the Treasurer of the Philippines and the
17, 1969, calling a Convention to propose amendments to the Constitution Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul
of the Philippines. Said Resolution No. 2, as amended, was implemented by M. Gonzales against the Commission on Elections, the Budget
Republic Act No. 6132, approved on August 24, 1970, pursuant to the Commissioner, the National Treasurer and the Auditor General (Case G.R.
provisions of which the election of delegates to said Convention was held No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against
on November 10, 1970, and the 1971 Constitutional Convention began to the Commission on Elections, the Secretary of Education, the National
perform its functions on June 1, 1971. While the Convention was in session Treasurer and the Auditor General (Case G.R. No. L-35979).
on September 21, 1972, the President issued Proclamation No. 1081 placing “In all these cases, except the last (G.R. No. L-35979), the respondents
the entire Philippines under Martial Law. On November 29, 1972, the were required to file their answers ‘not later than 12:00 (o’clock) noon of
Convention approved its Proposed Constitution of the Republic of the Saturday, December 16, 1972.’ Said cases were, also, set for hearing and
Philippines. The next day, November 30, 1972, the President of the partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
Philippines issued Presidential Decree No. 73, “submitting to the Filipino
25/326 26
continued on December 19, 1972. By agreement of the parties, the “[2] Reforms instituted under Martial Law;
aforementioned last case — G.R. No. L-35979 — was, also, heard, jointly “[3] The holding of a plebiscite on the proposed new Constitution
with the others, on December 19, 1972. At the conclusion of the hearing, on and when (the tentative new dates given following the postponement
that date, the parties in all of the aforementioned cases were given a short of the plebiscite from the original date of January 15 are February 19
period of time within which ‘to submit their notes on the points they desire and March 5);
to stress.’ Said notes were filed on different dates, between December 21, “[4] The opening of the regular session slated on January 22 in
1972, and January 4, 1973. accordance with the existing Constitution despite Martial Law.”
“Meanwhile, or on December 17, 1972, the President had issued an order [Bulletin Today, January 3, 1973.]
temporarily suspending the effects of Proclamation No. 1081, for the
58
purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the plebiscite
for the ratification or rejection of the Proposed Constitution. No formal 58 SUPREME COURT REPORTS ANNOTATED
action to this effect was taken until January 7, 1973, when General Order Javellana vs. The Executive Secretary
No. 20 was issued, directing ‘that the plebiscite scheduled to be held on
January 15, 1978, be postponed until further notice.’ Said General Order
No. 20, moreover, ‘suspended in the meantime’ the ‘order of December 17, ‘8. That it was later reported that the following are to be the forms of the
1972, temporarily suspending the effects of Proclamation questions to be asked to the Citizens Assemblies: —
“[1] Do you approve of the New Society?
57
“[2] Do you approve of the reform measures under martial law?
“[3] Do you think that Congress should meet again in regular
VOL. 50, MARCH 31, 1973 57 session?
Javellana vs. The Executive Secretary “[4] How soon would you like the plebiscite on the new
Constitution to be held? [Bulletin Today, January 5, 1973].
No. 1081 for purposes of free and open debate on the proposed ‘9. That the voting by the so-called Citizens Assemblies was announced
Constitution.’ to take place during the period from January 10 to January 15, 1973;
“In view of these events relative to the postponement of the ‘10. That on January 10, 1973, it was reported that on more question
aforementioned plebiscite, the Court deemed it fit to refrain, for the time would be added to the four (4) question previously announced, and that the
being, from deciding the aforementioned cases, for neither the date nor the forms of the question would be as follows: —
conditions under which said plebiscite would be held were known or “[1] Do you like the New Society?
announced officially. Then, again, Congress was, pursuant to the 1935 “[2] Do you like the reforms under martial law?
Constitution, scheduled to meet in regular session on January 22, 1973, and “[3] Do you like Congress again to hold sessions?
since the main objection to Presidential Decree No. 73 was that the “[4] Do you like the plebiscite to be held later?
President does not have the legislative authority to call a plebiscite and “[5] Do you like the way President Marcos running the affairs of
appropriate funds therefor, which Congress unquestionably could do, the government? [Bulletin Today, January 10, 1973; emphasis an
particularly in view of the formal postponement of the plebiscite by the additional question.]
President — reportedly after consultation with, among others, the leaders of ‘11. That on January 11, 1973, it was reported that six (6) more questions
Congress and the Commission on Elections — the Court deemed it more would be submitted to the so-called Citizens Assemblies: —
imperative to defer its final action on these cases. “[1] Do you approve of the citizens assemblies as the base of
“In the afternoon of January 12, 1973, the petitioners in Case G.R. popular government to decide issues of national interests?
No. L-35948 filed an ‘urgent motion,’ praying that said case be decided ‘as
59
soon as possible, preferably not later than January 15, 1973.’ It was alleged
in said motion, inter alia:
‘6. That the President subsequently announced the issuance of VOL. 50, MARCH 31, 1973 59
Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to Javellana vs. The Executive Secretary
be consulted on certain public questions [Bulletin Today, January 1, 1973];
‘7. That thereafter it was later announced that “the Assemblies will be
asked if they favor or oppose — “[2] Do you approve of the new Constitution?
“[1] The New Society;
27/326 28
“[3] Do you want a plebiscite to be called to ratify the new ‘Attention is respectfully invited to the comments on “Question No.
Constitution? 3,” which reads: —
“[4] Do you want the elections to be held in November, 1973 in “QUESTION No. 3
accordance with the provisions of the 1935 Constitution? The vote of the Citizens Assemblies should be considered the
“[5] If the elections would not be held, when do you want the next plebiscite on the New Constitution.
elections to be called? If the Citizens Assemblies approve of the New Constitution, then the
“[6] Do you want martial law to continue? [Bulletin Today, new Constitution should be deemed ratified.
January 11, 1973; emphasis supplied] This, we are afraid, and therefore allege, is pregnant with ominous
‘12. That according to reports, the returns with respect to the six (6) possibilities.
additional questions quoted above will be on a form similar or identical to ‘14. That, in the meantime, speaking on television and over the radio, on
Annex “A” hereof; January 7, 1973, the President announced that the limited freedom of debate
‘13. That attached to page 1 of Annex “A” is another page, which we on the proposed Constitution was being withdrawn and that the
marked as Annex “A-1,” and which reads: — proclamation of martial law and the orders and decrees issued thereunder
“COMMENTS ON would thenceforth strictly be enforced [Daily Express, January 8, 1973];
QUESTION No. 1
61
In order to broaden the base of citizens’ participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it VOL. 50, MARCH 31, 1973 61
is to be convened at all, it should not be done so until after at least Javellana vs. The Executive Secretary
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3 ‘15. That petitioners have reason to fear, and therefore state, that the
The vote of the Citizens Assemblies should already be considered the question added in the last list of questions to be asked to the Citizens
plebiscite on the New Constitution. Assemblies, namely: —
If the Citizens Assemblies approve of the New Constitution, then the “Do you approve of the New Constitution?” —
new Constitution should be deemed ratified. in relation to the question following it: —
“Do you still want a plebiscite to be called to ratify the new
60
Constitution?” —
would be an attempt to by-pass and short-circuit this Honorable Court
60 SUPREME COURT REPORTS ANNOTATED before which the question of the validity of the plebiscite on the proposed
Javellana vs. The Executive Secretary Constitution is now pending;
‘16. That petitioners have reason to fear, and therefore allege, that if an
affirmative answer to the two questions just referred to will be reported then
QUESTION No. 4 this Honorable Court and the entire nation will be confronted with a fait
We are sick and tired of too frequent elections. We are fed up with accompli which has been attained in a highly unconstitutional and
politics, of so many debates and so much expenses. undemocratic manner;
QUESTION No. 5 ‘17. That the fait accompli would consist in the supposed expression of
Probably a period of at least seven (7) years moratorium on elections the people approving the proposed Constitution;
will be enough for stability to be established in the country, for ‘18. That, if such event would happen, then the case before this
reforms to take root and normalcy to return. Honorable Court could, to all intents and purposes, become moot because,
QUESTION No. 6 petitioners fear, and they therefore allege, that on the basis of such supposed
We want President Marcos to continue with Martial Law. We want expression of the will of the people through the Citizens Assemblies, it
him to exercise his powers with more authority. We want him to be would be announced that the proposed Constitution, with all its defects, both
strong and firm so that he can accomplish all his reform programs congenital and otherwise, has been ratified;
and establish normalcy in the country. If all other measures fail, we ‘19. That, in such a situation the Philippines will be facing a real crisis
want President Marcos to declare a revolutionary government along and there is likelihood of confusion if not chaos, because then, the people
the lines of the new Constitution without the ad interim Assembly.” and their officials will not know which Constitution is in force.
29/326 30
‘20. That the crisis mentioned above can only be avoided if this certifying, announcing and reporting to the President the supposed
Honorable Court will immediately decide and announce its decision on the Citizens’ Assemblies referendum results allegedly obtained when
present petition; they were supposed to have met during the period between January
‘21. That with the withdrawal by the President of the limited freedom of 10 and January 15, 1973, particularly
discussion on the proposed Constitution which was given to the people
63
pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of
respondents to petitioners’
VOL. 50, MARCH 31, 1973 63
62
62 SUPREME COURT REPORTS ANNOTATED on the two questions quoted in paragraph 1 of this Supplemental
Javellana vs. The Executive Secretary Urgent Motion;
‘4. That the proceedings of the so-called Citizens’ Assemblies are illegal,
prayer at the plebiscite be prohibited has now collapsed and that a free null and void particularly insofar as such proceedings are being made the
plebiscite can no longer be held.’ basis of a supposed consensus for the ratification of the proposed
“At about the same time, a similar prayer was made in a ‘manifestation’ Constitution because: —
filed by the petitioners in L-35949, ‘Gerardo Roxas, et al. v. Commission on [a] The elections contemplated in the Constitution, Article XV, at
Elections, et al.,’ and L-35942, ‘Sedfrey A. Ordoñez, et al. v. The National which the proposed constitutional amendments are to be submitted
Treasurer, et al.’ for ratification, are elections at which only qualified and duly
“The next day, January 13, 1973, which was a Saturday, the Court issued registered voters are permitted to vote, whereas, the so called
a resolution requiring the respondents in said three (3) cases to comment on Citizens’ Assemblies were participated in by persons 15 years of age
said ‘urgent motion’ and ‘manifestation,’ ‘not later than Tuesday noon, and older, regardless of qualifications or lack thereof, as prescribed in
January 16, 1973.’ Prior thereto, or on January 15, 1973, shortly before the Election Code;
noon, the petitioners in said Case G.R. No. L-35948 riled a ‘supplemental [b] Elections or plebiscites for the ratification of constitutional
motion for issuance of restraining order and inclusion of additional amendments contemplated in Article XV of the Constitution have
respondents,’ praying — provisions for the secrecy of choice and of vote, which is one of the
‘x x x that a restraining order be issued enjoining and restraining safeguards of freedom of action, but votes in the Citizens’
respondent Commission on Elections, as well as the Department of Assemblies were open and were cast by raising hands;
Local Governments and its head, Secretary Jose Roño; the [c] The Election Code makes ample provisions for free, orderly
Department of Agrarian Reforms and its head, Secretary Conrado and honest elections, and such provisions are a minimum
Estrella; the National Ratification Coordinating Committee and its requirement for elections or plebiscites for the ratification of
Chairman, Guillermo de Vega; their deputies, subordinates and constitutional amendments, but there were no similar provisions to
substitutes, and all other officials and persons who may be assigned guide and regulate proceedings of the so called Citizens’ Assemblies;
such task, from collecting, certifying, and announcing and reporting [d] It is seriously to be doubted that, for lack of material time,
to the President or other officials concerned, the so-called Citizens’ more than a handful of the so called Citizens’ Assemblies have been
Assemblies referendum results allegedly obtained when they were actually formed, because the mechanics of their organization were
supposed to have met during the period comprised between January still being discussed a day or so before the day they were supposed to
10 and January 15, 1973, on the two questions quoted in paragraph 1 begin functioning: —
of this Supplemental Urgent Motion.’ ‘Provincial governors and city and municipal mayors had
“In support of this prayer, it was alleged — been meeting with barrio captains and community leaders
‘3. That petitioners are now before this Honorable Court in order since last Monday [January 8, 1973) to thresh out the
to ask further that this Honorable Court issue a restraining order mechanics in the formation of the Citizens Assemblies and the
enjoining herein respondents, particularly respondent Commission on topics for discussion.’ [Bulletin Today, January 10, 1973]
Elections as well as the Department of Local Governments and its
64
head, Secretary Jose Roño; the Department of Agrarian Reforms and
its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and 64 SUPREME COURT REPORTS ANNOTATED
their deputies, subordinates and/or substitutes, from collecting, Javellana vs. The Executive Secretary
31/326 32
law to perform duties relative to the conduct of elections on matters

‘It should be recalled that the Citizens’ Assemblies were ordered formed pertaining to the enforcement of the provisions of this Code *****”
only at the beginning of the year [Daily Express, January 1, 1973], and [Election Code of 1971, Sec. 3].
considering the lack of experience of the local organizers of said assemblies, ‘6. That unless the petition at bar is decided immediately and the
as well as the absence of sufficient guidelines for organization, it is too Commission on Elections, together with the officials and government
much to believe that such assemblies could be organized at such a short agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are
notice. restrained or enjoined from collecting, certifying, reporting or announcing to
‘5. That for lack of material time, the appropriate amended petition to the President the results of the alleged voting of the so-called Citizens’
include the additional officials and government agencies mentioned in Assemblies, irreparable damage will be caused to the Republic of the
paragraph 3 of this Supplemental Urgent Motion could not be completed Philippines, the Filipino people, the cause of freedom an democracy, and the
because, as noted in the Urgent Motion of January 12, 1973, the submission petitioners herein because:
of the proposed Constitution to the Citizens’ Assemblies was not made [a] After the result of the supposed voting on the questions
known to the public until January 11, 1973. But be that as it may, the said mentioned in paragraph 1 hereof shall have been announced, a
additional officials and agencies may be properly included in the petition at conflict will arise between those who maintain that the 1935
bar because: — Constitution is still in force, on the one hand, and those who will
[a] The herein petitioners have prayed in their petition for the maintain that it has been superseded by the proposed Constitution, on
annulment not only of Presidential Decree No. 73, but also of “any the other, thereby creating confusion, if not chaos;
similar decree, proclamation, order or instruction.” [b] Even the jurisdiction of this Court will be subject to serious
so that Presidential Decree No. 86, insofar at least as it attempts to submit attack because the advocates of the theory that the proposed
the proposed Constitution to a plebiscite by the so-called Citizens’ Constitution has been ratified by reason of the announcement of the
Assemblies, is properly in issue in this case, and those who enforce, results of the proceedings of the so-called Citizens’ Assemblies will
implement, or carry out the said Presidential Decree No. 86, and the argue that, General Order No. 3, which shall also be deemed ratified
instructions incidental thereto clearly fall within the scope of this petition; pursuant to the Transitory Provisions of the proposed Constitution,
[b] In their petition, petitioners sought the issuance of a writ of has placed Presidential Decree Nos. 73 and 86 beyond the reach and
preliminary injunction restraining not only the respondents named in jurisdiction of this Honorable Court.’
the petition but also their “agents” from implementing not only
66
Presidential Decree No. 73, but also “any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite
on January 15, 1973 for the purpose of submitting to the Filipino 66 SUPREME COURT REPORTS ANNOTATED
people for their ratification or rejection the 1972 Draft or proposed Javellana vs. The Executive Secretary
Constitution approved by the Constitutional Convention on
November 30, 1972”; and finally,
[c] Petitioners prayed for such other relief which may be just and “On the same date — January 15, 1973 — the Court passed a resolution
equitable. [p. 39, Petition]. 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,”
65
and setting the motion for hearing “on January 17, 1973, at 9:30 a.m.”
While the case was being heard, on the date last mentioned, at noontime, the
VOL. 50, MARCH 31, 1973 65 Secretary of Justice called on the writer of this opinion and said that, upon
Javellana vs. The Executive Secretary instructions of the President, he (the Secretary of Justice) was delivering to
him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall
“Therefore, viewing the case from all angles, the officials and and announced to the Court, the parties in G.R. No. L-35948 — inasmuch as
government agencies mentioned in paragraph 3 of this Supplemental Urgent the hearing in connection therewith was still going on — and the public
Motion, can lawfully be reached by the processes of this Honorable Court there present that the President had, according to information conveyed by
by reason of this petition, considering, furthermore, that the Commission on the Secretary of Justice, signed said Proclamation No. 1102, earlier that
Elections has under our laws the power, among others, of: — morning. Thereupon, the writer read Proclamation No. 1102 which is of the
“(a) Direct and immediate supervision and control over national, following tenor:
provincial, city, municipal and municipal district officials required by ‘BY THE PRESIDENT OF THE PHILIPPINES
33/326 34
‘PROCLAMATION NO. 1102 by an overwhelming majority of all of the votes cast by the members of all
‘ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF the Barangays (Citizens Assemblies) throughout the Philippines, and has
THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL thereby come into effect.
CONVENTION. ‘IN WITNESS WHEREOF, I have hereunto set my hand and caused the
‘WHEREAS, the Constitution proposed by the nineteen hundred seal of the Republic of the Philippines to be affixed.
seventy-one Constitutional Convention is subject to ratification by the ‘Done in the City of Manila, this 17th day of January, in the year of Our
Filipino people; Lord, nineteen hundred and seventy-three.
‘WHEREAS, Citizens Assemblies were created in barrios, in (Sgd.) FERDINAND E. MARCOS
municipalities and in districts/wards in chartered cities pursuant to ‘President of the Philippines
Presidential Decree No. 86, dated December 31, 1972, composed of all ‘By the President:
persons who are residents of the barrio, district or ward for at least six ‘ALEJANDRO MELCHOR
months, fifteen years of age or over, citizens of the Philippines and who are ‘Executive Secretary’
registered in the list of Citizen Assembly members kept by the barrio,
68
district or ward secretary;
‘WHEREAS, the said Citizens Assemblies were established precisely to
broaden the base of citizen participation in the democratic process and to 68 SUPREME COURT REPORTS ANNOTATED
afford ample opportunity for the citizenry to express their views on Javellana vs. The Executive Secretary
important national issues;
‘WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following “Such is the background of the cases submitted determination. After
questions were posed before the Citizens admitting some of the allegations made in the petition in L-35948 and
denying the other allegations thereof, respondents therein alleged in their
67
answer thereto, by way affirmative defenses: 1) that the ‘questions raised’ in
said petition ‘are political in character’; 2) that ‘the Constitutional
VOL. 50, MARCH 31, 1973 67 Convention acted freely and had plenary authority to propose not only
Javellana vs. The Executive Secretary amendments but a Constitution which would supersede the present
Constitution’; 3) that ‘the President’s call for a plebiscite and the
Assemblies or Barangays: Do you approve of the New Constitution? Do you appropriation of funds for this purpose are valid’; 4) that ‘there is not an
still want a plebiscite to be called to ratify the new Constitution? improper submission” and ‘there can be a plebiscite under Martial Law’;
“WHEREAS, fourteen million nine hundred seventy-six thousand five and 5) that the ‘argument that the Proposed Constitution is vague and
hundred sixty-one (14,976,561) members of all the Barangays (Citizens incomplete, makes an unconstitutional delegation of power, includes a
Assemblies) voted for the adoption of the proposed Constitution, as against referendum on the proclamation of Martial Law and purports to exercise
seven hundred forty-three thousand eight hundred sixty-nine (743,869) who judicial power’ is ‘not relevant and x x x without merit.’ Identical defenses
voted for its rejection; while on the question as to whether or not the people were set up in the other cases under consideration.
would still like a plebiscite to be called to ratify the new Constitution, “Immediately after the hearing held on January 17, 1973, or since the
fourteen million two hundred ninety-eight thousand eight hundred fourteen afternoon of that date, the Members of the Court have been deliberating on
(14,298,814) answered that there was no need for a plebiscite and that the the aforementioned cases and, after extensive discussions on the merits
vote of the Barangays (Citizens Assemblies) should be considered as a vote thereof, have deemed it best that each Member write his own views thereon
in a plebiscite; and that thereafter the Chief Justice should state the result or the votes thus
“WHEREAS, since the referendum results show that more than ninety- cast on the points in issue. Hence, the individual views of my brethren in the
five (95) per cent of the members of the Barangays (Citizens Assemblies) Court are set forth in the opinions attached hereto, except that, instead of
are in favor of the new Constitution, the Katipunan ng Mga Barangay has writing their separate opinions, some Members have preferred to merely
strongly recommended that the new Constitution should already be deemed concur in the opinion of one of our colleagues.”
ratified by the Filipino people;
‘NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do Then the writer of said decision expressed his own opinion on the
hereby certify and proclaim that the Constitution proposed by the nineteen issues involved therein, after which he recapitulated the views of the
hundred and seventy-one (1971) Constitutional Convention has been ratified Members of the Court, as follows:
35/326 36
“1. There is unanimity on the justiciable nature of the issue on the “c. Justice Zaldivar maintains unqualifiedly that the Proposed
legality of Presidential Decree No. 73. Constitution has not been ratified in accordance with
“2. On the validity of the decree itself, Justices Makalintal, Castro,
70
Fernando, Teehankee, Esguerra and myself, or six (6) Members of the
Court, are of the opinion that the issue has become moot and academic,
whereas Justices Barredo, Makasiar and Antonio voted to uphold the 70 SUPREME COURT REPORTS ANNOTATED
validity of said Decree. Javellana vs. The Executive Secretary
“3. On the authority of the 1971 Constitutional Convention to pass the
proposed Constitution or to incorporate therein the provisions contested by Article XV of the 1935 Constitution, and that, accordingly, it has no
the petitioners in L-35948, Justices force and effect whatsoever.
“d. Justice Antonio feels ‘that the Court is not competent to act’
69
on the issue whether the Proposed Constitution has been ratified by
the people or not, ‘in the absence of any judicially discoverable and
VOL. 50, MARCH 31, 1973 69 manageable standards,’ since the issue ‘poses a question of fact.’
Javellana vs. The Executive Secretary “7. On the question whether or not these cases should be dismissed,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
Makalintal, Castro, Teehankee and Esguerra opine that the issue has become in the affirmative, for the reasons set forth in their respective opinions.
moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and Justices Fernando, Teehankee, and the writer similarly voted, except as
myself have voted to uphold the authority of the Convention. regards Case No. L-35948 as to which they voted to grant to the petitioners
“4. Justice Fernando, likewise, expressed the view that the 1971 therein a reasonable period of time within which to file appropriate
Constitutional Convention had authority to continue in the performance of pleadings should they wish to contest the legality of Presidential
its functions despite the proclamation of Martial Law. In effect, Justices Proclamation No. 1102. Justice Zaldivar favors the granting of said period
Barredo, Makasiar and Antonio hold the same view. to the petitioners in said Case No. L-35948 for the aforementioned purpose,
“5. On the question whether the proclamation of Martial Law affected but he believes, in effect, that the Court should go farther and decide on the
the proper submission of the proposed Constitution to a plebiscite, insofar as merits everyone of the cases under consideration.”
the freedom essential therefor is concerned, Justice Fernando is of the
opinion that there is a repugnancy between the election contemplated under Accordingly, the Court — acting in conformity with the position
Art. XV of the 1935 Constitution and the existence of Martial Law, and taken by six (6) of its members,1 with three (3) members
would, therefore, grant the petitions were they not moot and academic. dissenting,2 with respect to G.R. No. L-35948, only and another
Justices Barredo, Antonio and Esguerra are of the opinion that issue member 3 dissenting, as regards all of the cases dismissed the same,
involves questions of fact which cannot be predetermined, and that Martial without special pronouncement as to costs.
Law per se does not necessarily preclude the factual possibility of adequate The Present Cases
freedom, for the purposes contemplated. Prior thereto, or on January 20, 1973, Josue Javellana filed Case
“6. On Presidential Proclamation No. 1102, the following views were G.R. No. L-36142 against the Executive Secretary and the
expressed: Secretaries of National Defense, Justice and Finance, to restrain said
“a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, respondents “and their subordinates or agents from implementing
Esguerra and myself are of the opinion that the question of validity of any of the provisions of the propose Constitution not found in the
said Proclamation has not been properly raised before the Court, present Constitution” — referring to that of 1935. The petition
which, accordingly, should not pass upon such question. therein, filed by Josue Javellana, as a “Filipino citizen, and a
“b. Justice Barredo holds that the issue on the constitutionality of qualified and registered
Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the ‘purported ratification of the _______________
Proposed Constitution x x x based on the referendum among 1 Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.
Citizens’ Assemblies falls short of being in strict conformity with the 2 Chief Justice Concepcion and Justices Fernando and Teehankee.
requirements of Article XV of the 1935 Constitution,’ but that such 3 Justice Zaldivar.
unfortunate drawback notwithstanding, ‘considering all other related
relevant circumstances, x x x the new Constitution is legally 71
recognizable and should be recognized as legitimately in force.’
37/326 38
Senator and Minority Floor Leader of the Senate,” and others as
voter” and as “a class suit, for himself, and in behalf of all citizens “duly elected members” thereof, filed Case G.R. No. L-36165,
and voters similarly situated,” was amended on or about January 24, against the Executive Secretary, the Secretary National Defense, the
1973. After reciting in substance the facts set forth in the decision in Chief of Staff of the Armed Forces of the Philippines, the Secretary
the plebiscite cases, Javellana alleged that the President had of General Services, the President and the President Pro Tempore of
announced “the immediate implementation of the New Constitution, the Senate. In their petition — as amended on January 26, 1973 —
thru his Cabinet, respondents including,” and that the latter “are petitioners Gerardo Roxas, et al. allege, inter alia, that the term of
acting without, or in excess of jurisdiction in implementing the said office of three of the aforementioned petitioners8 would expire on
proposed Constitution” upon the ground: “that the President, as December 31, 1975, and that of the others9 on December 31, 1977;
Commander-in-Chief of the Armed Forces of the Philippines, is that pursuant to our 1935 Constitution, “which is still in force
without authority to create the Citizens Assemblies”; that the same Congress of the Philippines “must convene for its 8th Session on
“are without power to approve the proposed Constitution ...”; “that Monday, January 22, 1973, at 10:00 A.M., which is regular
the President is without power to proclaim the ratification by the customary hour of its opening session”; that “on said day, from
Filipino people of the proposed Constitution”; and “that the election 10:00 A.M. up to the afternoon,” said petitioner “along with their
held to ratify the proposed Constitution was not a free election, other colleagues, were unlawfully prevented from using the Senate
hence null and void.” Session Hall, the same having been closed by the authorities in
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. physical possession and control the Legislative Building”; that “(a)t
Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U. about 5:00 to 6:00 P.M. the said day, the premises of the entire
Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Legislative Building were ordered cleared by the same authorities,
Executive Secretary, the Secretaries of Finance, Justice, Land and no one was allowed to enter and have access to said premises”;
Reform, and National Defense, the Auditor General, the Budget that “(r)espondent Senate President Gil J. Puyat and, in his absence,
Commissioner, the Chairman of the Presidential Commission on respondent President Pro Tempore Jose Roy we asked by petitioning
Reorganization, the Treasurer of the Philippines, the Commission on Senators to perform their duties under the law and the Rules of the
Elections and the Commissioner of Civil Service;4 on February 3, Senate, but unlawfully refrained and continue to refrain from doing
1973, by Eddie Monteclaro, personally and as President of the so”; that the petitioners ready and willing to perform their duties as
National Press Club of the Philippines, against the Executive duly elected members of the Senate of the Philippines,” but
Secretary, the Secretary of Public Information, the Auditor General, respondent Secretary of National Defense, Executive Secretary and
the Budget Commissioner and the National Treasurer;5 and on Chief of Staff, “through their agents and representatives, are
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., preventing petitioners from performing their duties as duly elected
Leonardo Asodisen, Jr. and Raul M. Gonzales,6 against the Senators of the Philippines”; that “the Senate premise in the
Executive Secretary, the Secretary of National Defense, the Budget Congress of the Philippines Building x x x are occupied by and are
Commissioner and the Auditor General. under the physical control of the elements military organizations
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio under the direction of said
Padilla, Jovito R. Salonga, Salvador H. Laurel,7 Ramon V. Mitra, Jr.
and Eva Estrada-Kalaw, the first as “duly elected _______________
8 Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now, after
the withdrawal of the latter, the first two (2) only.
_______________
9 Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.
4 Case G.R. No. L-36164.
5 Case G.R. No. L-36236. 73
6 Case G.R. No. L-36293.
7 Who withdrew as petitioner on January 25, 1973.
VOL. 50, MARCH 31, 1973 73
72
39/326 40
respondents”; that, as per “official reports, the Department of Secretary, the Secretary of National Defense, the Chief of Staff of
General Services x x x is now the civilian agency in custody of the the Armed Forces of the Philippines, and the x x x Secretary of
premises of the Legislative Building”; that respondents “have General Service, as well as all their agents, representatives and
unlawfully excluded and prevented, and continue to so exclude and subordinates to vacate the premises of the Senate of the Philippines
prevent” the petitioners “from the performance of their sworn duties, and to deliver physical possession of the same to the President of the
invoking the alleged approval of the 1972 (1973) Constitution of the Senate or his authorized representative”; and that hearing, judgment
Philippines by action of the so-called Citizens’ Assemblies on be rendered declaring null and Proclamation No. 1102 x x x and any
January 10, 1973 to January 15, 1973, as stated in and by virtue of order, decree, proclamation having the same import and objective,
Proclamation No. 1102 signed and issued by the President of the issuing writs of prohibition and mandamus, as prayed for against
Philippines”; that “the alleged creation of the Citizens’ Assemblies above-mentioned respondents, and making the writ injunction
as instrumentalities for the ratification of the Constitution of the permanent; and that a writ of mandamus be issued against the
Republic of the Philippines” is inherently illegal and palpably respondents Gil J. Puyat and Jose Roy directing them to comply
unconstitutional; that respondents Senate President and Senate with their duties and functions as President and President Pro
President Pro Tempore “have unlawfully refrained and continue to Tempore, respectively, of the Senate of Philippines, as provided by
refrain from and/or unlawfully neglected and continue to neglect the law and the Rules of the Senate.”
performance of their duties and functions as such officers under the Required to comment on the above-mentioned petitions and/or
law and the Rules of the Senate” quoted in the petition; that because amended petitions, respondents filed, with the leave Court first had
of events supervening the institution of the plebiscite cases, to which and obtained, a consolidated comment on said petitions and/or
reference has been made in the preceding pages, the Supreme Court amended petitions, alleging that the same ought to have been
dismissed said cases on January 22, 1973, by a majority vote, upon dismissed outright; controverting petitioners’ allegations concerning
the ground that the petitions therein had become moot and academic; the alleged lack impairment of the freedom of the 1971 Constitution
that the alleged ratification of the 1972 (1973) Constitution “is Convention to approve the proposed Constitution, its alleged lack of
illegal, unconstitutional and void and x x x can not have superseded authority to incorporate certain contested provisions thereof, the
and revoked the 1935 Constitution,” for the reasons specified in the alleged lack of authority of the President to create and establish
petition as amended; that, by acting as they did, the respondents and Citizens’ Assemblies “for the purpose submitting to them the matter
their “agents, representatives and subordinates x x x have excluded of ratification of the new Constitution,” the alleged “improper or
the petitioners from an office to which” they “are lawfully entitled”; inadequate submission of the proposed constitution,” the “procedure
that “respondents Gil J. Puyat and Jose Roy have unlawfully for ratification adopted x x x through the Citizens Assemblies”; a
refrained from convening the Senate for its 8th session, assuming maintaining that: 1) “(t)he Court is without jurisdiction to act on
general jurisdiction over the Session Hall and the premises of the these petitions”; 2) the questions raised therein are “political in
Senate and x x x continue such inaction up to this time and x x x a character and therefore nonjusticiable”; 3) “there substantial
writ of mandamus is warranted in order to compel them to comply compliance with Article XV of the 1935 Constitution”; 4) “(t)he
with the duties and functions specifically enjoined by law”; and that Constitution was properly submitted the people in a free, orderly and
“against the above mentioned unlawful acts of the respondents, the honest election; 5)
petitioners have no appeal nor other speedy and adequate remedy in
75
the ordinary course of law except by invoking the equitable
remedies of mandamus and prohibition with the provisional remedy
of preliminary mandatory injunction.” VOL. 50, MARCH 31, 1973 75
74 SUPREME COURT REPORTS ANNOTATED “Proclamation No. 1102, certifying the results of the election, is
conclusive upon the courts”; and 6) “(t)he amending process
Javellana vs. The Executive Secretary outlined in Article XV of the 1935 Constitution is not exclusive of
other modes of amendment.”
Respondents Puyat and Roy, in said Case G.R. No. L-36165,
Premised upon the foregoing allegations, said petitioners prayed filed their separate comment therein, alleging that “(t)he subject
that, “pending hearing on the merits, a writ of preliminary matter” of said case “is a highly political question which, under the
mandatory injunction be issued ordering respondents Executive circumstances, this x x x Court would not be in a position to act
41/326 42
upon judicially,” and that, in view of the opinions expressed by three thereof on his colleagues, and this they did. Subsequently, the Court
members of this Court in its decision in the plebiscite cases, in effect discussed said opinions and votes were cast thereon. Such individual
upholding the validity of Proclamation No. 1102, “further opinions are appended hereto.
proceedings in this case may only be an academic exercise in Accordingly, the writer will first express his person opinion on
futility.” the issues before the Court. After the exposition his aforesaid
On February 5, 1973, the Court issued a resolution requiring opinion, the writer will make, concurrently with his colleagues in the
respondents in L-36236 to comment on the petition therein not later Court, a resume of summary of the votes cast by them in these cases.
than Saturday, February 10, 1973, and setting the case for hearing on Writer’s Personal Opinion
February 12, 1973, at 9:30 a.m. By resolution dated February 7, I.
1973, this Court resolved to consider the comments of the Alleged academic futility of further proceedings in G.R. L-36165.
respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as This defense or theory, set up by counsel for respondents Gil J.
motions to dismiss the petitions therein, and to set said cases for Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor
hearing on the same date and time as L-36236. On that date, the General, is predicated upon the fact that, in Our decision in the
parties in G.R. No. L-3628310 agreed that the same be, likewise, plebiscite cases, Mr. Justice Barredo had expressed the view that the
heard, as it was, in fact, heard jointly with the aforementioned cases 1935 Constitution had “pro tanto passed into history” and “been
G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, legitimately supplanted by the Constitution now in force by virtue of
which began on February 12, 1973, shortly after 9:30 a.m., was Proclamation No. 1102 x x x”; that Mr. Justice Antonio did not feel
continued not only that afternoon, but, also, on February 13, 14, 15 “that this Court competent to act” in said cases “in the absence of
and 16, morning and afternoon, after which the parties were granted any judicially discoverable and manageable standards” and because
up to February 24, 1973, noon, within which to submit their notes of “the access to relevant information is insufficient to assure the
oral arguments and additional arguments, as well as the documents correct determination of the issue,” apart from the
required of them or whose presentation was reserved by them. The
77
same resolution granted the parties until March 1, 1973, to reply to
the notes filed by their respective opponents. Counsel for the
petitioners in G.R. Nos. L-36164 and L-36165 filed their VOL. 50, MARCH 31, 1973 77
aforementioned notes on February 24, 1973, on which date the
Solicitor General sought an extension of time up to March 3, 1973,
within which to file his notes, which was granted, with
circumstance that “the new constitution has been promulgated and
great interests have already arisen under it” and that the political
_______________
organ of the Government has recognized its provisions; whereas, Mr.
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
Justice Esguerra had postulated that “(w)ithout any competent
76 evidence x x x about the circumstances attending the holding” of the
“referendum or plebiscite” thru the Citizens’ Assemblies, he “cannot
say that it was not lawfully held” and that, accordingly,
he assumed ”that what the proclamation (No. 1102) says on its face
Javellana vs. The Executive Secretary is true and until overcome by satisfactory evidence” he could not
“subscribe to the claim that such plebiscite was not held
the understanding that said notes shall include his reply to the notes accordingly”; and that he accepted “as a fait accompli that the
already filed by the petitioners in G.R. Nos. L-36164 and L-36165. Constitution adopted (by the 1971 Constitutional Convention) on
Counsel for the petitioners, likewise, moved and were granted an November 30, 1972, has been duly ratified.”
extension of time, to expire on March 10, 1973, within which to file, Counsel for respondents Gil J. Puyat and Jose Roy goes on to say
as they did, their notes in reply to those submitted by the Solicitor that, under these circumstances, “it seems remote or improbable that
General on March 3, 1973. On March 21, 1973, petitioners in L- the necessary eight (8) votes under the 1935 Constitution, and much
36165 filed a “Manifestation a Supplemental Rejoinder,” whereas less the ten (10) votes required by the 1972 (1973) Constitution, can
the Office of the Solicitor General submitted in all these cases a be obtained for the relief sought in the Amended Petition” in G.R.
“Rejoinder Petitioners’ Replies.” No. L-36165.
After deliberating on these cases, the members of the Court I am unable to share this view. To begin with, Mr. Justice
agreed that each would write his own opinion and serve a copy Barredo announced publicly, in open court, during the hearing of
43/326 44
these cases, that he was and is willing to be convinced that his vote of two-thirds (2/3) of all members of each House of
aforementioned opinion in the plebiscite cases should be Congress.12 A treaty is entered into by the President with the
reconsidered and changed. In effect, he thus declared that he had an concurrence of the Senate,13 which is not required in the case of
open mind in connection with the cases at bar, and that in deciding rules, regulations or executive orders which are exclusive acts of the
the same he would not necessarily adhere to said opinion if the President. Hence, to nullify the same, a lesser number of votes is
petitioners herein succeeded in convincing him that their view necessary in the Supreme Court than that required to invalidate a
should be sustained. law or treaty.
Secondly, counsel for the aforesaid respondents had apparently Although the foregoing refers to rules, regulations and
assumed that, under the 1935 Constitution, eight (8) votes are
necessary to declare invalid the contested Proclamation No. 1102. I _______________
do not believe that this assumption is borne out by any provision of 11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v.
said Constitution. Section 10 of Article VIII thereof reads: Commission on Elections, L-28196 & L-28224, Nov. 9, 1967. Emphasis ours.
12 Art. VI, sec. 20(1), Constitution.
“All cases involving the constitutionality of a treaty or law shall be heard
13 Art. VII, sec. 10(7), Constitution.
and decided by the Supreme Court in banc, and no treaty or law may be
declared unconstitutional without the concurrence of two thirds of all the 79
members of the Court.”
78 VOL. 50, MARCH 31, 1973 79

Javellana vs. The Executive Secretary executive orders issued by the President, the dictum applies with
equal force to executive proclamation, like said Proclamation No.
1102, inasmuch as the authority to issue the same is governed by

section 63 of the Revised Administrative Code, which provides:
Pursuant to this section, the concurrence of two-thirds of all the
Members of the Supreme Court is required only to declare “treaty or “Administrative acts and commands of the (Governor-General) President
law” unconstitutional. Construing said provision, in a resolution of the Philippines touching the organization or mode of operation of the
dated September 16, 1949, then Chief Justice Moran, voicing Government or rearranging or readjusting any of the districts, divisions,
the unanimous view of the Members of this Court, postulated: parts or ports of the (Philippine Islands) Philippines and all acts and
commands governing the general performance of duties by public
“x x x There is nothing either in the Constitution or in the Judiciary Act
employees or disposing of issues of general concern shall be made effective
requiring the vote of eight Justices to nullify a rule or regulation or an
in executive orders.
executive order issued by the President. It is very significant that in the
“Executive orders fixing the dates when specific laws, resolutions, or
previous drafts of section 10, Article VIII of the Constitution, ‘executive
orders are to have or cease to (have) effect and any information concerning
order’ and ‘regulation’ were included among those that required for their
matters of public moment determined by law, resolution, or executive
nullification the vote of two-thirds of all the members of the Court. But
orders, may be promulgated in an executive proclamation, with all the force
‘executive order’ and ‘regulation’ were later deleted from the final draft
of an executive order.”14
(Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496),
and thus a mere majority of six members of this Court is enough to nullify In fact, while executive order embody administrative acts or
them.”11 commands of the President, executive proclamations are mainly
informative and declaratory in character, and so does counsel for
The distinction is not without reasonable foundation. The two
respondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-
thirds vote (eight [8] votes) requirement, indeed, was made to apply
36165.15 As consequence, an executive proclamation has no
only to treaty and law, because, in these cases, the participation of
more than “the force of an executive order,” so that, for the Supreme
the two other departments of the government — the Executive and
Court to declare such proclamation unconstitutional, under the 1935
the Legislative — is present, which circumstance is absent in the
Constitution, the same number of votes needed to invalidate an
case of rules, regulations and executive orders. Indeed, a law
executive order, rule or regulation — namely, six (6) votes — would
(statute) passed by Congress is subject to the approval or veto of the
suffice.As regards the applicability of the provisions of the proposed
President, whose disapproval cannot be overridden except by the
45/326 46
new Constitution, approved by the 1971 Constitutional Convention, _______________

in the determination of the question whether or not it is now in force, 16 In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist,
it is obvious that such question depends upon whether or not the said 59 So. Rep. 963; McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74
new Constitution has been ratified in accordance with the N.D. 1, 168 A.L.R. 621, 24 N.W. 2d. 907; State ex rel. Landis, Atty. Gen. v.
requirements of the 1935 Constitution, upon the authority of which Thompson, 163 So. Rep. 270; St. Louis Brewing Association v. Moore, 64 L. ed. 947;
said Constitutional Convention was called and approved the Ellingham v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft, 87 So. Rep. 375.
proposed Constitution.
81
_______________
14 Italics ours. VOL. 50, MARCH 31, 1973 81
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973. Javellana vs. The Executive Secretary

that the conclusion reached by the Chief Executive in the dispositive
80 portion of Proclamation No. 1102 is not borne out by the whereases
preceding the same, as the predicates from which said conclusion
80 SUPREME COURT REPORTS ANNOTATED was drawn; that the plebiscite or “election” required in said Article
XV has not been held; that the Chief Executive has no authority,
Javellana vs. The Executive Secretary under the 1935 Constitution, to dispense with said election or
plebiscite; that the proceedings before the Citizens’ Assemblies did
It is well settled that the matter of ratification of an amendment to not constitute and may not be considered as such plebiscite; that the
the Constitution should be settled by applying the provisions of the facts of record abundantly show that the aforementioned Assemblies
Constitution in force at the time of the alleged ratification, or the old could not have been held throughout the Philippines from January
Constitution.16 10 to January 15, 1973; and that, in any event, the proceedings in
II said Assemblies are null and void as an alleged ratification of the
Does the issue on the validity of Proclamation No. 1102 partake new Constitution proposed by the 1971 Constitutional Convention,
of the nature of a political, and, hence, non-justiciable question? not only because of the circumstances under which said Assemblies
The Solicitor General maintains in his comment the affirmative had been created and held, but, also, because persons disqualified to
view and this is his main defense. In support thereof, he alleges that vote under Article V of the Constitution were allowed to participate
“petitioners would have this Court declare as invalid the New therein, because the provisions of our Election Code were not
Constitution of the Republic” from which — he claims — “this observed in said Assemblies, because the same were not held under
Court now derives its authority”; that “nearly 15 million of our body the supervision of the Commission on Elections, in violation of
politic from the age of 15 years have mandated this Constitution to section 2 of Article X of the 1935 Constitution, and because the
be the New Constitution and the prospect of unsettling acts done in existence of Martial Law and General Order No. 20, withdrawing or
reliance on it caution against interposition of the power of judicial suspending the limited freedom to discuss the merits and demerits of
review”; that “in the case of the New Constitution, the government said proposed Constitution, impaired the people’s freedom in voting
has been recognized in accordance with the New Constitution”; that thereon, particularly a viva voce, as it was done in many instances,
“the country’s foreign relations are now being conducted in as well as their ability to have a reasonable knowledge of the
accordance with the new charter”; that “foreign governments have contents of the document on which they were allegedly called upon
taken note of it”; that the “plebiscite cases” are “not precedents for to express their views.
holding questions regarding proposal and ratification justiciable”; Referring now more specifically to the issue on whether the new
and that “to abstain from judgment on the ultimate issue of Constitution proposed by the 1971 Constitutional Convention has
constitutionality is not to abdicate duty.” been ratified in accordance with the provisions of Article XV of the
At the outset, it is obvious to me that We are not being asked to 1935 Constitution is a political question or not, I do not hesitate to
“declare” the new Constitution invalid. What petitioners dispute is state that the answer must be in the negative. Indeed, such is the
the theory that it has been validly ratified by the people, especially position taken by this Court,17 in
that they have done so in accordance with Article XV of the 1935
Constitution. The petitioners maintain _______________
47/326 48
17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et 83

al., L-35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967;
Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v.
VOL. 50, MARCH 31, 1973 83
COMELEC,
82
whether Presidential Decree No. 73 calling a plebiscite to be held on

82 SUPREME COURT REPORTS ANNOTATED January 15, 1973, for the ratification or rejection of the proposed
new Constitution, was valid or not, was not a proper subject of
judicial inquiry because, they claimed, it partook of a political
nature, and We unanimously declared that the issue was a
an endless line of decisions, too long to leave any room for possible justiciable one. With identical unanimity, We overruled the
doubt that said issue is inherently and essentially justiciable. Such, respondents’ contention in the 1971 habeas corpus
also, has been the consistent position of the courts of the United cases,19 questioning Our authority to determine the constitutional
States of America, whose decisions have a persuasive effect in this sufficiency of the factual bases of the Presidential proclamation
jurisdiction, our constitutional system in the 1935 Constitution being suspending the privilege of the writ of habeas corpus on August 21,
patterned after that of the United States. Besides, no plausible reason 1971, despite the opposite view taken by this Court in Barcelona v.
has, to my mind, been advanced to warrant a departure from said Baker20 and Montenegro v. Castañeda,21 insofar as it adhered to the
position, consistently with the form of government established under former case, which view We, accordingly, abandoned and refused to
said Constitution. apply. For the same reason, We did not apply and expressly
Thus, in the aforementioned plebiscite cases,18 We rejected the modified, in Gonzales v. Commission on Elections,22 the political-
theory of the respondents therein that the question question theory adopted in Mabanag v. Lopez Vito.23 Hence,
respondents herein urge Us to reconsider the action thus taken by the
_______________ Court and to revert to and follow the views expressed in Barcelon v.
L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug. 31, 1967; Baker and Mabanag v. Lopez Vito.24
Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967; Pelayo v. Auditor General, L- The reasons adduced in support thereof are, however,
23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L-23326, Dec. substantially the same as those given in support of the political-
18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara v. question theory advanced in said habeas corpus and plebiscite cases,
Inocentes, L-25577, Mar. 15, 1966; Gillera v. Fernandez, L-20741, Jan. 31, 1964; which were carefully considered by this Court and found by it to be
Siguiente v. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of Naguilian v. legally unsound and constitutionally untenable. As a consequence,
NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Our decision in the
Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al., L-
15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v.
_______________
Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing
19 L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-
& Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L-
33965, Rogelio V. Arienda v. Secretary of National Defense, et al.; L-33973,
15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July 31, 1961;
Luzvimindo David v. Gen. Eduardo Garcia, et al.; L-33962, Felicidad G. Prudente v.
Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July 31, 1961;
General Manuel Yan, et al.; L-34004, Domingo E. de Lara v. Brigadier-General
Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961;
Eduardo M. Garcia; L-34013, Reynaldo Rimando v. Brig. Gen. Eduardo M. Garcia;
Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura v. Regional
L-34039, Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin
Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L-
Oreta, Jr. v. Gen. Eduardo Garcia, et al.; and L-34339, Gary B. Olivar, et al. v. Gen.
15693, July 31, 1961; Pascual v. Sec. of Public Works and Communications, L-
Eduardo Garcia, et al.
10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards Commission, L-14837, June
20 5 Phil. 87.
30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v.
21 91 Phil. 882.
NAWASA, L-12892, April 20,1960; Montes v. Civil Service Board of Appeals, 101
22 G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
Phil. 490, Rutter v. Esteban, 93 Phil. 68; Araneta v. Dinglasan, 84 Phil. 368;
23 78 Phil. 1.
Borromeo v. Mariano, 41 Phil. 322.
24 Supra.
18 G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953,
L-35961, L-35965 and L-35979, decided on January 22, 1973. 84
49/326 50
84 SUPREME COURT REPORTS ANNOTATED Appointments — may approve or disapprove some appointments
Javellana vs. The Executive Secretary made by the President. It, also, has the power of appropriation, to
“define, prescribe, and apportion the jurisdiction of the various
courts,” as well as that of impeachment. Upon the other hand, under
aforementioned habeas corpus cases partakes of the nature and the judicial power vested by the Constitution, the “Supreme Court
effect of a stare decisis, which gained added weight by its virtual and x x x such inferior courts as may be established by law,” may
reiteration in the plebiscite cases. settle or decide with finality, not only justiciable controversies
The reason why the issue under consideration and other issues of between private individuals or entities, but, also, disputes or
similar character are justiciable, not political, is plain and simple. conflicts between a private individual or entity, on the one hand, and
One of the principal bases of the non-justiciability of so-called an officer or branch of the government, on the other, or between two
political questions is the principle of separation of powers — (2) officers or branches of service, when the latter officer or branch
characteristic of the Presidential system of government — the is charged with acting without jurisdiction or in excess thereof or in
functions of which are classified or divided, by reason of their violation of law. And so, when a power vested in said officer or
nature, into three (3) categories, namely: 1) those involving the branch of the government is absolute or unqualified, the acts in the
making of laws, which are allocated to the legislative department; 2) exercise of such power are said to be political in nature, and,
those concerned mainly with the enforcement of such laws and of consequently, non-justiciable or beyond judicial review. Otherwise,
judicial decisions applying and/or interpreting the same, which courts of justice would be arrogating upon themselves a power
belong to the executive department; and 3) those dealing with the conferred by the Constitution upon another branch of the service to
settlement of disputes, controversies or conflicts involving rights, the exclusion of the others. Hence, in Tañada v. Cuenco,26 this Court
duties or prerogatives that are legally demandable and enforceable, quoted with approval from In re McConaughy,27 the following:
which are apportioned to courts of justice. Within its own sphere —
but only within such sphere — each department is supreme and
independent of the others, and each is devoid of authority, not only “ ‘At the threshold of the case we are met with the assertion that the
to encroach upon the powers or field of action assigned to any of the questions involved are political, and not judicial. If this is correct, the court
other departments, but, also, to inquire into or pass upon the has no jurisdiction as the certificate of the state canvassing board would then
advisability or wisdom of the acts performed, measures taken or be final, regardless of the actual vote upon the amendment. The question
decisions made by the other departments — provided that such acts, thus raised is a fundamental one; but it has been so often decided contrary
measures or decisions are within the area allocated thereto by the to the view contended for by the Attorney General that it would seem to be
Constitution.25 finally settled.
This principle of separation of powers under the presidential * * * *
system goes hand in hand with the system of checks and balances, “ ‘* * * What is generally meant, when it is said that a question is
under which each department is vested by the Fundamental Law political, and not judicial, is that it is a matter which is to be exercised by the
with some powers to forestall, restrain or arrest a possible or actual people in their primary political capacity, or that it has been specifically
misuse or abuse of powers by the other departments. Hence, the delegated to some other department or particular officer of the
appointing power of the Executive, his pardoning power, his veto government, with discretionary power to
power, his authority to call the Legislature or Congress to special
sessions and even to prescribe or limit the object or objects of _______________
legislation that may be taken up in such sessions, etc. Conversely, 26 103 Phil. 1051, 1067.
Congress or an agency or arm thereof — such as the Commission on 27 119 N.W. 408, 411, 417.
86
_______________
25 In re McConaughy, 119 N.W. 408, 417.
85
VOL. 50, MARCH 31, 1973 85 act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69
Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37
N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in
51/326 52
its discretion determine whether it will pass law or submit a proposed particularly those prescribed or imposed by the Constitution —
constitutional amendment to the people. The courts have no judicial control would be set at naught. What is more, the judicial inquiry into such
over such matters, not merely because they involve political questions, but issue and the settlement thereof are the main functions of courts of
because they are matters which the people have by the Constitution justice under the Presidential form of government adopted in our
delegated to the Legislature. The Governor may exercise the powers 1935 Constitution, and the system of checks and balances, one of its
delegated him, free from judicial control, so long as he observes the laws basic predicates. As a consequence, We have neither the authority
act within the limits of the power conferred. His discretionary acts cannot be nor the discretion to decline passing upon said issue, but are under
controllable, not primarily because they are of a politics nature, but because the ineluctable obligation — made particularly more exacting and
the Constitution and laws have placed the particular matter under his peremptory by our oath, as members of the highest Court of the
control. But every officer under constitutional government must act land, to support and defend the Constitution — to settle it. This
accordingly to law and subject its restrictions, and every departure explains why, in Miller v. Johnson,28 it was held that courts have a
therefrom or disregard thereof must subject him to that restraining and “duty, rather than a power,” to determine whether another branch of
controlling power of the people, acting through the agency of the judiciary; the government has “kept within constitutional limits.” Not satisfied
for it must be remembered that the people act through courts, as well as with this postulate, the court went farther and stressed that, if the
through the executive or the Legislature. One department is just as Constitution provides how it may be amended — as it is in our 1935
representative as the other, and the judiciary is the department which is Constitution — “then, unless the manner is followed, the judiciary
charged with the special duty of determining the limitations which the law as the interpreter of that constitution, will declare the amendment
places upon all official action. The recognition of this principle, unknown invalid.”29 In fact, this very Court — speaking through Justice
except in Great Britain and America, is necessary, to “the end that the Laurel, an outstanding authority on Philippine Constitutional Law,
government may be one of laws and not of men” — words which Webster as well as one of the highly respected and foremost leaders of the
said were the greatest contained in any written constitutional document.” Convention that drafted the 1935 Constitution — declared, as early
(Italics supplied.) as July 15, 1936, that “(i)n times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be
and, in an attempt to describe the nature of a political question in forgotten or marred, if not entirely obliterated. In cases of conflict,
terms, it was hoped, understandable to the laymen, We added that the judicial department is the only constitutional organ which can be
“x x x the term “political question” connotes, in legal parlance, what called upon to determine the proper allocation of powers between
it means in ordinary parlance, namely, a question of policy” in the several departments” of the government.30
matters concerning the government of a State, as a body politic. “In
other words, in the language of Corpus Juris Secundum (supra), it
_______________
refers to “those questions which, under the Constitution, are to
28 92 Ky. 589, 18 S.W. 522, 523.
be decided by the people in their sovereign capacity, or in regard to
29 Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609;
which full discretionary authority has been delegated to the
State v. Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
Legislature or executive branch of the government.” It is concerned
30 Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
with issues dependent upon the wisdom, not legality, of a particular
measure.” 88
87

The Solicitor General has invoked Luther v. Borden31 in support

of his stand that the issue under consideration is non-justiciable in
Accordingly, when the grant of power is qualified, conditional or
nature. Neither the factual background of that case nor the action
subject to limitations, the issue on whether or not the prescribed
taken therein by the Federal Supreme Court has any similarity with
qualifications or conditions have been met, or the limitations
or bearing on the cases under consideration.
respected, is justiciable or non-political, the crux of the problem
Luther v. Borden was an action for trespass filed by Luther with
being one of legality or validity of the contested act, not its wisdom.
the Circuit Court of the United States against Borden and others for
Otherwise, said qualifications, conditions or limitations —
having forcibly entered into Luther’s house, in Rhode Island,
53/326 54
sometime in 1842. The defendants who were in the military service military service of the charter government and were to arrest Luther,
of said former colony of England, alleged in their defense that they for engaging in the support of the rebel government — which was
had acted in obedience to the commands of a superior officer, never able to exercise any authority in the state — broke into his
because Luther and others were engaged in a conspiracy to house.
overthrow the government by force and the state had been placed by Meanwhile, the charter government had taken measures to call its
competent authority under Martial Law. Such authority was the own convention to revise the existing form of government.
charter government of Rhode Island at the time of the Declaration of Eventually, a new constitution was drafted by a convention held
Independence, for — unlike other states which adopted a new under the authority of the charter government, and thereafter was
Constitution upon secession from England — Rhode Island retained adopted and ratified by the people. “(T)he times and places at which
its form of government under a British Charter, making only such the votes were to be given, the persons who were to receive and
alterations, by acts of the Legislature, as were necessary to adapt it return them, and the qualifications of the voters having all been
to its subsequent condition as an independent state. It was under this previously authorized and provided for by law passed by the charter
form of government when Rhode Island joined other American government,” the latter formally surrendered all of its powers to the
states in the Declaration of Independence and, by subsequently new government, established under its authority, in May 1843,
ratifying the Constitution of the United States, became a member of which had been in operation uninterruptedly since then.
the Union. In 1843, it adopted a new Constitution. About a year before, or in May 1842, Dorr, at the head of a
Prior thereto, however, many citizens had become dissatisfied military force, had made an unsuccessful attempt to take possession
with the charter government. Memorials addressed by them to the of the state arsenal in Providence, but he was repulsed, and, after an
Legislature having failed to bring about the desired effect, meetings “assemblage of some hundreds of armed men under his command at
were held and associations formed — by those who belonged to this Chepatchet in the June following, which dispersed upon approach of
segment of the population — which eventually resulted in a the troops of the old government, no further effort was made to
convention called for the drafting of a new Constitution to be establish” his government. “x x x until the Constitution of 1843” —
submitted to the people for their adoption or rejection. The adopted under the auspices of the charter government — “went into
convention was not authorized by any law of the existing
90
government. The delegates to such convention framed a new
Constitution which
_______________ Javellana vs. The Executive Secretary
31 12 L. ed. 581 (1849).
89 operation, the charter government continued to assert its authority

and exercise its powers and to enforce obedience throughout the
state x x x.”
VOL. 50, MARCH 31, 1973 89
Having offered to introduce evidence to prove that the
Javellana vs. The Executive Secretary constitution of the rebels had been ratified by the majority of the
people, which the Circuit Court rejected, apart from rendering
was submitted to the people. Upon the return of the votes cast by judgment for the defendants, the plaintiff took the case for review to
them, the convention declared that said Constitution had been the Federal Supreme Court which affirmed the action of the Circuit
adopted and ratified by a majority of the people and became the Court, stating:
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number
“It is worthy of remark, however, when we are referring to the authority
of citizens of the state, contested, however, the validity of said
of State decisions, that the trial of Thomas W. Dorr took place after the
proceedings. This notwithstanding, one Thomas W. Dorr, who had
constitution of 1843 went into operation. The judges who decided that case
been elected governor under the new Constitution of the rebels,
held their authority under that constitution and it is admitted on all hands
prepared to assert authority by force of arms, and many citizens
that it was adopted by the people of the State, and is the lawful and
assembled to support him. Thereupon, the charter government
established government. It is the decision, therefore, of a State court, whose
passed an Act declaring the state under Martial Law and adopted
judicial authority to decide upon the constitution and laws of Rhode Island
measures to repel the threatened attack and subdue the rebels. This
is not questioned by either party to this controversy, although the
was the state of affairs when the defendants, who were in the
55/326 56
government under which it acted was framed and adopted under the a political question, whereas the nature of the latter depends upon a
sanction and laws of the charter government. number of factors, one of them being whether the new Constitution
“The point, then, raised here has been already decided by the courts of has been adopted in the manner prescribed in the Constitution in
Rhode Island. The question relates, altogether, to the constitution and force at the time of the purported ratification of the former, which
laws of that State, and the well settled rule in this court is, that the courts of is essentially a justiciable question. There was, in Luther v. Borden,
the United States adopt and follow the decisions of the State courts in a conflict between two (2) rival governments, antagonistic to each
questions which concern merely the constitution and laws of the State. other, which is absent in the present cases. Here, the Government
“Upon what ground could the Circuit Court of the United States which established under the 1935 Constitution is the very same
tried this case have departed from this rule, and disregarded and overruled government whose Executive Department has urged the adoption of
the decisions of the courts of Rhode Island? Undoubtedly the courts of the the new or revised Constitution proposed by the 1971 Constitutional
United States have certain powers under the Constitution and laws of the Convention and now alleges that it has been ratified by the people.
United States which do not belong to the State courts. But the power of In short, the views expressed by the Federal Supreme Court
determining that a State government has been lawfully established, which in Luther v. Borden, decided in 1849, on matters other than those
the courts of the State disown and repudiate, is not one of them. Upon such referring to its power to review decisions of a state court concerning
a question the courts of the United States are bound to follow the decisions the constitution and government of that state, not the Federal
of the State tribunals, and must therefore regard the charter government as Constitution or Government, are manifestly neither
the lawful and established government during the time of this contest.32
92
_______________
32 Luther v. Borden, supra, p. 598. Italics ours. 92 SUPREME COURT REPORTS ANNOTATED
91
controlling, nor even persuasive in the present cases, having as

VOL. 50, MARCH 31, 1973 91
the Federal Supreme Court admitted — no authority whatsoever to
Javellana vs. The Executive Secretary pass upon such matters or to review decisions of said state court
thereon. In fact, referring to that case, the Supreme Court of
Minnessota had the following to say:
It is thus apparent that the context within which the case “Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who
of Luther v. Borden was decided is basically and fundamentally assert that the courts have no power to determine questions of a political
different from that of the cases at bar. To begin with, the case did not character. It is interesting historically, but it has not the slightestapplication
involve a federal question, but one purely municipal in nature. to the case at bar. When carefully analyzed, it appears that it merely
Hence, the Federal Supreme Court was “bound to follow the determines that the federal courts will accept as final and controlling a
decisions of the State tribunals” of Rhode Island upholding the decision of the highest court of a state upon a question of the construction of
constitution adopted under the authority of the charter government. the Constitution of the state. x x x.33
Whatever else was said in that case constitutes, therefore, an obiter
dictum. Besides, no decision analogous to that rendered by the State Baker v. Carr,34 cited by respondents, involved an action to annul
Court of Rhode Island exists in the cases at bar. Secondly, the states a Tennessee statute apportioning the seats in the General Assembly
of the Union have a measure of internal sovereignty upon which the among the counties of the State, upon the theory that the legislation
Federal Government may not encroach, whereas ours is a unitary violated the equal protection clause. A district court dismissed the
form of government, under which our local governments derive their case upon the ground, among others, that the issue was a political
authority from the national government. Again, unlike our 1935 one, but, after a painstaking review of the jurisprudence on the
Constitution, the charter or organic law of Rhode Island matter, the Federal Supreme Court reversed the appealed decision
contained no provision on the manner, procedure or conditions for and held that said issue was justiciable and non-political, inasmuch
its amendment. as: “x x x (d)eciding whether a matter has in any measure been
Then, too, the case of Luther v. Borden hinged more on the committed by the Constitution to another branch of government, or
question of recognition of government, than on recognition whether the action of that branch exceeds whatever authority has
of constitution, and there is a fundamental difference between these been committed, is itself a delicate exercise in constitutional
two (2) types of recognition, the first being generally conceded to be
57/326 58
interpretation, and is a responsibility of this Court as ultimate The Supreme Court of the United States has meaningfully
interpreter of the Constitution x x x.” postulated that “the courts cannot reject as ‘no law suit’ ” —
Similarly, in Powell v. McCormack,35 the same Court, speaking because it allegedly involves a political question — “a bona fide
through then Chief Justice Warren, reversed a decision of the Court controversy as to whether some action denominated
of Appeals of New York affirming that of a Federal District Court, ‘political’ exceeds constitutional authority.”37
dismissing Powell’s action for a declaratory judgment declaring
thereunder that he — whose qualifications were uncontested — had _______________
been unlawfully excluded from the 90th Congress of the U.S. Said 36 In re McConaughy, 119 N.W. 408, 415. Emphasis ours. The observation as to
dismissal the uniformity of authorities on the matter has been reiterated in Winget v. Holm, 244
N.W. 329, 332.
_______________ 37 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d 663, 686, 82 S. Ct. 691.
33 In re McConaughy, supra, p. 416. Italics ours.
94
34 369 U.S. 186, 7 L. ed. 2d. 663, 82 S. Ct. 691 (March 26, 1962).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
93
VOL. 50, MARCH 31, 1973 93

III
Javellana vs. The Executive Secretary Has the proposed new or revised Constitution been ratified
conformably to said Art. XV of the 1935 Constitution?
was predicated upon the ground, inter alia, that the issue was Petitioners in L-36142 maintain the negative view, upon ground:
political, but the Federal Supreme Court held that it was clearly a 1) that the President “is without authority to create the Citizens’
justiciable one. Assemblies” through which, respondents maintain, the proposed
The Supreme Court of Minnessota undertook a careful review of new Constitution has been ratified; 2) that said Assemblies “are
American jurisprudence on the matter. Owing to the lucidity of its without power to approve the proposed Constitution”; 3) that the
appraisal thereof, We append the same to this opinion as Annex A President “is without power to proclaim the ratification by the
thereof. Filipino people of the proposed Constitution”; and 4) that “the
After an, exhaustive analysis of the cases on this subject, the election held (in the Citizens’ Assemblies) to ratify the proposed
Court concluded: Constitution was not a free election, hence null and void.”
Apart from substantially reiterating these grounds support of said
“The authorities are thus practically uniform in holding that whether a negative view, the petitioners in L-36164 contend: 1) that the
constitutional amendment has been properly adopted according to the President “has no power to call a plebiscite for the ratification or
requirements of an existing Constitution is a judicial question. There can be rejection” of the proposed new Constitution or “to appropriate funds
little doubt that the consensus of judicial opinion is to the effect that it is for the holding of the said plebiscite”; 2) that the proposed new or
the absolute duty of the judiciary to determine whether the Constitution has revised Constitution “is vague and incomplete,” as well as “contains
been amended in the manner required by the Constitution, unless a special provisions which are beyond the powers of the 1971 Convention to
tribunal has been created to determine the question; and even then many of enact,” thereby rendering it “unfit for x x x submission the people”;
the courts hold that the tribunal cannot be permitted to illegally amend the 3) that “(t)he period of time between November 1972 when the 1972
organic law. x x x.”36 draft was approved and January 11-15, 1973,” when the Citizens’
Assemblies supposedly ratified said draft, “was too short, worse still,
In the light of the foregoing, and considering that Art. XV of our
there was practically no time for the Citizens’ Assemblies to discuss
1935 Constitution prescribes the method or procedure for its
the merits of the Constitution which the majority of them have not
amendment, it is clear to my mind that the question whether or not
read a which they never knew would be submitted to them
the revised Constitution drafted by the 1971 Constitutional
ratification until they were asked the question — “do you approve of
Convention has been ratified in accordance with said Art. XV is a
the New Constitution?” during the said days of the voting”; and that
justiciable one and non-political in nature, and that it is not only
“(t)here was altogether no freedom discussion and no opportunity to
subject to judicial inquiry, but, also, that it is the Court’s bounden
concentrate on the matter submitted to them when the 1972 draft
duty to decide such question.
59/326 60
was supposedly submitted to the Citizens’ Assemblies for 96 SUPREME COURT REPORTS ANNOTATED
ratification.” Javellana vs. The Executive Secretary
Petitioner in L-36236 added, as arguments in support of the
negative view, that : 1) “(w)ith a government-controlled press, there
although the petitioners in L-36164 question the authority of the
can never be a fair and proper submission of the proposed
1971 Constitutional Convention to incorporate certain provisions
95 into the draft of the new or revised Constitution. The main issue in
these five (5) cases hinges, therefore, on whether or not the last two
(2) requirements have been complied with.
VOL. 50, MARCH 31, 1973 95
2. Has the contested draft of the new or revised Constitution been
Javellana vs. The Executive Secretary submitted to the people for their ratification conformably to Art. XV
of the Constitution?
Constitution to the people”; and 2) Proclamation No. 1102 is null In this connection, other provisions of the 1935 Constitution
and void “(i)nasmuch as the ratification process” prescribed “in the concerning “elections” must, also, be taken into account, namely,
1935 Constitution was not followed.” section I of Art. V and Art. X of said Constitution. The former reads:
Besides adopting substantially some of the grounds relied upon
“Section 1. Suffrage may be exercised by male citizens of the Philippines
by the petitioners in the above-mentioned cases, the petitioners in L-
not otherwise disqualified by law, who are twenty-one years of age or over
36283 argue that “(t)he creation of the Citizens’ Assemblies as the
and are able to read and write, and who shall have resided in the Philippines
vehicle for the ratification of the Constitution was a deception upon
for one year and in the municipality wherein they propose to vote for at least
the people since the President announced the postponement of the
six months preceding the election. The National Assembly shall extend the
January 15, 1973 plebiscite to either February 19 or March 5,
right of suffrage to women, if in a plebiscite which shall be held for that
1973.”38
purpose within two years after the adoption of this Constitution, not less
The reasons adduced by the petitioners in L-36165 in favor of the
than three hundred thousand women possessing the necessary qualifications
negative view have already been set forth earlier in this opinion.
shall vote affirmatively on the question.”
Hence, it is unnecessary to reproduce them here. So it is, with
respect to the positions taken in L-36165 by counsel for therein Sections 1 and 2 of Art. X of the Constitution ordain in part:
respondents Gil J. Puyat and Jose Roy — although more will be said
later about them — and by the Solicitor General, on behalf of the “Section 1. There shall be an independent Commission on Elections
other respondents in that case and the respondents in the other cases. composed of a Chairman and two other Members to be appointed by the
1. What is the procedure prescribed by the 1935 Constitution for President with the consent of the Commission on Appointments, who shall
its amendment? hold office for a term of nine years and may not be reappointed. ...
Under section 1 of Art. XV of said Constitution, three (3) steps “xxx xxx xxx
are essential, namely: “Sec. 2. The Commission on Elections shall have exclusive charge of the
1. That the amendments to the Constitution be proposed either by enforcement and administration of all laws relative to the conduct of
Congress or by a convention called for that purpose, “by a vote of elections and shall exercise all other functions which may be conferred upon
three-fourths of all the Members of the Senate and the House of it by law. It shall decide, save those involving the right to vote, all
Representatives voting separately,” but “in joint session assembled”; administrative questions, affecting elections, including the determination of
2. That such amendments be “submitted to the people for their the number and location of polling places, and the appointment of election
ratification” at an “election”; and inspectors and of other election officials. All law enforcement agencies and
3. That such amendments be “approved by a majority of the votes
97
cast” in said election.
Compliance with the first requirement is virtually conceded,
VOL. 50, MARCH 31, 1973 97
38 See p. 5 of the Petition.
instrumentalities of the Government, when so required by the Commission,
96 shall act as its deputies for the purpose of insuring fee, orderly, and honest
elections. The decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
61/326 62
“xxx xxx xxx”39 Convention, and that, by way of compromise, it was eventually
agreed to include, in section 1 of Art. V of the Constitution, the
second sentence thereof imposing upon the National Assembly
a. Who may vote in a plebiscite under Art. V of the Constitution? established by the original Constitution — instead of the bicameral
Petitioners maintain that section 1 of Art. V of the Constitution Congress subsequently created by amendment said Constitution —
is a limitation upon the exercise of the right of suffrage. They claim the duty to “extend the right of suffrage women, if in a plebiscite to,
that no other persons than “citizens of the Philippines not otherwise be held for that purpose within two years after the adoption of this
disqualified by law, who are twenty-one years of age or over and are Constitution, not less than three hundred thousand women
able to read and write, and who shall have resided in the Philippines possessing the necessary qualifications shall vote affirmatively on
for one year and in the municipality wherein they propose to vote for the question.”41
at least six months preceding the election,” may exercise the right of The third recommendation on “compulsory” voting was, also
suffrage in the Philippines. Upon the other hand, the Solicitor debated upon rather extensively, after which it was rejected by the
General contends that said provision merely guarantees the right of Convention.42 This accounts, in my opinion, for the permissive
suffrage to persons possessing the aforementioned qualifications and language used in the first sentence of said Art. V. Despite some
none of the disqualifications, prescribed by law, and that said right debates on the age qualification — amendment having been
may be vested by competent authorities in persons lacking some or proposed to reduce the same to 18 or 20, which were rejected, and
all of the aforementioned qualifications, and possessing some of the the residence qualification, as well as the disqualifications to the
aforesaid disqualifications. In support of this view, he invokes the exercise of the right of suffrage — the second
permissive nature of the language — “(s)uffrage may be exercised” recommendation limiting the right of suffrage to those who could
— used in section 1 of Art. V of the Constitution, and the provisions “read and write” was — in the language of Dr. Jose M. Aruego, one
of the Revised Barrio Charter, Republic Act No. 3590, particularly of the Delegates to said Convention — “readily approved in the
sections 4 and 6 thereof, providing that citizens of the Philippines Convention without any dissenting vote,” although there was some
“eighteen years of age or over,” who are registered in the list of debate on whether the Fundamental Law should specify the
barrio assembly members, shall be members thereof and may language or dialect that the voter could
participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General’s theory. Art. V of the _______________
Constitution declares who may exercise the right of suffrage, so that 40 The Framing of the Philippine Constitution, by Aruego, Vol. I, p. 215.
those lacking the qualifications therein prescribed may not exercise 41 The Framing of the Philippine Constitution, by Aruego, Vol. I, pp.
such right. This view is borne out by the records of 215, 221, 227-228.
42 Ibid., pp. 222-224.
_______________
99
39 Italics ours.
98 VOL. 50, MARCH 31, 1973 99

Javellana vs. The Executive Secretary read and write, which was decided in the negative.43
What is relevant to the issue before Us is the fact that the
the Constitutional Convention that drafted the 1935 Constitution. constitutional provision under consideration was meant to be and is
Indeed, section 1 of Art. V of the 1935 Constitution was largely a grant or conferment of a right to persons possessing the
based on the report of the committee on suffrage of the Convention qualifications and none of the disqualifications therein mentioned,
that drafted said Constitution which report was, in turn, “strongly which in turn, constitute a limitation of or restriction to said right,
influenced by the election laws then in force in the Philippines and cannot, accordingly, be dispensed with, except by constitutional
x x x.”40 Said committee had recommended: 1) “That the right of amendment. Obviously, every such constitutional grant or
suffrage should exercised only by male citizens of the Philippines.” conferment of a right is necessarily a negation of the authority of
2) “That should be limited to those who could read and write.” 3) Congress or of any other branch of the Government to deny said
“That the duty to vote should be made obligatory.” It appears that right to the subject of the grant — and, in this sense only, may the
the first recommendation was discussed extensively in the same partake of the nature of a guarantee. But, this does not imply
63/326 64
not even remotely, that the Fundamental Law allows Congress or “(a) Those who, under the laws in force in the Philippine Islands upon the twenty-
anybody else to vest in those lacking the qualifications and having eighth day of August, nineteen hundred and sixteen, were legal voters and had
the disqualifications mentioned in the Constitution the right of exercised the right of suffrage.
suffrage. “(b) Those who own real property to the value of five hundred pesos, declared in
At this juncture, it is noteworthy that the committee on suffrage their name for taxation purposes for a period not less than one year prior to the date of
responsible for the adoption of section 1 of Art. V of the the election, or who annually pay thirty pesos or more of the established taxes.
Constitution was “strongly influenced by the election laws then in “(c) Those who are able to read and write either Spanish, English, or a native
force in the Philippines.” Our first Election Law was Act 1582, language.
passed on January 9, 1907, which was partly amended by Acts 1669, “SEC. 432. Disqualifications. — The following persons shall be disqualified from
1709, 1726 and 1768, and incorporated into the Administrative Code voting:
of 1916 — Act 2657 — as chapter 20 thereof, and then in the “(a) Any person who, since the thirteenth day of August, eighteen hundred and
Administrative Code of 1917 — Act 2711 — as chapter 18 thereof, ninety-eight, has been sentenced by final judgment to suffer not less than eighteen
which, in turn, was amended by Act 3387, approved on December 3, months of imprisonment, such disability not having been removed by plenary pardon.
1927. Sections 431 and 432 of said Code of 1917, prescribing, “(b) Any person who has violated an oath of allegiance taken by him to the United
respectively, the qualifications for and disqualifications from voting, States.
are quoted below.44 In all of these legislative acts, the provisions “(c) Insane or feeble-minded persons.
concerning the qualifications of voters partook of the nature of “(d) Deaf-mutes who cannot read and write.
a grant or recognition of the right of suffrage, and, hence, of a “(e) Electors registered under subsection (c) of the next preceding section who,
after failing to make a sworn statement to the satisfaction of the board of inspectors at
_______________ any of its two meetings for registration and revision, that they are incapacitated
43 Id., pp. 224-227. preparing their ballots due to permanent physical disability, present themselves at the
44 SEC. 431. Qualifications prescribed for voters. — Every male person who is hour of voting as incapacitated, irrespective whether such incapacity be real or
not a citizen or subject of a foreign power, twenty-one years of age or over, who shall feigned.”
have been a resident of the Philippines for one year and of the municipality in which
101
he shall offer to vote for six months next preceding the day of voting is entitled to
vote in all elections if comprised within either of the
VOL. 50, MARCH 31, 1973 101
100

twenty-one (21) years to eighteen (18) years, which, however, did
Javellana vs. The Executive Secretary not materialize on account of the decision of this Court in Tolentino
v. Commission on Elections,45 granting the writs, of prohibition and
denial thereof to those who lacked the requisite qualification and injunction therein applied for, upon the ground that, under the
possessed any of the statutory disqualifications. In short, the history Constitution, all of the amendments adopted by the Convention
of section 1, Art. V of the Constitution, shows beyond doubt than should be submitted in “an election” or a single election, not
the same conferred — not guaranteed — the authority to persons separately or in several or distinct elections, and that the proposed
having the qualifications prescribed therein and none of amendment sought to be submitted to a plebiscite was not even a
disqualifications to be specified in ordinary laws and, necessary complete amendment, but a “partial amendment” of said section
implication, denied such right to those lacking any said 1, which could be amended further, after its ratification, had the
qualifications, or having any of the aforementioned disqualifications. same taken place, so that the aforementioned partial amendment
This view is further bolstered by the fact that the 1971 was, for legal purposes, no more than a provisional or
Constitutional Convention sought the submission to a plebiscite of a temporary amendment. Said partial amendment was predicated upon
“partial amendment” to said section 1 of Art. V of the 1935 the generally accepted contemporary construction that, under the
Constitution, by reducing the voting age from 1935 Constitution, persons below twenty-one (21) years of age
could not exercise the right of suffrage, without a previous
amendment of the Constitution.
_______________
Upon the other hand, the question, whether 18-year-old members
following three classes:
of barrio assemblies may vote in barrio assembly plebiscites is, to
65/326 66
say the least, a debatable one. Indeed, there seems to be a conflict It is similarly inconceivable that those who drafted the 1935
between the last paragraph of said section 6 of Rep. Act No. Constitution intended section 1 of Art. V thereof to apply only to
3590,46 pursuant to which the “majority vote of all the barrio elections of public officers, not to plebiscites for the ratification of
assembly members” (which include all barrio residents 18 years of amendments to the Fundamental Law or revision thereof, or of an
age or over, duly registered in the list of barrio assembly members) entirely new Constitution, and permit the legislature to require lesser
is necessary for the approval, in an assembly plebiscite, of “any qualifications for such ratification, notwithstanding the fact that the
budgetary, supplemental appropriations or special tax ordinances,” object thereof much more important — if not fundamental, such as
whereas, according to the paragraph preceding the penultimate one the basic changes introduced in the draft of the revised Constitution
of said section,47 ”(a)ll duly registered barrio assembly adopted by the 1971 Constitutional Convention, which a intended to
be in force permanently, or, at least, for many
_______________
45 L-34150, October 16 and November 4, 1971. _______________
46 “For taking action on any of the above enumerated measures, majority vote of 48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W.
all the barrio assembly members registered in the list of the barrio secretary is 1071; Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v. Marcus, 160 Wis.
necessary.” 354, 152 N.W. 419.
47 “All duly registered barrio assembly members qualified to vote may vote in the
103
plebiscite. Voting procedures may be made either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers. The board of election
tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in VOL. 50, MARCH 31, 1973 103
case of vacancies in this body, the barrio council may fill the same.”
102
decades, and to affect the way of life of the nation — and,
102 SUPREME COURT REPORTS ANNOTATED accordingly, demands greater experience and maturity on the part of
the electorate than that required for the election of public
Javellana vs. The Executive Secretary officers,49 whose average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21
members qualified to vote” — who, pursuant to section 10 of the years, regardless of whether or not they possessed the other
same Act, must be citizens “of the Philippines, twenty-one years of qualifications laid down in both the Constitution and the present
age or over, able to read and write,” and residents the barrio “during Election Code,50 and of whether or not they are disqualified under
the six months immediately preceding election, duly registered in the provisions of said Constitution and Code,51 or those of Republic
the list of voters” and “ otherwise disqualified x x x” — just like the Act No. 3590,52 have participated
provisions of present and past election codes of the Philippines and
Art. V of the 1935 Constitution — “may vote in the plebiscite.” _______________
I believe, however, that the apparent conflict should resolved in 49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that
favor of the 21-year-old members of the assembly, not only because “when a state constitution enumerates and fixes the qualifications of those who may
this interpretation is in accord with Art. V the Constitution, but, also, exercise the right of suffrage, the legislature cannot take from nor add to said
because provisions of a Constitution — particularly of a written and qualifications unless the power to do so is conferred upon it by the constitution itself.”
rigid one, like ours generally accorded a mandatory status — unless Since suffrage, according to Webster, is a voice given not only in the choice of a
the intention to the contrary is manifest, which is not so as regards man for an office or trust, but, also, in deciding a controverted question, it follows,
said Art. V — for otherwise they would not have been considered considering the said ruling in Alcantara, that the constitutional qualifications for
sufficiently important to be included in the Fundamental Law of the voters apply equally to voters in elections to public office and to voters in a plebiscite.
land.48 Besides, it would be illogical, if not absurd, believe that Similarly, the Revised Election Code provides in its section 2 that all elections of
Republic Act No. 3590 requires, for the most important measures for public officers by the people and all votings in connection with plebiscites shall be
which it demands — in addition to favorable action of the barrio conducted in conformity with the provisions of said Code.
council — the approval of barrio assembly through aplebiscite, 50 Republic Act No. 6388, section 101 of which, in part, provides:
lesser qualifications than those prescribed in dealing with ordinary “SEC. 101. Qualifications prescribed for a voter.—Every citizen of the
measures for which such plebiscite need not be held. Philippines, not otherwise disqualified by law, twenty-one years of age or over, able
67/326 68
to read and write, who shall have resided in the Philippines for one year and in the 52 “SEC. 10. x x x
city, municipality or municipal district wherein he proposes to vote for at least six “The following persons shall not be qualified to vote:
months immediately preceding the election, may vote at any election. “a. Any person who has been sentenced by final judgment to suffer one year or
“xxx xxx xxx.” more of imprisonment, within two years after service of his sentence;
51 “SEC. 102. Disqualifications.—The following persons shall not be qualified to “b. Any person who has violated his allegiance to the Republic of the Philippines;
vote: and
“(a) Any person who has been sentenced by final judgment to suffer an “c. Insane or feeble-minded persons.”
imprisonment of not less than one year, such disability not having been removed by
plenary pardon: Provided, however, That any person disqualified to vote under this
paragraph shall
105
104
VOL. 50, MARCH 31, 1973 105
104 SUPREME COURT REPORTS ANNOTATED Javellana vs. The Executive Secretary
Art. V of the Constitution were allowed to vote in said Assemblies.
and voted in the Citizens’ Assemblies that have allegedly ratified the And, since there is no means by which the invalid votes of those less
new or revised Constitution drafted by the 1971 Constitutional than 21 years of age can be separated or segregated from those of
Convention. the qualified voters, the proceedings in the Citizens’ Assemblies
In fact, according to the latest official data, the total number of must be considered null and void.53
registered voters 21 years of age or over in the entire Philippines, It has been held that “(t)he power to reject an entire poll
available in January 1973, was less than 12 million. Yet, x x x should be exercised x x x in a case where it is impossible to
Proclamation No. 1102 states that 14,976,56 “members of all the ascertain with reasonable certainty the true vote,” as where “it
Barangays (Citizens Assemblies) voted for the adoption of the is impossible to separate the legal votes from the illegal or spurious
proposed Constitution, as against x x x 743,869 who voted for its x x x.”54
rejection,” whereas, on the question whether or not the people still In Usman v. Commission on Elections, et al.,55 We held:
wanted a plebiscite to be called to ratify the new Constitution, “x x x “Several circumstances, defying exact description and dependent mainly
14,298,814 answered that there was no need for a plebiscite and that on the factual milieu of the particular controversy, have the effect of
the vote of the Barangays (Citizens Assemblies) should be destroying the integrity and authenticity of disputed election returns and of
considered as a vote in a plebiscite.” In other words, it is conceded avoiding their prima facie value and character. If satisfactorily proven,
that the number of people who allegedly voted at the Citizens’ although in a summary proceeding, such circumstances as alleged by the
Assemblies for exceeded the number of registered voters under the affected or interested parties, stamp the election returns with the indelible
Election Code in force in January 1973. mark of falsity and irregularity, and, consequently, of unreliability, and
It is thus clear that the proceedings held in such Citizens’ justify their exclusion from the canvass.”
Assemblies — and We have more to say on this point in subsequent
pages — were fundamentally irregular, in that persons lacking the Then, too, the 1935 Constitution requires “a majority of the votes
qualifications prescribed in section 1 of cast” for a proposed amendment to the Fundamental Law to be
“valid” as part thereof, and the term “votes cast” has a well-settled
_______________ meaning.

automatically reacquire the right to vote upon expiration of ten years after service of “The term ‘votes cast’ x x x was held in Smith v. Renville County
sentence unless during such period, he shall have been sentenced by final judgment to Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
suffer an imprisonment of not less than one year. equivalent of ‘ballots cast.’ ”56“The word ‘cast’ is defined as
“(b) Any person who has been adjudged by final judgment by competent court of ‘to deposit formally or officially.’ ”57
having violated his allegiance to the Republic of the Philippines.
“(c) Insane or feeble-minded persons. _______________
“(d) Persons who cannot prepare their ballots themselves.”
69/326 70
53 20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena v. _______________
Crescini, 39 Phil. 258. 58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.
54 Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau,
64 S.W. 2d. 168. Italics ours.
107
55 L-33325 and L-34043, December 29, 1971.

56 Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours. VOL. 50, MARCH 31, 1973 107
57 Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours.

106
the field allocated to either Congress or courts of justice. Said
functions are by their nature essentially executive, for which reason,
the Commission would be under the “control” of the President,
106 SUPREME COURT REPORTS ANNOTATED pursuant to section 10, paragraph (1) of Art. VII of the Constitution,
Javellana vs. The Executive Secretary if Art. X thereof did not explicitly declare that it (the Commission)
is an “independent” body. In other words, in amending the original
1935 Constitution, by inserting therein said Art. X, on the
“It seems to us that a vote is cast when a ballot is deposited indicating a Commission on Elections, the purpose was to make said
‘choice.’ x x x The word “cast” means “deposit (a ballot) formally or Commission independent principally of the Chief Executive.
officially x x x.’ And the reason therefor is, also, obvious. Prior to the creation of
“x x x In simple words, we would define a ‘vote cast’ as the exercise on the Commission on Elections as a constitutional organ, election laws
a ballot of the choice of the voter on the measure proposed.”58 in the Philippines were enforced by the then Department of the
Interior, through its Executive Bureau, one of the offices under the
In short, said Art. XV envisages — with the term “votes cast” — supervision and control of said Department. The same — like other
choices made on ballots — not orally or by raising — by the persons departments of the Executive Branch of the Government — was, in
taking part in plebiscites. This is but natural and logical, for, since turn, under the control of the Chief Executive, before the adoption of
the early years of the American regime, we had adopted the the 1935 Constitution, and had been — until the abolition of said
Australian Ballot System, with its major characteristics, Department, sometime ago — under the control of the President of
namely, uniform official ballots prepared and furnished by the the Philippines, since the effectivity of said Fundamental Law.
Government and secrecy in the voting, with the advantage of Under the provisions thereof, the Executive could so use his power
keeping records that permit judicial inquiry, when necessary, into the of control over the Department of the Interior and its Executive
accuracy of the election returns. And the 1935 Constitution has been Bureau as to place the minority party at such a great, if not decisive,
consistently interpreted in all plebiscites for the ratification rejection disadvantage, as to deprive it, in effect, of the opportunity to defeat
of proposed amendments thereto, from 1935 to 1967. Hence, the political party in power, and, hence, to enable the same to
the viva voce voting in the Citizens’ Assemblies was and is null and perpetuate itself therein. To forestall this possibility, the original
void ab initio. 1935 Constitution was amended by the establishment of the
b. How should the plebiscite be held? (COMELEC supervision Commission on Elections as a constitutional body independent
indispensable; essential requisites) primarily of the President of the Philippines.
Just as essential as compliance with said Art. V of the 19 The independence of the Commission was sought to be
Constitution is that of Art. X thereof, particularly its sections 1 and strengthened by the long term of office of its members — nine (9)
2. Indeed, section 1 provides that “(t)here shall be years, except those first appointed59 — the longest under the
an independent Commission on Elections x x x.” The point to be Constitution, second only to that of the Auditor General60; by
stressed here is the term “independent.” Indeed, why was the term
used?
_______________
In the absence of said constitutional provision as to the
59 Art. X, section 1 of the 1935 Constitution.
independence of the Commission, would it have been depends upon
60 Ten (10) years.
either Congress or the Judiciary? The answer must be the negative,
because the functions of the Commission — “enforcement and 108
administration” of election laws — are neither legislative nor
judicial in nature, and, hence, beyond
71/326 72
108 SUPREME COURT REPORTS ANNOTATED its deputies for the purpose of insuring free, orderly, and honest
Javellana vs. The Executive Secretary elections.” Not satisfied with this, it declares, in effect, that “(t)he
decisions, orders, and ruling of the Commission” shall not be subject
to review, except by the Supreme Court.
providing that they may not be removed from office except by
In accordance with the letter and spirit of said Art. X of the
impeachment, placing them, in this respect, on the same plane as the
Constitution, Rep. Act No. 6388, otherwise known as the Election
President, the Vice-President, the Justices of the Supreme Court and
Code of 1971, implements the constitutional powers of the
the Auditor General; that they may not be reappointed; that their
Commission on Elections and grants additional powers thereto,
salaries, “shall be neither increased nor diminished during their term
some of which are enumerated in sections 5 and 6 of said Act,
of office”; that the decisions the Commission “shall be subject to
quoted below.64 Moreover, said Act contains, inter alia, detailed
review by the Supreme Court” only61; that “(n)o pardon, parole, or
provisions regulating contributions and other
suspension sentence for the violation of any election law may be
granted without the favorable recommendation of the
_______________
Commission”62; and, that its chairman and members “shall not,
64 “SEC. 5. Organization of the Commission on Elections.—The Commission
during the continuance in office, engage in the practice of any
shall adopt its own rules of procedure. Two members of the Commission shall
profession or intervene, directly or indirectly, in the management or
constitute a quorum. The concurrence of two members shall be necessary for the
control of any private enterprise which in anyway may affected by
pronouncement or issuance of a decision, order or ruling.
the functions of their office; nor shall they, directly or indirectly, be
“The Commission shall have an executive and such other subordinate officers and
financially interested in any contract with the Government or any
employees as may be necessary for the efficient performance of its functions and
subdivision or instrumentality thereof.”63 Thus, the framers of the
duties, all of whom shall be appointed by the Commission in accordance with the
amendment to the original Constitution of 1935 endeavored to do
Civil Service Law and rules.
everything possible protect and insure the independence of each
“The executive officer of the Commission, under the direction of the Chairman,
member of the Commission.
shall, have charge of the administrative business of the Commission, shall have the
With respect to the functions thereof as a body, section 2 of said
power to administer oaths in connection with all matters involving the business of the
Art. X ordains that “(t)he Commission on Elections shall
Commission, and shall perform such, other duties as may he required of him by the
have exclusive charge of the enforcement and administration all laws
Commission.
relative to the conduct of elections,” apart from such other
“SEC. 6. Power of the Commission to Investigate and to Hear Controversy and
“functions which may be conferred upon it by law.” It further
Issue Subpoena.—The Commission or any of the members thereof shall, in
provides that the Commission “shall decide, save those involving the
compliance with the requirement of due process, have the power to summon the
right to vote, all administrative question affecting elections,
parties to a controversy pending before it, issue subpoenae and subpoenae duces
including the determination of the number and location of polling
tecum and otherwise take testimony in any investigation or hearing pending before it,
places, and the appointment of election inspectors and of other
and delegate such power to any officer of the Commission who shall be a member of
election officials.” And, to forests possible conflicts or frictions
the Philippine Bar. In case of failure of a witness to attend, the Commission, upon
between the Commission, on one hand, and the other offices or
proof of service of the subpoenae to said witness, may issue a warrant to arrest the
agencies of the executive department, on the other, said section 2
witness land bring him before the Commission or officer before whom his attendance
postulates that “(a)ll law enforcement agencies and instrumentalities
is required. The Commission shall have the power to punish contempts provided for
of the Government, when so required by the Commission, shall act
in the Rules of Court under the same
as
110
_______________
61 Art. X, section 2 of the 1935 Constitution.
62 Ibid.
63 Art. X, section 3 of the 1935 Constitution. Javellana vs. The Executive Secretary
109
(corrupt) practices; the establishment of election precincts; the
designation and arrangement of polling places, including voting
VOL. 50, MARCH 31, 1973 109 booths, to protect the secrecy of the ballot; formation of lists of
Javellana vs. The Executive Secretary voters, the identification and registration of voters, the proceedings
therefor, as well as for the inclusion in, or exclusion or cancellation
73/326 74
from said list and the publication thereof; the establishment of thereto, it was held that the “election officers” involved “cannot be
municipal, provincial and files of registered voters; the composition too strongly condemned” therefor and that if they “could legally
and appointment of board of election inspectors; the particulars of dispense with such requirement ... they could with equal propriety
the official ballots to be used and the precautions to be taken to dispense with all of them, including the one that the vote shall be by
insure authenticity thereof; the procedure for the casting of votes; secret ballot, or even by ballot at all x x x.”
the counting of votes by boards of inspectors; the rules for the Moreover, upon the formal presentation to the Executive of the
appreciation of ballots and the preparation and disposition of proposed Constitution drafted by the 1971 Constitutional
election returns; the constitution and operation of municipal, Convention, or on December 1, 1972, Presidential Decree No. 73
provincials and national boards of canvassers; the presentation of the (on the validity of which — which was contested in the plebiscite
political parties and/or their candidates in each election precinct; the cases, as well as in the 1972 habeas corpus cases66 — We need not,
proclamation of the results, including, in the case of election of in the case of bar, express any opinion) was issued, calling a
public officers, election contests; and the jurisdiction of courts of plebiscite, to be held on January 15, 1973, at which the proposed
justice in cases of violation of the provisions of said Election Code Constitution would be submitted to the people for ratification or
and the penalties for such violations. rejection; directing the publication of said proposed Constitution;
Few laws may be found with such meticulous and elaborate set and declaring, inter alia, that “(t)he provision of the Election Code
of provisions aimed at “insuring free, orderly, and honest election,” of 1971, insofar as they are not inconsistent” with said decree —
as envisaged in section 2 of Art. X of the Constitution. Yet, none of excepting those “regarding right and obligations of political parties
the foregoing constitutional and statutory provisions was followed and candidates” — “shall apply to the conduct of the plebiscite.”
by the so-called Barangays or Citizens’ Assemblies. And no reasons Indeed, section 2 of said Election Code of 1971 provides that “(a)ll
have been given, or elections of public officers except barrio officials and
plebiscites shall be
_______________
controversy submitted to the Commission shall after compliance with the _______________
requirements of due process be heard and decided by it within thirty days after 65 64 S.W. 2d. 168.
submission of the case. 66 L-35538, Roses, et al. v. Secretary of National Defense, et al.; L-35539, Diokno
“The Commission may, when it so requires, deputized any member of any national v. Hon. Enrile, et al.; L-35540, Soliven, et al. v. Secretary of National Defense, et al.;
or local law enforcement agency and/or instrumentality of the government to execute L-35546, Aquino, Jr., et al. v. Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et
under its direct and immediate supervision any of its final decisions, orders, al.; L-35567 Doronila, et al. v. Secretary of National Defense, et al.; L-35573, Randon
instructions or rulings. v. Hon. Enrile, et al.
“Any decision, order or ruling of the Commission on election controversies may
112
be reviewed by the Supreme Court by writ of a certiorari in accordance with the
Rules of Court or such applicable laws as may enacted.
“Any violation of any final executory decision, order or ruling of the Commission 112 SUPREME COURT REPORTS ANNOTATED
shall constitute contempt thereof.”
111
conducted in the manner provided by this Code.” General Order No.
VOL. 50, MARCH 31, 1973 111 20, dated January 7, 1973, postponing until further notice, “the
plebiscite scheduled to be held on January 15, 1973,” said nothing
Javellana vs. The Executive Secretary about the procedure to be followed in plebiscite to take place at such
notice, and no other order or decree has been brought to Our
even sought to be given therefor. In many, if not most, instances, the attention, expressly or impliedly repealing the provisions of
election were held a viva voce, thus depriving the electorate of the Presidential Decree 73, insofar as said procedure is concerned.
right to vote secretly — one of the most, fundamental and critical Upon the other hand, said General Order No. 20 expressly
features of our election laws from time immemorial — particularly suspended “the provisions of Section 3 of Presidential Decree No.
at a time when the same was of utmost importance, owing to 73 insofar as they allow free public discussion of proposed
the existence of Martial Law. Constitution x x x temporarily suspending effects of Proclamation
In Glen v. Gnau,65 involving the casting of many votes, openly, No. 1081 for the purposes of free open debate on the proposed
without complying with the requirements of the law pertinent Constitution x x x.” This specific mention of the portions of the
75/326 76
decrees or orders or instructions suspended by General Order No. 20 in-Chief of all Armed Forces of the Philippines, do hereby declare as part of the law
necessarily implies that all other portions of said decrees, orders or of the land the following.
instructions — and, hence, the provisions of Presidential Decree No. “1. The present barangays (citizens assemblies) are created under Presidential
73 outlining the procedure to be followed in the plebiscite for Decree No. 86 dated December 31, 1972, shall constitute the base for citizen
ratification or rejection of the proposed Constitution — remained in participation in governmental affairs and their collective views shall be considered in
force, assuming that said Decree is valid. the formulation of national policies or programs and, wherever practicable, shall be
It is claimed that by virtue of Presidential Decree No. 86-A — translated into concrete and specific decision;
the text of which is quoted below67 — the Executive declared, “2. Such barangays (citizens assemblies) shall consider vital national issues now
confronting the country, like the holding of the plebiscite on the new Constitution, the
_______________ continuation of martial rule, the convening of Congress on January 22, 1973, and the
67 “PRESIDENTIAL DECREE NO. 86-A holding of elections in November 1973, and others in the future, which shall serve as
“STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS guide or basis for action or decision by the national government;
(CITIZENS ASSEMBLIES) “3. The barangays (citizens assemblies) shall conduct between January 10 and 15,
“WHEREAS, on the basis of preliminary and initial reports from the field as 1973, a referendum on important national issues, including those specified in
gathered from barangays (citizens assemblies) have so far been established, the paragraph 2 hereof, and submit the results thereof to the Department of Local
people would like to decide themselves questions or issues, both local and national, Governments and Community Development immediately thereafter, pursuant to the
affecting their day to day lives and their future. express will of the people as reflected in the reports gathered from the many
“WHEREAS, the barangays (citizens assemblies) would like themselves to be the thousands of barangays (citizens assemblies) throughout the country.
vehicle for expressing the views of the people on important national issues; “4. This Decree shall take effect immediately.
“WHEREAS, such barangays (citizens assemblies) desire that they be given legal “Done in the City of Manila, this 5th day of January, in the year of Our Lord,
status and due recognition as constituting the genuine, legitimate and valid expression nineteen hundred and seventy-three.” (Italics ours.)
of the popular will; and

114
“WHEREAS, the people would like the citizens assemblies to
113 114 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 113
Javellana vs. The Executive Secretary those specified in paragraph 2 hereof, and submit the results thereof
to the Department of Local Governments and Community
inter alia, that the collective views expressed in the Citizens’ Development immediately thereafter, x x x.” As in Presidential
Assemblies “shall be considered in the formulation of national Decree No. 86, this Decree No. 86-A does not and cannot exclude
policies or programs and, wherever practicable, shall be translated the exercise of the constitutional supervisory power of the
into concrete and specific decision”; that such Citizens’ Assemblies Commission on Elections or its participation in the proceedings in
“shall consider vital national issues x x x like the holding of the said Assemblies, if the same had been intended to constitute the
plebiscite on the new Constitution x x x and others in the future, “election” or Plebiscite required Art. V of the 1935 Constitution.
which shall serve as guide or basis for action or decision by the The provision of Decree No. 86-A directing the immediate
national government”; and that the Citizens’ Assemblies “shall submission of the result thereof to the Department of Local
conduct between January 10 and 15, 1973, a referendum on Governments Community Development is not necessarily
important national issues, including inconsistent with, and must be subordinate to the constitutional
power of the Commission on Elections to exercise its “exclusive
authority over the enforcement and administration of all laws to the
_______________
conduct of elections,” if the proceedings in the Assemblies would
conduct immediately a referendum on certain specified questions such as the
partake of the nature of an “election” or plebiscite for the ratification
ratification of the new Constitution, continuance of martial law, the convening of
or rejection of the proposed Constitution.
Congress on January 22, 1973, and the elections in November 1973 pursuant to the
We are told that Presidential Decree No. 86 was further amended
1935 Constitution.
by Presidential Decree No. 86-B, dated 1973, ordering “that
“NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
important national issues shall from time to time; be referred to the
Philippines, by virtue of the powers vested in me by the Constitution as Commander-
Barangays (Citizens Assemblies) for resolution in accordance with
77/326 78
Presidential Decree No. 86-A dated January 5, 1973 and that the 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9
initial referendum include the matter of ratification of the L.R.A. 170; Bouvier’s Law Dictionary.68
Constitution by the 1971 Constitutional Convention” and that “(t)he
Secretary of the Department of Local Governments and Community _______________
Development shall insure the implementation of this order.” As in 68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Italics ours.
the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested 116
by the 1935 Constitution in the Commission on Elections, even if
the Executive had the authority to repeal Art. X of our Fundamental 116 SUPREME COURT REPORTS ANNOTATED
Law — which he does not possess. Copy of Presidential Decree No.
86-B is appended hereto as Annex B hereof. Javellana vs. The Executive Secretary
The point is that, such of the Barrio Assemblies as were held
took place without the intervention of the Commission on Elections, IV
and without complying with the provisions of the Election Code of Has the proposed Constitution aforementioned been approved by a
1971 or even of those of Presidential Decree majority of the people in Citizens’ Assemblies allegedly
held throughout the Philippines?
115
Respondents maintain the affirmative, relying upon Proclamation
No. 1102, the validity of which is precisely being contested by
VOL. 50, MARCH 31, 1973 115 petitioners herein. Respondents claim that said proclamation is
“conclusive” upon this Court, or is, at least, entitled to full faith and
credence, as an enrolled bill; that the proposed Constitution has
been, in fact, ratified, approved or adopted by the “overwhelming”
No. 73. What is more, they were held under the supervision of the majority of the people; that Art. XV of the 1935 Constitution has
very officers and agencies of the Executive Department sought to be thus been “substantially” complied with; and that the Court refrain
excluded therefrom by Art. X of the 1935 Constitution. Worse still, from passing upon the validity of Proclamation No. 1102, not only
said officers and agencies of the 1935 Constitution would be favored because such question is political in nature, but, also, because should
thereby, owing to the practical indefinite extension of their the Court invalidate the proclamation, the former would, in effect,
respective terms of office in consequence of section 9 of the veto the action of the people in whom sovereignty resides and from
Transitory Provisions, found in Art. XVII of the proposed its power are derived.
Constitution, without any elections therefor. And the procedure The major flaw in this process of rationalization is that it
therein mostly followed is such that there is no reasonable means of assumes, as a fact, the very premise on which it is predicated, and
checking the accuracy of the returns files by the officers who which, moreover, is contested by the petitioners. As the Supreme
conducted said plebiscites. This is another patent violation of Art. of Court of Minnessota has aptly put it —
the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set “x x x every officer under a constitutional government must act
forth in the 1935 Constitution, as amended, to insure the “free, according to law and subject to its restrictions, and every
orderly, and honest” expression of the people’s will, the departure therefrom or disregard thereof must subject him to the restraining
aforementioned violation thereof renders null and void the contested and controlling of the people, acting through the agency of the judiciary; for
proceedings or alleged plebiscite in the Citizens’ Assemblies, it must be remembered that the people act through courts, as well as through
insofar as the same are claimed to have ratified the revised the executive or the Legislature. One department is just as representative as
Constitution proposed by the 1971 Constitutional Convention. “x x x the other, and the judiciary is the department which is charged with the
(a)ll the authorities agree that the legal definition of an election, as special duty of determining the limitations which the law places upon all
well as that which is usually and ordinarily understood by the term, official action. x x x.”
is a choosing or as election by those having a right to participate (in
the selection) of those who shall fill the offices, or of the adoption or Accordingly, the issue boils downs to whether or not the
rejection of any public measure affecting the territory involved. 15 Executive acted within the limits of his authority when he
Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. 117
Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W.
79/326 80
VOL. 50, MARCH 31, 1973 117 President of the National Association or Federation, whereupon Mr.
Javellana vs. The Executive Secretary Cruz, acting in a ceremonial capacity, reported said results (tabulated
by the Department of Governments and Community Development)
to the Chief Executive, who, accordingly, issued Proclamation No.
certified in Proclamation No. 1102 “that the Constitution proposed 1102.
by the nineteen hundred and seventy-one (1971) Constitutional The record shows, however, that Mr. Cruz was not even a
Convention has been ratified by an overwhelming majority of all of member of any barrio council since 1972, so that he could possibly
the votes cast by the members of all the Barangays (Citizens have been a member on January 17, 1973, of a municipal association
Assemblies) throughout the Philippines and has thereby come into of presidents of barrio or ward citizens’ assemblies, much less of a
effect.” Provincial, City or National Association or Federation
In this connection, it is not claimed that the Chief Executive had of Presidents of any such provincial or city associations.
personal knowledge of the data he certified in said proclamation. Secondly, at the conclusion of the hearing of these cases
Moreover, Art. X of the 1935 Constitution was precisely inserted to February 16, 1973, and in the resolution of this Court of same date,
place beyond the Executive the power to supervise or even the Solicitor General was asked to submit, together with his notes on
exercise any authority whatsoever over “all laws relative to the his oral argument, a true copy of aforementioned report of Mr. Cruz
conduct of elections,” and, hence, whether the elections are for the to the President and of “(p)roclamation, decree, instruction, order,
choice or selection of public officers or for the ratification or regulation or circular, if any, creating or directing or authorizing
rejection of any proposed amendment, or revision of the creation, establishment or organization” of said municipal,
Fundamental Law, since the proceedings for the latter are, also, provincial and national associations, but neither a copy of alleged
referred to in said Art. XV as “elections.” report to the President, nor a copy of any “(p)roclamation, decree,
The Solicitor General stated, in his argument before this Court, instruction, order, regulation or circular,” has been submitted to this
that he had been informed that there was in each municipality a Court. In the absence of said report, “(p)roclamation, decree,
municipal association of presidents of the citizens’ assemblies for instruction,” etc., Proclamation No. 1102 is devoid of
each barrio of the municipality; that the president of each such any factual and legal foundation. Hence, the conclusion set forth in
municipal association formed part of a provincial or city association the dispositive portion of said Proclamation No. 1102, to the effect
of presidents of such municipal associations; that the president of that the proposed new or revised Constitution had been ratified by
each one of these provincial or city associations in turn formed part majority of the votes cast by the people, can not possibly have any
of a National Association or Federation of Presidents of such legal effect or value.
Provincial or City Associations; and that one Francisco Cruz from The theory that said proclamation is “conclusive upon Court is
Pasig, Rizal, as President of said National Association or Federation, clearly untenable. If it were, acts of the Executive and those of
reported to the President of the Philippines, in the morning of Congress could not possibly be annulled or invalidated by courts of
January 17, 1973, the total result of the voting in the citizens’ justice. Yet, such is not the case. In fact, even a resolution of
assemblies all over the country from January 10 to January 15, 1973. Congress declaring that a given person has been elected President or
The Solicitor General further intimated that the said municipal Vice-President of the Philippines as
associations had reported the results of the citizens’ assemblies in
their respective municipalities to the corresponding Provincial 119
Association, which, in turn, transmitted the results of the voting in
the to the Department of Local Governments and Community
VOL. 50, MARCH 31, 1973 119
Development, which tabulated the results of the voting in the
citizens’ assemblies throughout the Philippines and then turned them Javellana vs. The Executive Secretary
over to Mr. Francisco Cruz, as President or acting
provided in the Constitution,69 is not conclusive upon the courts.
118
It is no more than prima facie evidence of what is attested to by said
resolution.70 If assailed directly in appropriate proceedings, such as
118 SUPREME COURT REPORTS ANNOTATED an election protest, if and when authorized by law, as it is in the
Javellana vs. The Executive Secretary Philippines, the Court may receive evidence and declare, in
accordance therewith, who was duly elected to the office
involved.71 If prior to the creation of the Presidential Electoral
Tribunal, no such protest could be filed, it was not because the
81/326 82
resolution of Congress declaring who had been elected President or district court found that the amendment had no in fact been adopted,
Vice-President was conclusive upon courts of justice, but because and on this appeal” the Supreme Court was “required to determine
there was no law permitting the filing of such protest and the correctness of that conclusion.”
declaring what court or body would hear and decide the same. So, Referring to the effect of the certification of the State Board of
too, a declaration to the effect that a given amendment to the Canvassers created by the Legislature and of the proclamation made
Constitution or revised or new Constitution has been ratified by a by the Governor based thereon, the Court held: “It will be noted that
majority of the votes cast therefor, may be duly assailed in court this board does no more than tabulate the reports received from the
and be the object of judicial inquiry, in direct proceedings therefor various county board and add up and certify the results. State v.
— such as the cases at bar — and the issue raised therein may and Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It
should be decided in accordance with the evidence presented. is settled law that the decisions of election officers, and canvassing
The case of In re McConaughy72 is squarely in point. “As the boards are not conclusive and that the final decision must rest with
Constitution stood from the organization of the state” — of the courts, unless the law declares that the decisions of the board
Minnessota — “all taxes were required to be raised under the system shall be final” — and there is no such law in the cases at bar. “x x x
known as the ‘general property tax.’ Dissatisfaction with the results The correctness of the conclusion of the state board rests upon the
of this method and the development of more scientific and correctness of the returns made by the county boards and it
satisfactory methods of raising revenue induced is inconceivable that it was intended that this statement of result
should be final and conclusive regardless of the actual facts. The
_______________ proclamation of the Governor adds nothing in the way of
69 Art. VII, section 2, 1935 Constitution. conclusiveness to the legal effect of the action of the canvassing
70 Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. board. Its purpose is to formally notify the people of the state of the
Sathre v. Bryne, 258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith result of the voting as found by the canvassing board. James on
v. Bangham, 76 p 2d. 1022. McKim v. Brast, 117 S.E. 875; Head v. Wood, 107 So. Const. Conv. (4th Ed.) sec. 523.”
854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 232. In Bott v. Wartz,73 the Court reviewed the statement of results of
71 See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. the election made by the canvassing board, in order that the true
2d. 588; State ex rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson results could be judicially determined. And so did
v. State Election Board, 431 P. 2d. 352, Baker v. Conway, 108 So. 18; Cohoon v.
Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott, 83 A. 2d. 762; Doyle v. Ries, _______________
285 N.W. 480; Grossglaus v. Board of Elections of Stark County, 88 N.E. 2d. 245; 73 63 N.J. Law, 289, cited in In re McConaughy, supra.
Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v. Gower,
121
62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W. 1013; Hagan v. Henry, 76 S.W. 2d.
994.
72 106 Minn 392, 119 N.W. 408, 409. VOL. 50, MARCH 31, 1973 121
120 SUPREME COURT REPORTS ANNOTATED the court in Rice v. Palmer.74

Inasmuch as Art. X of the 1935 Constitution places under the
Javellana vs. The Executive Secretary “exclusive” charge of the Commission on Elections, “the
enforcement and administration of all laws relative to the conduct of
the Legislature to submit to the people an amendment to the elections,” independently of the Executive, and there is not even a
Constitution which provided merely that taxes shall be uniform upon certification by the Commission in support of the alleged results of
the same class of subjects. This proposed amendment was submitted the citizens’ assemblies relied upon in Proclamation No.
at the general election held in November, 1906, and in due time it 1102 — apart from the fact that on January 17, 1973 neither the
was certified by the state canvassing board and proclaimed by the alleged president of the Federation of Provincial or City Barangays
Governor as having been legally adopted. Acting upon the nor the Department of Local Governments had certified to the
assumption that the amendment had become a part of the President the alleged result of the citizens’ assemblies all over the
Constitution, the Legislature enacted statutes providing for a State Philippines — it follows necessarily that, from a constitutional and
Tax Commission and a mortgage registry tax, and the latter statute, legal viewpoint, Proclamation No. 1102 is not even prima
upon the same theory, was held constitutional” by said Court. “The
83/326 84
facie evidence of the alleged ratification of the proposed most, of the people did not know that the Citizens’ Assemblies were,
Constitution. at the time they were held, plebiscites for the ratification or rejection
Referring particularly to the cases before Us, it will be noted that, of the proposed Constitution. Hence, in Our decision in the
as pointed out in the discussion of the preceding topic, the new or plebiscite cases, We said, inter alia:
revised Constitution proposed by the 1971 Constitutional
Convention was not ratified in accordance with the provisions of the
1935 Constitution. In fact, it has not even been, ratified in “Meanwhile, or on December 17, 1972, the President had issued an order
accordance with said proposed Constitution, the minimum age temporarily suspending the effects of Proclamation No. 1081, for the
requirement therein for the exercise of the right of suffrage being purpose of free and open debate on the Proposed Constitution. On
eighteen (18) years, apart from the fact that Art. VI of the proposed December 23, the President announced the postponement of the plebiscite
Constitution requires “secret” voting, which was not observed in for the ratification or rejection of the Proposed Constitution. No formal
many, if not most, Citizens’ Assemblies. Besides, both the 1935 action to this effect was taken until January 7, 1973, when General Order
Constitution and the proposed Constitution require a “majority of No. 20 was issued, directing ‘that the plebiscite scheduled to be held on
the votes cast” in an election or plebiscite called for the ratification January 15, 1973, be postponed until further notice.’ Said General Order
of an amendment or revision of the first Constitution or the No. 20, moreover, ‘suspended in the meantime’ the ‘order of December 17,
effectivity of the proposed Constitution, and the phrase “votes cast” 1972, temporarily suspending the effects of Proclamation No. 1081 for
has been construed to mean “votes made in writing not orally, as it purposes of free and open debate on the proposed Constitution.’
was in many Citizens’ Assemblies.75 “In view of these events relative to the postponement of the
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L- aforementioned plebiscite, the Court deemed it fit to refrain, for the time
36165, asserts openly that Art. XV of the Constitution has not been being, from deciding the aforementioned cases, for neither the date nor the
complied with, and since the alleged substantial compliance with the conditions under which said plebiscite would be held were known or
requirements thereof partakes of the announced officially. Then again, Congress was,
123
_______________
74 78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra. VOL. 50, MARCH 31, 1973 123
75 See cases listed on pages 105-106, footnotes 56, 57 and 58.
122
pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No.
73 was that the President does not have the legislative authority to call a
Javellana vs. The Executive Secretary plebiscite and appropriate funds therefor, which Congress unquestionably
could do, particularly in view of the formal postponement of the plebiscite
nature of a defense set up by the other respondents in these cases, by the President — reportedly after consultation with, among others, the
the burden of proving such defense — which, if true, should be leaders of Congress and the Commission on Elections — the Court deemed
within their peculiar knowledge — is clearly on such respondents. it more imperative to defer its final action on these cases.”
Accordingly, if despite the extensive notes and documents submitted
by the parties herein, the members of the Court do not know or are
not prepared to say whether or not the majority of the people or of And, apparently, the parties in said cases entertained the same
those who took part in the Citizens’ Assemblies have assented to the belief, for, on December 23, 1972 — four (4) days after the last
proposed Constitution, the logical step would be to give due course hearing of said cases76 — the President announced
to these cases, require the respondents to file their answers, and the the postponement of the plebiscite scheduled by Presidential Decree
plaintiffs their reply, and, thereafter, to receive the pertinent No. 73 to be held on January 15, 1973, after consultation with the
evidence and then proceed to the determination of the issues raised Commission on Elections and the leaders of Congress, owing to
thereby. Otherwise, we would be placing upon the petitioners the doubts on the sufficiency of the time available to translate the
burden of disproving a defense set up by the respondents, who have proposed Constitution into some local dialects and to comply with
not so far established the truth of such defense. some pre-electoral requirements, as well as to afford the people a
Even more important, and decisive, than the foregoing is the reasonable opportunity to be posted on the contents and implications
circumstance that there is ample reason to believe that many, if not of said transcendental document. On January 7, 1973, General Order
85/326 86
No. 20 was issued formally, postponing said plebiscite “until further Constitution?” One approves “of” the act of another which
notice.” How can said postponement be reconciled with the theory does not need such approval for the effectivity of said act, which the
that the proceedings in the Citizens’ Assemblies scheduled to be first person, however, finds to be good, wise satisfactory. The
held from January 10 to January 15, 1973, were “plebiscites,” in approval of the majority of the votes cast in plebiscite is,
effect, accelerated, according to the theory of the Solicitor General, however, essential for an amendment to the Constitution to be valid
for the ratification of the proposed Constitution? If said Assemblies as part thereof. Thirdly, if the proceedings in the Citizens’
were meant to be the plebiscites or elections envisaged in Art. XV of Assemblies constituted a plebiscite question No. 8 would have been
the Constitution, what, then, was the “plebiscite”postponed by unnecessary and improper, regardless of whether question No. 7
General Order No. 20? Under these circumstances, it was only were answered affirmatively or negatively. If the majority of the
reasonable for the people who attended such assemblies to believe answers to question No. 7 were in the affirmative, the proposed
that the same were not an “election” or plebiscite for the ratification Constitution would have become effective and no other
or adoption of said proposed Constitution.
125
And, this belief is further bolstered up by the questions
propounded in the Citizens’ Assemblies, namely:
VOL. 50, MARCH 31, 1973 125
“[1] Do you like the New Society? Javellana vs. The Executive Secretary
_______________ plebiscite could be held thereafter in connection therewith, even if

76 On December 19, 1972. the majority of the answers to question No. 8 were, also, in the
affirmative. If the majority of the answers to question No. 7 were in
124
the negative, neither may another plebiscite be held, even if the
majority of the answers to question No. 8 were in the affirmative. In
124 SUPREME COURT REPORTS ANNOTATED either case, not more than one plebiscite could be held for the
Javellana vs. The Executive Secretary ratification or rejection of the proposed Constitution. In short, the
insertion of said two (2) questions — apart from the other questions
adverted to above — indicates strongly that the proceedings therein
“[2] Do you like the reforms under martial law? did not partake of the nature of a plebiscite or election for the
“[3] Do you like Congress again to hold sessions? ratification or rejection of the proposed Constitution.
“[4] Do you like the plebiscite to be held later? Indeed, I can not, in good conscience, declare that the proposed
“[5] Do you like the way President Marcos is running the affairs of the Constitution has been approved or adopted by the people in the
government? [Bulletin Today, January 10, 1973; emphasis an additional citizens’ assemblies all over the Philippines, when it is, to my mind,
question.] a matter of judicial knowledge that there have been no such citizens’
“[6] Do you approve of the citizens assemblies as the base of popular assemblies in many parts of Manila and suburbs, not to say, also, in
government to decide issues of national interests? other parts of the Philippines. In a letter of Governor Efren B.
“[7] Do you approve of the new Constitution? Pascual of Bataan, dated January 15, 1973, to the Chief Executive,
“[8] Do you want a plebiscite to be called to ratify the new Constitution? the former reported:
“[9] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
“x x x This report includes a resumee (sic) of the activities we undertook
“[10] If the elections would not be held, when do you want the next
in effecting the referendum on the eleven questions you wanted our
elections to be called?
people consulted on and the Summary of Results thereof for each
“[11] Do you want martial law to continue?” [Bulletin Today, January
municipality and for the whole province.
11, 1973]
“xxx xxx xxx
“x x x Our initial plans and preparations, however, dealt only on the
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not original five questions. Consequently, when we received an instruction on
proper in a plebiscite for the ratification of a proposed Constitution January 10 to change the questions, we urgently suspended all scheduled
or of a proposed amendment thereto. Secondly, neither is the Citizens Assembly meetings on that day and called all Mayors, Chiefs of
language of question No. 7 — “Do you approve the new
87/326 88
Offices and other government officials to another conference to discuss with revised Constitution for the latter does not entail the formulation of
them the new set of guidelines and materials to be used. a policy of the Government, but the making of decision by the
“On January 11, x x x another instruction from the top was received to people on the new way of life, as a nation, they
include the original five questions among those to be discussed and asked in
the Citizens’ Assembly meetings. With this latest order, we again had to 127
make modifications in our instructions to all those managing and

supervising the holding of the Citizens’ Assembly meetings throughout the VOL. 50, MARCH 31, 1973 127
province. x x x Aside from the
126
wish to have, once the proposed Constitution shall have been
126 SUPREME COURT REPORTS ANNOTATED ratified.
Javellana vs. The Executive Secretary If this was the situation in Bataan — one of the provinces nearest
to Manila — as late as January 11, 1973, one can easily imagine the
coordinators we had from the Office of the Governor, the splendid predicament of the local officials and people in the remote barrios in
cooperation and support extended by almost all government officials and northern and southern Luzon, in the Bicol region, in the Visayan
employees in the province, particularly of the Department of Education, PC Islands and Mindanao. In fact, several members of the Court,
and PACD personnel, provided us with enough hands to trouble shoot and including those of their immediate families and their household,
implement sudden changes in the instructions anytime and anywhere although duly registered voters in the area of Greater Manila,
needed. x x x were not even notified that citizens’ assemblies would be held in the
“x x x As to our people, in general, their enthusiastic participation places where their respective residences were located. In the
showed their preference and readiness to accept this new method of Prohibition and Amendment case,77 attention was called to the
government to people consultation in shaping up government policies.” “duty cast upon the court of taking judicial cognizance of anything
affecting the existence and validity of any law or portion of
the Constitution x x x.” In line with its own pronouncement in
Thus, as late as January 10, 1973, the Bataan officials had another case, the Federal Supreme Court of the United States
to suspend ”all scheduled Citizens’ Assembly meetings ...” and call stressed, in Baker v. Carr,78 that “a court is not at liberty to shut its
all available officials “x x x to discuss with them the new set of eyes to an obvious mistake, when the validity of the law depends
guidelines and materials to be used x x x.” Then, “on January 11 upon the truth of what is declared.”
x x x another instruction from the top was received to include the In the light of the foregoing, I cannot see how the question under
original five questions among those be discussed and asked in the consideration can be answered or resolved otherwise than in the
Citizens’ Assembly meetings. With this latest order, we again had to negative.
make modifications in our instructions to all those managing and V
supervising holding of the Citizens’ Assembly meetings throughout Have the people acquiesced in the proposed Constitution?
province. x x x As to our people, in general, their enthusiastic It is urged that the present Government of the Philippines is now
participation showed their preference and readiness to accept the and has been run, since January 17, 1971, under the Constitution
new method of government to people consultation in shaping drafted by the 1971 Constitutional Convention; that the political
up government policies.” department of the Government has recognized said revised
This communication manifestly shows: 1) that, as late a January Constitution; that our foreign relations are being conducted under
11, 1973, the Bataan officials had still to discuss— not put into such new or revised Constitution; that the Legislative Department
operation — means and ways to carry out the changing instructions has recognized the same; and that the people, in general, have, by
from the top on how to organize the citizens’ assemblies, what to do their acts or omissions,
therein and even what questions or topics to propound or touch in
said assemblies; 2) that the assemblies would involve no more _______________
than consultations or dialogues between people and government — 77 24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223,
not decisions be made by the people; and 3) that said consultations 228; Harris v. Shanahan, 387 P. 2d. 771, 784, 785.
were aimed only at “shaping up government policies” and, hence 78 369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S.
could not, and did not, partake of the nature of a plebiscite for the 543, 547, 548, 68 L. ed. 841, 843, 44 S. Ct. 405.
ratification or rejection of a proposed amendment of a new or
89/326 90
VOL. 50, MARCH 31, 1973 129
proposed by the 1971 Constitutional Convention has been ratified by

the overwhelming majority of the people — that he could not do
Javellana vs. The Executive Secretary under the authority he claimed to have under Martial Law, since
September 21, 1972, except the power of supervision over inferior
indicated their conformity thereto. courts and its personnel, which said proposed Constitution would
As regards the so-called political organs of the Government, place under the Supreme Court, and which the President has not
gather that respondents refer mainly to the offices under the ostensibly exercised, except as to some minor routine matters, which
Executive Department. In a sense, the latter performs some the Department of Justice has continued to handle, this Court having
functions which, from a constitutional viewpoint, are politics in preferred to maintain the status quo in connection therewith pending
nature, such as in recognizing a new state or government, in final determination of these cases, in which the effectivity of the
accepting diplomatic representatives accredited to our Government, aforementioned Constitution is disputed.
and even in devising administrative means and ways to better carry Then, again, a given department of the Government cannot
into effect. Acts of Congress which define the goals or objectives generally be said to have “recognized” its own acts. Recognition
thereof, but are either imprecise or silent on the particular measures normally connotes the acknowledgment by a party of the acts
to be resorted to in order to achieve the said goals or delegate the of another. Accordingly, when a subordinate officer or office of the
power to do so, expressly or impliedly, to the Executive. This, Government complies with the commands of a superior officer or
notwithstanding, the political organ of a government that purports to office, under whose supervision and control he or it is, the former
be republican is essentially the Congress or Legislative Department. merely obeys the latter. Strictly speaking, and from a legal and
Whatever may be the functions allocated to the Executive constitutional viewpoint, there is no act of recognition involved
Department — specially under a written, rigid Constitution with a therein. Indeed, the lower officer or office, if he or it acted
republican system of Government like ours — the role of that otherwise, would just be guilty of insubordination.
Department is inherently, basically and fundamentally executive in Thus, for instance, the case of Taylor v. Commonwealth80 —
nature — to “take care that the laws be faithfully executed,” in the cited by respondents herein in support of the theory of the people’s
language of our 1935 Constitution.79 acquiescence — involved a constitution ordained in 1902 and
Consequently, I am not prepared to concede that the acts the “proclaimed by a convention duly called by a direct vote of the
officers and offices of the Executive Department, in line with people of the state to revise and amend the Constitution of 1869.
Proclamation No. 1102, connote a recognition thereof o an The result of the work of that Convention has been recognized,
acquiescence thereto. Whether they recognized the proposed accepted and acted upon as the only valid Constitution of the State”
Constitution or acquiesce thereto or not is something that cannot by —
legally, much less necessarily or even normally, be deduced from 1. The “Governor of the State in swearing fidelity to it and
their acts in accordance therewith, because they are bound to obey proclaiming it, as directed thereby”;
and act in conformity with the orders of the President, under whose 2. The “Legislature in its formal official act adopting a joint
“control” they are, pursuant to the 1935 Constitution. They have resolution, July 15, 1902, recognizing the Constitution ordained by
absolutely no other choice, specially in view of Proclamation No. the Convention x x x”;
1081 placing the Philippines under Martial Law. Besides, by virtue
of the very decrees, orders and instructions issued by the President _______________
thereafter, he had assumed all powers of Government — although 80 101 Va. 529, 44 S.E. 754.
some question his authority to do so — and, consequently, there is
hardly anything he has done since the issuance of Proclamation No. 130
1102, on January 17, 1973 — declaring that the Constitution
_______________
79 Art. VII, section 10, paragraph (1).
129
91/326 92
3. The “individual oaths of its members to support it, and by its legislature, as well as of other collegiate bodies under the
having been engaged for nearly a year, in legislating under it and government, are invalid as acts of said legislature or bodies, unless
putting its provisions into operation x x x”; its members have performed said acts in session duly assembled, or
4. The “judiciary in taking the oath prescribed thereby to support unless the law provides otherwise, and there is no such law in the
it and by enforcing its provisions x x x”; and Philippines. This is a well-established principle of Administrative
5. The “people in their primary capacity by peacefully accepting Law and of the Law of Public Officers, and no plausible reason has
it and acquiescing in it, by registering as voters under it to the extent been adduced to warrant departure therefrom.81
of thousands throughout the State, and by voting, under its Indeed, if the members of Congress were generally agreeable to
provisions, at a general election for their representatives in the the proposed Constitution, why did it become necessary to padlock
Congress of the United States.” its premises to prevent its meeting in session on January 22, 1973,
Note that the New Constitution of Virginia, drafted by a and thereafter as provided in the 1935 Constitution? It is true that,
convention whose members were elected directly by the people, theoretically, the members of Congress, if bent on discharging their
was not submitted to the people for ratification or rejection thereof. functions under said Constitution, could have met in any other place,
But, it was recognized, not by the convention itself, but the building in which they perform their duties being immaterial to
by other sectors of the Government, namely, the Governor; the the legality of their official acts. The force of this argument is,
Legislature — not merely by individual acts of its members, but however, offset or dissipated by the fact that, on or about December
by formal joint resolution of its two (2) chambers; by the judiciary; 27, 1972, immediately after a conference between the Executive, on
and by the people, in the various ways specified above. What is the one hand, and members of Congress, on the other, some of
more, there was no martial law. In the present cases, none of the whom expressed the wish to meet in session on January 22, 1973, as
foregoing acts of acquiescence was present. Worse still, there is provided in the 1935 Constitution, a Daily Express columnist
martial law, the strict enforcement of which was announced shortly (Primitivo Mijares) attributed to Presidential Assistant Guillermo de
before the alleged citizens’ assemblies. To top it all, in the Taylor Vega a statement to the effect that “ ‘certain members of the Senate
case, the effectivity of the contested amendment was not contested appear to be missing the point in issue’ when they
judicially until about one (1) year after the amendment had been put reportedly insisted on taking up first the question of convening
into operation in all branches of the Government, and complied with Congress.” The Daily Express of that date,82 likewise, headlined, on
by the people who participated in the elections held pursuant to the its front page, a “Senatorial Plot Against ‘Martial Law Government’
provisions of the new Constitution. In the cases under consideration, Disclosed.”
the legality of Presidential Decree No. 73 calling a plebiscite to be
held on January 15, 1973, was impugned as early as December 7, _______________
1972, or five (5) weeks before the scheduled plebiscite, whereas the 81 Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62
validity of Proclamation No. 1102 declaring on January 17, 1973, C.J.S. 749-750; Guevara v. Inocentes, L-25577, March 15, 1966.
that the proposed Constitution had been ratified — despite General 82 Which, in some respects, is regarded as an organ of the Administration, and the
Order No. 20, issued on January 7, 1972, formally and officially news items published therein are indisputably censored by the Department of Public
suspending the plebiscite until further notice — was impugned as Information.
early as January 20, 1973, when L-36142 was filed, or three (3)
days after the issuance of Proclamation No. 1102. 132
131

Then, in its issue of December 29, 1972, the same paper imputed to
the Executive an appeal “to diverse groups involved in
a conspiracy to undermine” his powers” under martial law to desist
It is further alleged that a majority of the members of our House from provoking a constitutional crisis x x x which may result in the
of Representatives and Senate have acquiesced in the new or revised exercise by me of authority I have not exercised.”
Constitution, by filing written statements opting to serve in the Ad No matter how good the intention behind these statement may
Interim Assembly established in the Transitory Provisions of said have been, the idea implied therein was too clear and ominous for
Constitution. Individual acts of recognition by members of our any member of Congress who thought of organizing, holding or
93/326 94
taking part in a session of Congress, not to get the impression that he the Secretary of the House of Representatives, concerning legislative
could hardly do so without inviting or risking the application of measures approved by the two Houses of Congress. The argument of
Martial Law to him. Under these conditions, I do not feel justified in the Solicitor General is, roughly, this: If the enrolled bill is entitled
holding that the failure of the members of Congress to meet since to full faith and credence and, to this extent, it is conclusive upon the
January 22, 1973, was due to their recognition, acquiescence in or President and the judicial branch of the Government, why should
conformity with the provisions of the aforementioned Constitution, Proclamation No. 1102 merit less consideration than in enrolled bill?
or its alleged ratification. Before answering this question, I would like to ask the following:
For the same reasons, especially because of Proclamation No. If, instead of being certified by the aforementioned officers of
1081, placing the entire Philippines under Martial Law, neither am I Congress, the so-called enrolled bill were certified by, say, the
prepared to declare that the people’s inaction as regards President of the Association of Sugar Planters and/or Millers of the
Proclamation No. 1102, and their compliance with a number of Philippines, and the measure in question were a proposed legislation
Presidential orders, decrees and/or instructions — some or many of concerning Sugar Plantations and Mills sponsored by said
which have admittedly had salutary effects — issued subsequently Association, which even prepared the draft of said legislation, as
thereto amounts, constitutes or attests to a ratification, adoption or well as lobbied actually for its approval, for which reason the
approval of said Proclamation No. 1102. In the words of the Chief officers of the Association, particularly, its aforementioned president
Executive, “martial law connotes power of the gun, — whose honesty and integrity are unquestionable — were present
meant coercion by the military, at the deliberations in Congress when the same approved the
and compulsion and intimidation.”83 The failure to use the gun proposed legislation, would the enrolled bill rule apply thereto?
against those who comply with the orders of the party wielding the Surely, the answer would have to be in the negative. Why? Simply,
weapon does not detract from the intimidation that Martial Law because said Association President has absolutely no official
necessarily connotes. It may reflect the good, reasonable and authority to perform in connection therewith, and, hence, his
wholesome attitude of the person who has the gun, either pointed at certification is legally, as good as non-existent.
others, without pulling the trigger, or merely kept in its holster, but Similarly, a certification, if any, of the Secretary of the
not without warning that he may or would use it if he deemed it Department of Local Governments and Community Development
necessary. Still, the intimidation is there, and inaction or obedience about the tabulated results of the voting in the
of the people, under these conditions, is not necessarily an act of
134
conformity or acquiescence. This is specially so when we consider
that the masses are, by and
83 Daily Express, November 29, 1972, p. 4. Italics ours.
133 Citizens Assemblies allegedly held all over the Philippines — and
the records do not show that any such certification, to the President
of the Philippines or to the President Federation or National
VOL. 50, MARCH 31, 1973 133
Association of presidents of Provincial Associations of presidents of
Javellana vs. The Executive Secretary municipal association presidents of barrio or ward assemblies of
citizens — would not, legally and constitutionally, be worth the
large, unfamiliar with the parliamentary system, the new form of paper on which it is written. Why? Because said Department
government introduced in the proposed Constitution, with the Secretary is not the officer designated by law to superintend
particularity that it is not even identical to that existing in England plebiscites or elections held for the ratification or rejection of a
and other parts of the world, and that even experienced lawyers and proposed amendment or revision of the Constitution and, hence, to
social scientists find it difficult to grasp the full implications of some tabulate the results thereof. Worse still, it is the department which,
provisions incorporated therein. according to Article X of the Constitution, should not and
As regards the applicability to these cases of the “enrolled bill” must not be all participate in said plebiscite — if plebiscite there
rule, it is well to remember that the same refers to a document was.
certified to the President — for his action under the Constitution — After citing approvingly its ruling in United States v.
by the Senate President and the Speaker of the House of Sandoval,84 the Highest Court of the United States that courts
Representatives, and attested to by the Secretary of the Senate and
95/326 96
“will not stand impotent before an obvious instance of a manifestly virtue of Proclamation 1102.”86 When the petitions at bar were filed,
unauthorized exercise of power.”85 the same three (3) members of the Court, consequently, voted for the
I cannot honestly say, therefore, that the people impliedly or dismissal of said petitions. The majority of the members of the Court
expressly indicated their conformity to the proposed Constitution. did not share, however, either view, believing that the main question
VI that arose before the rendition of said judgment had not been
Are the Parties entitled to any relief? sufficiently discussed and argued as the nature and importance
Before attempting to answer this question, a few words be said thereof demanded.
about the procedure followed in these five (5) cases. In this The parties in the cases at bar were accordingly given every
connection, it should be noted that the Court has not decided possible opportunity to do so and to elucidate on and discuss said
whether or not to give due course to the petitions herein or to require question. Thus, apart from hearing the parties in oral argument for
the respondents to answer thereto. Instead, it has required the five (5) consecutive days — morning and
respondents to comment on the respective petitions — with three (3)
members of the voting to dismiss them outright — and then _______________
considers comments thus submitted by the respondents as motions to 86 Justice Barredo’s opinion in the plebiscite cases.
dismiss, as well as set the same for hearing. This was due to
136
_______________
84 231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1. 136 SUPREME COURT REPORTS ANNOTATED
85 Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.
135
afternoon, or a total of exactly 26 hours and 31 minutes — the
VOL. 50, MARCH 31, 1973 135 respective counsel filed extensive notes on their or arguments, as
well as on such additional arguments as they wished to submit, and
Javellana vs. The Executive Secretary reply notes or memoranda, in addition to rejoinders thereto, aside
from a sizeable number of document in support of their respective
the transcendental nature of the main issue raised, the necessity of contentions, or as required by the Court. The arguments, oral and
deciding the same with utmost dispatch, and the main defense set up written, submitted have been so extensive and exhaustive, and the
by respondents herein, namely, the alleged political nature of said documents filed in support thereof so numerous and bulky, that, for
issue, placing the same, according to respondents, beyond the ambit all intents and purposes, the situation is as if — disregarding forms
of judicial inquiry and determination. If this defense was sustained, — the petitions had been given due course and the cases had been
the cases could readily be dismissed; but, owing to the importance of submitted for decision.
the questions involved, a reasoned resolution was demanded by Accordingly, the majority of the members of the Court believe
public interest. At the same time, respondents had cautioned against that they should express their views on the aforementioned issues as
a judicial inquiry into the merits of the issues posed on account of if the same were being decided on the merits, and they have done so
the magnitude of the evil consequences, it was claimed, which in their individual opinion attached hereto. Hence, the resume of the
would result from a decision thereon, if adverse to the Government. votes cast and the tenor of the resolution, in the last pages hereof,
As a matter of fact, some of those issues had been raised in the despite the fact that technically the Court has not, as yet, formally
plebiscite cases, which were dismissed as moot and academic, given due course to the petitions herein.
owing to the issuance of Proclamation No. 1102 subsequently to the And, now, here are my views on the reliefs sought by the parties.
filing of said cases, although before the rendition of judgment In L-36165, it is clear that we should not issue the writ
therein. Still one of the members of the Court (Justice Zaldivar) was of mandamus prayed for against Gil J. Puyat and Jose Roy, President
of the opinion that the aforementioned issues should be settled in and President Pro Tempore respectively of the Senate, it being
said cases, and he, accordingly, filed an opinion passing upon the settled in our jurisdiction, based upon the theory of separation of
merits thereof. On the other hand, three (3) members of the Court — powers, that the judiciary will not issue such writ to the head of a
Justices Barredo, Antonio and Esguerra — filed separate opinions co-equal department, like the aforementioned officers of the Senate.
favorable to the respondents in the plebiscite cases, Justice Barredo In all other respects and with regard to the other respondent in
holding “that the 1935 Constitution has pro tanto passed into history said case, as well as in cases L-36142, L-36164, L-36236 and L-
and has been legitimately supplanted by the Constitution in force by 36283, my vote is that the petitions therein should be given due
97/326 98
course, there being more than prima facie showing that the proposed 138 SUPREME COURT REPORTS ANNOTATED
Constitution has not been ratified in accordance with Article XV of Javellana vs. The Executive Secretary
the 1935 Constitution, either strictly, substantially, or has been
acquiesced in by the people or majority thereof; that said proposed

Constitution is not in force and effect; and that the 1935 Constitution
The five questions thus agreed upon as reflecting the basic issues
is still the
herein involved are the following:
137 1. Is the issue of the validity of Proclamation No. 1102 a
justiciable, or political and therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional
VOL. 50, MARCH 31, 1973 137
Convention been ratified validly (with substantial, if not strict,
Javellana vs. The Executive Secretary compliance) conformably to the applicable constitutional and
statutory provisions?
Fundamental Law of the Land, without prejudice to the submission 3. Has the aforementioned proposed Constitution acquiesced in
of said proposed Constitution to the people at a plebiscite for its (with or without valid ratification) by the people?
ratification or rejection in accordance with Articles V, X and XV of 4. Are petitioners entitled to relief? and
the 1935 Constitution and the provisions of the Revised Election 5. Is the aforementioned proposed Constitution in force?
Code in force at the time of such plebiscite. The results of the voting, premised on the individual views
Perhaps others would feel that my position in these cases expressed by the members of the Court in their respect opinions
overlooks what they might consider to be the demands of “judicial and/or concurrences, are as follows:
statesmanship,” whatever may be the meaning of such phrase. I am 1. On the first issue involving the political-question doctrine
aware of this possibility, if not probability; but “judicial Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and
statesmanship,” though consistent with Rule of Law, cannot myself, or six (6) members of the Court, hold that the issue of the
prevail over the latter. Among consistent ends or consistent values, validity of Proclamation No. 1102 presents a justiciable and non-
there always is a hierarchy, a rule of priority. political question. Justices Makalintal and Castro did not vote
We must realize that the New Society has many achievements squarely on this question, but, only inferentially, in their discussion
which would have been very difficult, if not impossible, to of the second question. Justice Barredo qualified his vote, stating
accomplish under the old dispensation. But, in and for the judiciary, that “inasmuch as it is claimed there has been approval by the
statesmanship should not prevail over the Rule of Law. Indeed, the people, the Court may inquire into the question of whether or not
primacy of the law or of the Rule of Law and faithful adherence there has actually been such an approval, and, in the affirmative, the
thereto are basic, fundamental and essential parts of statesmanship Court should keep hands-off out of respect to the people’s will, but,
itself. in negative, the Court may determine from both factual and legal
Resume of the Votes Cast and the Court’s Resolution angles whether or not Article XV of the 1935 Constitution been
As earlier stated, after the submittal by the members of the Court complied with.” Justices Makasiar, Antonio, Esguerra, or three (3)
of their individual opinions and/or concurrences as appended hereto, members of the Court hold that the issue is political and “beyond the
the writer will now make, with the concurrence of his colleagues, a ambit of judicial inquiry.”
resume or summary of the votes cast by each of them. 2. On the second question of validity of the ratification, Justices
It should be stated that by virtue of the various approaches and Makalintal, Zaldivar, Castro, Fernando, Teehankee
views expressed during the deliberations, it was agreed to synthesize
139
the basic issues at bar in broad general terms in five questions for
purposes of taking the votes. It was further agreed of course that
each member of the Court would expound in his individual opinion VOL. 50, MARCH 31, 1973 139
and/or concurrence his own approach to the stated issues and deal Javellana vs. The Executive Secretary
with them and state (or not) his opinion thereon singly or jointly and
with such priority, qualifications and modifications as he may deem
and myself, or six (6) members of the Court also hold that the
proper, as well as discuss thereon other related issues which he may
Constitution proposed by the 1971 Constitutional Convention was
consider vital and relevant to the cases at bar.
not validly ratified in accordance with Article XV, section 1 of the
138 1935 Constitution, which provides only one way for ratification, i.e.,
99/326 100
“in an election or plebiscite held in accordance with law and state that such doctrine calls for application in view of the shortness
participated in only by qualified and duly registered voters.”87 of time that has elapsed and the difficulty of ascertaining what is the
Justice Barredo qualified his vote, stating that “(A)s to whether or mind of the people in the absence of the freedom of debate that is a
not the 1973 Constitution has been validly ratified pursuant to concomitant feature of martial law.”88
Article XV, I still maintain that in the light of traditional concepts Three (3) members of the Court express their lack of knowledge
regarding the meaning and intent of said Article, the referendum in and/or competence to rule on the question. Justices Makalintal and
the Citizens’ Assemblies, specially in the manner the votes therein Castro are joined by Justice Teehankee in their statement that
were cast, reported and canvassed, falls short of the requirements “Under a regime of martial law, with the free expression of opinions
thereof. In view, however, of the fact that I have no means of through the usual media vehicle restricted, (they) have no means of
refusing to recognize as a judge that factually there was voting and knowing, to the point of judicial certainty, whether the people have
that the majority of the votes were for considering as approved the accepted the Constitution.”89
1973 Constitution without the necessity of the usual form of 4. On the fourth question of relief, six (6) members of the Court,
plebiscite followed in past ratifications, I am constrained to hold namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
that, in the political sense, if not in the orthodox legal sense, the Esguerra voted to DISMISS the petition. Justice Makalintal and
people may be deemed to have cast their favorable votes in the Castro so voted on the strength of their view that “(T)he effectivity
belief that in doing so they did the part required of them by Article of the said Constitution, in the final analysis, is the basic and
XV, hence, it may be said that in its political aspect, which is what ultimate question posed by these cases to resolve which
counts most, after all, said Article has been substantially complied considerations other than judicial, an therefore beyond the
with, and, in effect, the 1973 Constitution has been constitutionally competence of this Court,90 are relevant and unavoidable.”91
ratified.”
Justices Makasiar, Antonio and Esguerra, or three (3) members of
the Court hold that under their view there has been in effect _______________
substantial compliance with the constitutional requirements for valid 88 Justice Barredo’s language.
ratification. 89 At p. 153, joint opinion of Justices Makalintal and Castro.
3. On the third question of acquiescence by the Filipino people in 90 Joint Opinion of Justices Makalintal and Castro, p. 153.
the aforementioned proposed Constitution, no majority vote has 91 At p. 8, Idem.
been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, 141
Antonio and Esguerra hold that “the people have already
VOL. 50, MARCH 31, 1973 141
_______________
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
140
Four (4) members of the Court, namely, Justices Zaldivar,
140 SUPREME COURT REPORTS ANNOTATED Fernando, Teehankee and myself voted to deny respondents’ motion
to dismiss and to give due course to the petitions.
Javellana vs. The Executive Secretary 5. On the fifth question of whether the new Constitution of 1973
is in force:
accepted the 1973 Constitution.” Four (4) members of the Court, namely, Justices Barredo,
Two (2) members of the Court, namely, Justice Zaldivar and Makasiar, Antonio and Esguerra hold that it is in force by
myself hold that there can be no free expression, and there has even virtue of the people’s acceptance thereof;
been no expression, by the people qualified to vote all over the Four (4) members of the Court, namely, Justices
Philippines, of their acceptance or repudiation of the proposed Makalintal, Castro, Fernando and Teehankee cast no vote
Constitution under Martial Law. Justice Fernando states that “(I)f it thereon on the premise stated in their votes on the third
is conceded that the doctrine stated in some American decisions to question that they could not state with judicial certainty
the effect that independently of the validity of the ratification, a new whether the people have accepted or not accepted the
Constitution once accepted acquiesced in by the people must be Constitution; and
accorded recognition by the Court, I am not at this stage prepared to
101/326 102
Two (2) members of the Court, namely, Justice Zaldivar “(a) An examination of the decisions shows that the courts have
and myself voted that the Constitution proposed by the 1971 almost uniformly exercised the authority to determine the validity of
Constitutional Convention is not in force; the proposal, submission, or ratification of constitutional
with the result that there are not enough votes to declare that the new amendments. It has beenjudicially determined whether a proposed
Constitution is not in force. amendment received the constitutional majority of votes (Dayton v.
ACCORDINGLY, by virtue of the majority of six (6) votes of St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396;
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251;
Esguerra with the four (4) dissenting votes of the Chief Justice and State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422;
Justices Zaldivar, Fernando and Teehankee, all the aforementioned Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779;
cases are hereby dismissed. This being the vote of the majority, there Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep.
is no further judicial obstacle to the new Constitution being 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight
considered in force and effect. v. Shelton [C.C.] 134 Fed. 423); whether a proposed amendment is a
It is so ordered. single amendment, within the constitutional requirement that every
amendment must be separately submitted (State v. Powell, 77 Miss.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70
JJ., concur. S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny,
Concepcion, C.J., dissents. 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127
Zaldivar, J., dissents in line with the personal opinion of Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac.
167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac.
142
450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the
142 SUPREME COURT REPORTS ANNOTATED legislative journals invalidates the amendment (Koehler v. Hill, 60
Javellana vs. The Executive Secretary Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton,
69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412;
Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev.
the Chief Justice, and also dissents in a separate opinion.
391, 12 Pac. 835, 3 Am.
Fernando, J., dissents in conformity with the personal views of
the Chief Justice, except as to such portions thereof on which he 144
expresses his own thoughts as set forth in his dissenting opinion;
Teehankee, J., dissents in conformity with the Chief Justice’s
personal opinion and files a separate dissent.

143 St. Rep. 895); whether the description of the amendment and the
form of the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W.
849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149;
VOL. 50, MARCH 31, 1973 143 Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127);
Javellana vs. The Executive Secretary whether the method of submission sufficient (Lovett v. Ferguson,, 10
S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849);
whether the publication of the amendment or of a notice relative to it
ANNEX A is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A.
PERTINENT PORTIONS 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the
OF THE submission may be well by resolution as by a legislative act
MINNESSOTA SUPREME COURT approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505,
DECISION 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward
ON THE CASE Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays,
IN RE McCONAUGHY* 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34
L.R.A. 97); at what election the amendment be submitted (People v.
Curry, 130 Cal. 82, 62 Pac. 516).
103/326 104
“In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, “In State v. Swift, 69 Ind. 505, it was said that: ‘The people of a
the court said: “It is contended that the determination of the question state may form an original Constitution, or abrogate an old one and
whether an amendment to the Constitution has been carried involves form a new one, at any time, without any political
the exercise of political, and not judicial, power. If this be so, it restriction, except the Constitution of the United States, but if they
follows that the promulgation of any purported amendment by the undertake to add an amendment, by the authority of legislation to a
executive or any executive department is final, and that the action Constitution already in existence, they can do it only by the method
cannot be questioned by the judiciary; but, with reference to the pointed out by the Constitution to which the amendment is added.
conditions precedent to submitting a proposed amendment to a vote The power to amend a Constitution by legislative action
of the people, it has been repeatedly held, by courts of the highest does not confer the power to break it, any more than it confers the
respectability, that it is within the power of the judiciary to inquire power to legislate on any other subject contrary to its prohibitions.’
into the question, even in a collateral proceeding. * * * It is to be So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held
noted that under section 1 of article 20 of the Constitution of the that no amendments can be made to the Constitution of the
state no amendment can become a part of the Constitution until state without a compliance with the provisions thereof, both in the
ratified by a vote of the people. One prerequisite is equally as passage of such amendment by the Legislature and the manner of
essential as the other. The amendment must first receive the requisite submitting it to the people. The courts have not all agreed as to the
majority in the Legislature, and afterwards be adopted by the strictness of compliance which should be required.
requisite vote. * * * It is the fact of a majority vote which makes the “In the Prohibition and Amendment Case, 24 Kan. 700, the
amendment a part of the Constitution.’
146
“In considering the cases it is necessary to note whether in the
particular case the court was called upon to determine between rival
governments, or whether the Legislature, or 146 SUPREME COURT REPORTS ANNOTATED
VOL. 50, MARCH 31, 1973 145 court determined judicially whether an amendment to the
Constitution had been legally adopted. After approving the
Javellana vs. The Executive Secretary statement quoted from Collier v. Frierson, supra, that ‘we
entertain no doubt that, to change the Constitution in an other mode
some board or official, had legally performed the duty imposed by than by a convention, every requisite which is demanded by the
the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 instrument itself must be observed, and the omission of any one is
Am. Dec. 636, it was held that the General Assembly, under the fatal to the amendment,’ the court held that, ‘as substance of right is
power granted by the Constitution, could change the grander and more potent than methods of form,’ there had been
Constitution only in the manner prescribed by it, and that it was the substantial compliance with the constitutional requirement that a
duty of the court to determine whether all prerequisites had been proposed amendment to the Constitution must be entered at
complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a length on the legislative journal. It appears that the joint resolution
Constitution can be changes only by the peoplein convention or in a making submission simply provided that a proposition should be
mode described by the Constitution itself, and that if the latter mode submitted to the electors at the general election of 1880. It did not
is adopted every requisite of the Constitution must be observed. ‘It declare that the machinery of the general election law should
has been said,” says the court, “that certain acts are to be done, control, or that any particular officers or board would receive,
certain requisitions are to be observed, before a change can be count, or canvass the votes cast. But the existing election machinery
effected; but to what purpose are these acts required, or these was adequate, and the votes were received, counted, and canvassed,
requisitions enjoined, if the Legislature or any other department of and the result declared as fully as though it had been in terms so
the government can dispense with them. To do so would be to ordered. These methods had been followed in the adoption of
violate the instrument which they are sworn to support; and every previous amendments, and was held that, conceding the irregularity
principle of public law and sound constitutional policy requires the of the proceedings the Legislature and the doubtful scope of the
court to pronounce against every amendment which is shown not to provisions for the election, yet in view of the very uncertainty of
have been made in accordance with the rules prescribed by the such provision the past legislative history of similar propositions,
fundamental law.’ the universal prior acquiescence in the same forms of procedure and
the popular and unchallenged acceptance of the legal pendency
105/326 106
before the people of the question of the amendment for decision, and themselves exist, and from which they derive their powers,
in view of the duty cast upon the court taking judicial knowledge of yet, where the existing Constitution prescribes a method for its own
anything affecting the existence and validity of any law or portion of amendment, an amendment thereto, to be valid, must be adopted in
the Constitution, it must be adjudged that the proposed amendment strict conformity to that method; and it is the duty of the courts in a
became part of the Constitution. The effect was to hold that a proper case, when an amendment does not relate to their own power
provision of the Constitution requiring the proposed amendment to or functions, to inquire whether, in the adoption of the
be entered in full on the journals was directory, and not mandatory. amendment, the provisions of the existing Constitution have been
This liberal view was approved in State v. Winnett (Neb.) 110 N. observed, and, if not, to declare the amendment invalid and of no
1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. force. This case was followed in State v. Brookhart,
167, 102 Am. St. Rep. 34. But it has not been universally accepted.
148
“In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the
court, in commenting upon the Kansas case said: ‘The
147
VOL. 50, MARCH 31, 1973 147

113 Iowa, 250, 84 N.W. 1064.
Javellana vs. The Executive Secretary “In University v. McIver, 72 N.C. 76, the question whether a
proposed amendment to the Constitution had been legally adopted
reasoning by which the learned court reached the conclusion it did was treated as a judicial question. By the Constitution a proposed
is not based on any sound legal principles, but contrary to amendment was required to be approved by Legislatures before its
them. Neither the argument nor the conclusion can command our submission to the people. In this instance a bill was passed which
assent or approval. The argument is illogical, and based on premises contained 17 amendments. The next Legislature rejected 9 and
which are without any sound foundation, and rests merely on adopted 8 of the amendments, and submitted them to the people. The
assumption.’ See, also, the well-considered case of Kadderly v. majority of the people voted for their adoption; but it was contended
Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these that the Constitution contemplated and required that the same bill
cases concede the jurisdiction of the court to determine whether, in and the same amendments, without change, should approved by both
submitting a proposed amendment to the people, the Legislatures, and that it did not follow because the second
Legislature legally observed the constitutional provisions as to the Legislature adopted separately 8 out of 17 amendments adopted by
manner of procedure. InLivermore v. Waite, 102 Cal. 113, 36 Pac. the first Legislature, it would have adopted the 17, or any of them, if
424, 25 L.R.A. 312, the court, at the instance of a citizen and a they had been voted upon the second in the form adopted by the first
taxpayer, restrained the Secretary of State from taking steps to body. The substance of the contention was that there had not been a
submit to the people a proposed amendment to the Constitution concurrence of the two Legislatures on the same amendments,
agreed to by the Legislature on the ground that the Legislature had according to the letter and spirit of the Constitution. The court held
not acted in conformity with the Constitution and that the proposed that the power of the Legislature in submitting amendments
amendment was of such a character that it could not properly could not be distinguished from the powers of convention, and that,
become a part of the Constitution. The Supreme Court of Colorado, as the people had spoken and ratified the amendments, they became
in People v. Sours, supra, refused to exercise this authority. a part of the Constitution.
“The entire question received elaborate consideration in Koehler “In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was
v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, held that prior to 1876 a proposed amendment to Constitution could
which concededly had been adopted by the people, had not, before not be submitted to the people at any other than a general election;
its submission, been entered in full upon the legislative journals, as but, as the amendment under consideration had been
required by the Constitution, and it was held that this was submitted after the Constitution been changed, it had been legally
a materialvariance in both form and substance from the submitted and adopted.
constitutional requirements, and that the amendment did not, “In State v. Powell, 77 Miss. 543, 27 South. 927, the question
therefore, become a part of the Constitution. As to the claim that the whether an amendment to the Constitution had been legally
question was political, and not judicial, it was said that, while it is submitted and adopted by the people was held to be judicial,
not competent for courts to inquire into the validity of the and not political, in its nature. The amendment under
Constitution and the form of government under which they consideration changed the Constitution by providing for an elective,
107/326 108
instead of an appointive, judiciary. It was contented that the us a most difficult and embarrassing duty, one which we have not
amendments had been improperly submitted and adopted by a sought, but one which, like all others, must be discharged.’
majority of the qualified voters voting at election, as required by the
150
Constitution. The law did not
149
VOL. 50, MARCH 31, 1973 149
“In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A.
direct how the result of the election should be determined. The 251, it was held that it was the duty of the judicial department of the
Legislature by joint resolution recited that the election had been duly government to determine whether the legislative department or its
held throughout the state, and, as it appeared from the returns made officers had observed the constitutional injunctions in attempting to
to the Secretary of State, that 21,169 votes were cast in favor of, and amend the Constitution, and to annul their acts if they had not done
8,643 votes against, the amendment, it resolved ‘that said so. The case is an interesting and well-considered one. The
amendment be, and hereby is, inserted into the Constitution of the Constitution provided the manner in which proposed amendments
state of Mississippi as a part of the Constitution.’ In fact, the should be submitted to the people, but did not provide a method for
amendment was not submitted in the manner prescribed by the canvassing the votes. The Legislature having agreed to certain
Constitution, and it did not receive a majority of all the qualified proposed amendments, passed an act for submitting the same to the
voters voting at the election. It was argued that the rules prescribed people. This statute provided for the transmission to the Secretary of
by the Constitution “are all for the guidance of the Legislature, and State of certificate showing the result of the voting throughout the
from the very nature of the thing the Legislature must be state, and made it the duty of the Governor at the designated time
the exclusive judge of all questions to be measured or determined by summon four or more Senators, who, with the Governor, should
these rules. Whether the question be political, and certainly a constitute a board of state canvassers to canvass and estimate the
legislative one, or judicial, to be determined by the courts, this votes for and against each amendment. This board was to determine
section of rules, not only of procedure, but of final judgment as well, and declare which of the proposed amendments had been adopted
confides to the separate magistracy of and to deliver a statement of the results to the Secretary of State, and
the legislative department full power to hear, consider, and adjudge “any proposed amendment, which by said certificate and
that question. The Legislature puts the question to determination of the board of canvassers shall appear to have
the qualified electors. The qualified electors answer back to the received in its favor the majority of all the votes cast in the state for
Legislature. “If it shall appear” to the Legislature that its question and against said proposed amendment, shall from the time of filing
has been answered in the affirmative, the amendment is inserted and such certificate be and become an amendment to and a part of the
made a part of the Constitution. The Governor and the courts have Constitution of the state; and it shall be the duty of the Governor of
no authority to speak at any stage of the proceedings between the the state forthwith, after such a determination, to issue a
sovereign and the Legislature, and when the matter is thus proclamation declaring which of the said proposed amendments
concluded it is closed, and the judiciary is as powerless to interfere have been adopted by the people.” This board was required to file a
as the executive.’ But it was held that the question whether the statement of the result of the election, and the Governor to issue his
proposition submitted to the voters constituted one, or more than proclamation declaring that the amendment had been adopted and
one, amendment, whether the submission was according to the become a part of the Constitution. At the instance of a taxpayer the
requirements of the Constitution, and whether the proposition was in Supreme Court allowed a writ of certiorari to remove into the court
fact adopted, were all judicial, and not political, questions. ‘We do for review the statement of the results of the election made by the
not,’ said Chief Justice Whitfield, ‘seek a jurisdiction not imposed canvassing board, in order that it might be judicially
upon us by the Constitution. We could not, if we would, escape the determined whether on the facts shown in that statement the board
exercise of that jurisdiction which the Constitution has imposed had legally determined that the proposed amendment had been
upon us. In the particular instance in which we are now acting, our adopted. The Supreme Court decided that the concurrence of the
duty to know what the Constitution of the state is, and in accordance board of state canvassers and the executive department of the
with our oaths to support and maintain it in its integrity, imposed on government in their respective official
109/326 110
151 BY THE PRESIDENT OF THE PHILIPPINES

PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
VOL. 50, MARCH 31, 1973 151
WHEREAS, since their creation pursuant to Presidential Decree
Javellana vs. The Executive Secretary No. 86 dated December 31, 1972, the Barangays (Citizens
Assemblies) have petitioned the Office of the President to submit to
functions placed the subject-matter beyond the cognizance of the them for resolution important national issues;
judicial department of the state. The Court of Appeals, after a full WHEREAS, one of the questions persistently mention refers to
review of the authorities, reversed this decision, and held that the the ratification of the Constitution proposed by the 1971
questions were of a judicial nature, and properly determinable by Constitutional Convention;
the court on their merits. Mr. Justice Dixon, after stating the facts, WHEREAS, on the basis of the said petitions, it is evident that
said: ‘It thus becomes manifest that there was present in the the people believe that the submission of the proposed Constitution
Supreme Court, and is now pending in this court, every element to the Citizens Assemblies or Barangays should taken as a plebiscite
tending to maintain jurisdiction over the subject-matter, unless it be in itself in view of the fact that freedom of debate has always been
true, as insisted, that the judicial department of the government has limited to the leadership in political, economic and social fields, and
not the right to consider whether the legislative department and its that it is now necessary to bring this down to the level of the people
agencies have observed constitutional injunctions in attempting to themselves through the Barangays or Citizens Assemblies;
amend the Constitution, and to annul their acts in case that they NOW, THEREFORE, I, FERDINAND E. MARCOS, President
have not done so. That such a proposition is not true seems to be of the Philippines, by virtue of the powers in me vested by the
indicated by the whole history of jurisprudence in this country.’ The Constitution, do hereby order that important national issues shall
court, after considering the case on the merits, held that the proper from time to time be referred to the Barangays (Citizens
conclusion had been drawn therefrom, and that the amendment in Assemblies) for resolution in accordance with Presidential Decree
question was legally submitted and adopted. No. 86-A dated January 5, 1973 an that the initial referendum shall
“The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, include the matter of ratification of the Constitution proposed by the
presented the identical question which we have under consideration. 1971 Constitutional Convention.
In reference to the contention that the Constitution intended to
153
delegate to the Speaker of the House of Representatives the power to
determine whether an amendment had been adopted, and that the
question was political, and not judicial, the court observed: “The VOL. 50, MARCH 31, 1973 153
argument has often been made in similar cases to the courts, and it is
found in many dissenting opinions; but, with probably
a few exceptions, it is not found in any prevailing opinion.”
“In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it
was held that the constitutional requirement of publication of a The Secretary of the Department of Local Government and
proposed constitutional provision for three months prior to the Community Development shall insure the implementation of this
election at which it is to be submitted to the people is mandatory and Order.
that noncompliance therewith renders the adoption of an amendment Done in the City of Manila, this 7th day of January in the year of
of no effect.” Our Lord, nineteen hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
152 By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary

Javellana vs. The Executive Secretary MAKALINTAL and CASTRO, JJ.:
The preliminary question before this Court was whether or not
the petitioners had made out a sufficient prima facie case in their
ANNEX B petitions to justify their being given due course. Considering on the
MALACAÑANG one hand the urgency of the matter and on the other hand its
MANILA transcendental importance, which suggested the need for hearing the
111/326 112
side of the respondents before that preliminary question was This is a statutory requirement designed, as were the other election
resolved, We required them to submit their comments on the laws previously in force, to carry out the constitutional mandate
petitions. After the comments were filed We considered them as relative to the exercise of the right suffrage, and with specific
motions to dismiss so that they could be orally argued. As it turned reference to the term “plebiscites,” the provision of Article XV
out, the hearing lasted five days, morning and afternoon, and could regarding ratification of constitutional amendments.
not have been more exhaustive if the petitions had been given due The manner of conducting elections and plebiscites provided by
course from the beginning. the Code is spelled out in other sections thereof. Section 99 requires
The major thrust of the petitions is that the act of the Citizens that qualified voters be registered in a permanent list, the
Assemblies as certified and proclaimed by the President on January qualifications being those set forth in Article V, Section 1, of the
17, 1973 (Proclamation No. 1102) was not an act of ratification, let 1935 Constitution on the basis of age (21), literacy and residence.
alone a valid one, of the proposed Constitution, because it was not in These qualifications are reiterated
accordance with the existing Constitution (of 1935) and the Election
155
Code of 1971. Other grounds are relied upon by the petitioners in
support of their basic proposition, but to our mind they are merely
subordinate and peripheral. VOL. 50, MARCH 31, 1973 155
154 SUPREME COURT REPORTS ANNOTATED in Section 101 of the Election Code. Section 102 enumerates the
classes of persons disqualified to vote. Succeeding sections prescribe
Javellana vs. The Executive Secretary the election paraphernalia to be used, the procedure for registering
voters, the records, of registration and the custody thereof, the
description and printing of official ballots, the actual casting of votes
Article XV, Section 1, of the 1935 Constitution provides that and their subsequent counting by the boards of inspectors, the rules
amendments (proposed either by Congress in joint session or by a for appreciation of ballots, and then the canvass and proclamation of
Convention called by it for the purpose) “shall be valid part of this the results.
Constitution when approved by a majority of votes cast at With specific reference to the ratification of the 1972 draft
an election at which the amendments submitted to the people for Constitution, several additional circumstances should be considered:
their ratification.” At the time Constitution was approved by the (1) This draft was prepared and approved by a Convention which
Constitutional Convention on February 8, 1935, and ratified in a had been convened pursuant to Resolution No. 2 passed by Congress
plebiscite held on following May 14, the word “election” had on March 16, 1967, which provides:
already a definite meaning in our law and jurisprudence. It was not a
vague and amorphous concept, but a procedure prescribed by statute “Sec. 7. The amendments proposed by the Convention shall be valid and
ascertaining the people’s choices among candidates for public considered part of the Constitution when approved by a majority of
offices, or their will on important matters submitted to the pursuant the votes cast in an election at which they are submitted to the people for
to law, for approval. It was in this sense that word was used by the their ratification pursuant to Article XV of the Constitution.”
framers in Article XV (also in Articles VI and VII), and in (2) Article XVII, Section 16, of the draft itself states:
accordance with such procedure that plebiscites were held to ratify
the very same Constitution in 1935 as well as the subsequent “Sec. 16. This Constitution shall take effect immediately upon its
amendments thereto, thus: in 1939 (Ordinance appended to the ratification by a majority of the votes cast in a plebiscite called for the
Constitution); 1940 (establishment of a bicameral legislature; purpose and, except as herein provided, shall supersede the Constitution of
eligibility of the President and the Vice President for re election; nineteen hundred and thirty-five and all amendments thereto.”
creation of the Commission of Elections); 1947 (Parity
Amendment); and 1967 (increase in membership of the House of The same procedure is prescribed in Article XVI, Section 2, for
Representatives and eligibility of members of Congress to run for the ratification of any future amendment to or revision of the said
the Constitutional Convention without forfeiture of their offices). Constitution.
The Election Code of 1971, in its Section 2, states that “all (3) After the draft Constitution was approved by the
elections of public officers except barrio officials and
156
plebiscites shall be conducted in the manner provided by this Code.”
113/326 114
156 SUPREME COURT REPORTS ANNOTATED that such separate submission was violative of Article XV, Section 1,
Javellana vs. The Executive Secretary of the Constitution, which contemplated that “all the amendments to
be proposed by the same Convention must be submitted to the
people in a single “election” or plebiscite.”* Thus a grammatical
Constitutional Convention on November 30, 1972 the said body
construction based on a singular, instead of plural, rendition of the
adopted Resolution No. 5843, proposing “to President Ferdinand E.
word “election” was considered a sufficient ground to rule out the
Marcos that a decree be issued calling a plebiscite for the ratification
plebiscite which had been called to ratify a proposed amendment in
of the proposed New Constitution on such appropriate date as he
accordance with the procedure and under all the safeguards provided
shall determine and providing for the necessary funds therefor.”
in the Election Law.
Pursuant to said Resolution the President issued Decree No. 73 on
In the cases now before Us what is at issue is not merely the
the same day, calling a plebiscite to be held on January 15, 1973, at
ratification of just one amendment, as in Tolentino vs. COMELEC,
which the proposed Constitution “shall be submitted to the people
but the ratification of an entire charter setting up a new form of
for ratification or rejection.” The Decree had eighteen (18) sections
government; and the issue has arisen not because of a disputed
in all, prescribing in detail the different steps to be taken to carry out
construction of one word or one provision in the 1935 Constitution
the process of ratification, such as: (a) publication of the proposed
but because no election or plebiscite in accordance with that
Constitution in English and Pilipino; (b) freedom of information and
Constitution and with the Election Code of 1971 was held for the
discussion; (c) registration of voters: (d) appointment of boards of
purpose of such ratification.
election inspectors and designation of watchers in each precinct; (e)
The Citizens Assemblies which purportedly ratified the draft
printing of official ballots; (f) manner of voting to insure freedom
Constitution were created by Presidential Decree No. 86 dated
and secrecy thereof; (g) canvass of plebiscite returns; and (h) in
December 31, 1972, “to broaden the base of citizen participation in
general, compliance with the provisions of the Election Code of
the democratic process and to afford ample opportunities for the
1971, with the Commission on Elections exercising its constitutional
citizenry to express their views on important national issues.” The
and statutory powers of supervision of the entire process.
Assemblies “shall consist of all persons who are residents of the
There can hardly be any doubt that in everybody’s view — from
barrio, district or ward for at least six months, fifteen years of age or
the framers of the 1935 Constitution through all the Congresses
over, citizens of the Philippines and who are registered in the lists of
since then to the 1971 Constitutional Convention — amendments to
Citizen Assembly members kept by the barrio, district or ward
the Constitution should be ratified in only one way, that is, in an
secretary.” By Presidential Decree No. 86-A, dated January 5, 1973,
election or plebiscite held in accordance with law and participated in
the Assemblies were convened for a referendum between January 10
only by qualified and duly registered voters. Indeed, so concerned
and 15, to “consider vital national issues now confronting the
was this Court with the importance and indispensability of
country, like the holding of the plebiscite on the new Constitution,
complying with the mandate of the (1935) Constitution in this
the continuation of martial rule, the convening of Congress on
respect that in the recent case of Tolentino vs. Commission on
January 22, 1973, and the holding of elections in November 1973.”
Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a
_______________
proposed amendment for ratification to a plebiscite to be held in
* The undersigned (Justice Querube C. Makalintal) who had reserved his right to
November 1971 was declared null and void. The amendment sought
do so, filed a separate dissenting opinion when the Court denied a motion for
to reduce the voting age from twenty-one to eighteen years and was
reconsideration, and voted in favor of the validity of the questioned Resolution. Mr.
approved by the Convention for submission to a plebiscite ahead of
Justice Enrique M. Fernando joined in the dissent.
and separately from other amendments still being or to be
considered by it, so as to enable the youth to be thus enfranchised to 158
participate in the plebiscite for the ratification of such other
amendments later. This Court held
157
VOL. 50, MARCH 31, 1973 157

Javellana vs. The Executive Secretary On January 5, 1973 the newspapers came out with a list of four
questions to be submitted to the Citizens Assemblies, the fourth one
being as follows: “How soon would you like plebiscite on the new
115/326 116
Constitution to be held?” It should be noted in this connection that seven (7) years from the approval of the New Constitution by the
the President had previously announced that he had ordered the Citizens Assemblies.
postponement of plebiscite which he had called for January 15, 1973 QUESTION No. 3
(Presidential Decree No. 73) for the ratification of the Constitution, If the Citizens Assemblies approve of the New Constitution, then the
and that he was considering two new dates for the purpose — new Constitution should be deemed ratified.
February 19 or March 5; that he had ordered that the registration of The vote of the Citizens Assemblies should already be considered the
voters (pursuant to Decree No. 73) be extended to accommodate plebiscite on the New Constitution.
new voters; and that copies of the new Constitution would be QUESTION No. 4
distributed in eight dialects the people. (Bulletin Today, December We are sick and tired of too frequent elections. We are fed up with
24, 1972.) politics, of so many debates and so much expenses.
On January 10, 1973 it was reported that one more question QUESTION No. 5
would be added to the original four which were to be submitted to Probably a period of at least seven (7) years moratorium on elections
the Citizens Assemblies. The question concerning plebiscite was will be enough for stability to be established in the country, for
reworded as follows: “Do you like the plebiscite to be held later?” reforms to take root and normalcy to return.
The implication, it may likewise be noted, was that the Assemblies QUESTION No. 6
should express their views as to the plebiscite should be held, not as We want President Marcos to continue with Martial Law. We want
to whether or not it should be held at all. him to exercise his powers with more authority. We want him to be
The next day, January 11, it was reported that six additional strong and firm so that he can accomplish all his reform program and
questions would be submitted, namely: establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a
“(1) Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interest? 160
“(2) Do you approve of the new Constitution?
“(3) Do you want a plebiscite to be called to ratify the new Constitution? 160 SUPREME COURT REPORTS ANNOTATED
“(4) Do you want the elections to be held in November, 1973 accordance
with the provisions of the 1935 Constitution?
“(5) If the elections would not be held, when do you want the next
revolutionary government along the lines of the new Constitution
elections to be called?
without the ad interim Assembly.”
“(6) Do you want martial law to continue? [Bulletin Today, January 11,
1973; emphasis supplied]. So it was that on January 11, 1973, the second day of the
purported referendum, the suggestion was broached, for the first
159
time, that the plebiscite should be done away with and a favorable
vote by the Assemblies deemed equivalent ratification. This was
VOL. 50, MARCH 31, 1973 159 done, not in the questionnaire itself, but in the suggested answer to
question No. 3. Strangely, however, it was not similarly suggested
that an unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner
in which the voting was conducted in the Citizen Assemblies,
assuming that such voting was held, was not within the intendment
Appended to the six additional questions above quoted were the of Article XV, Section 1, of the 1935 Constitution nor in accordance
suggested answers, thus: with the Election Code of 1971. The referendum can by no means be
“COMMENTS ON considered as the plebiscite contemplated in Section 2 of said Code
QUESTION No. 1 and in Article XVII, Section 16, of the draft Constitution itself, or as
In order to broaden the base of citizens’ participation in government. the election intended by Congress when it passed Resolution No. 2
QUESTION No. 2 on March 16, 1967 calling a Convention for the revision of the 1935
But we do not want the Ad Interim Assembly to be convoked. Or if it Constitution. The Citizens Assemblies were not limited to qualified,
is to be convened at all, it should not be done so until after at least let alone registered voters, but included all citizens from the age of
fifteen, and regardless of whether or not they were illiterates, feeble-
minded, or ex convicts* — these being the classes of persons
117/326 118
expressly disqualified from voting by Section 102 of the Election does not quite resolve the questions raised in these cases. Such a
Code. In short, the constitutional and statutory qualifications were finding, in our opinion, is on a matter which is essentially justiciable,
not considered in the determination of who should participate. No that is, within the power of this Court to inquire into. It imports
official ballots were used in the voting; it was done mostly by nothing more than a simple reading and application of the pertinent
acclamation or open show of hands. Secrecy, which is one of the provisions of the 1935 Constitution, of the Election Code and of
essential features of the election process, was not therefore other related laws and official acts. No question of wisdom or of
observed. No set of rules for counting the votes or of tabulating policy is involved. But from this finding it does not necessarily
them and follow that this Court may justifiably declare that the Constitution
has not become effective, and for that reason give due course to
_______________ these petitions or grant the writs herein prayed for. The effectivity of
* Thus by Presidential Decree No. 86 what the Constitutional Convention itself the said Constitution, in the final analysis, is the basic and
had proposed unsuccessfully as an amendment to the 1935 Constitution, reducing the
162
voting age from 21 to 18, but the submission of which to a plebiscite was declared
invalid by this Court in Tolentino vs. COMELEC, became a reality of an even more
far-reaching import — since fifteen-year olds were included in the Citizens 162 SUPREME COURT REPORTS ANNOTATED
Assemblies. Javellana vs. The Executive Secretary
161
ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the
VOL. 50, MARCH 31, 1973 161
competence of this Court, are relevant and unavoidable.
Javellana vs. The Executive Secretary Several theories have been advanced respectively by the parties.
The petitioners lay stress on the invalidity of the ratification process
reporting the figures was prescribed or followed. The Commission adopted by the Citizens Assemblies and on that premise would have
on Elections, which is the constitutional body charged with the this Court grant the reliefs they seek. The respondents represented
enforcement and administration of all laws relative to the conduct of by the Solicitor General, whose theory may be taken as the official
elections, took no part at all, either by way of supervision or in the position of the Government, challenge the jurisdiction of this Court
assessment of the results. on the ground that the questions raised in the petitions are political
It has been suggested that since according to Proclamation No. and therefore non-justiciable, and that in any case popular
1102 the overwhelming majority of all the members of the Citizens acquiescence in the new Constitution and the prospect of unsettling
Assemblies had voted for the adoption of the proposed Constitution acts done in reliance thereon should caution against interposition of
there was a substantial compliance with Article XV, Section 1, of the the power of judicial review. Respondents Gil J. Puyat and Jose Roy
1935 Constitution and with the Election Code of 1971. The (in L-36165), in their respective capacities as President and
suggestion misses the point entirely. It is of the essence of a valid President Pro Tempore of the Senate of the Philippines, and through
exercise of the right of suffrage that not only must a majority or their counsel, Senator Arturo Tolentino, likewise invoke the political
plurality of the voters carry the day but that the same must be duly question doctrine, but on a ground not concurred in by the Solicitor
ascertained in accordance with the procedure prescribed by law. In General, namely, that approval of the 1973 Constitution by the
other words the very existence of such majority or plurality depends people was made under a revolutionary government, in the course of
upon the manner of its ascertainment, and to conclude that it exists a successful political revolution, which was converted by act of the
even if it has not been ascertained according to law is simply to beg people to the present de jure government under the 1973
the issue, or to assume the very fact to be established. Otherwise no Constitution.”
election or plebiscite could be questioned for non-compliance with Heretofore, constitutional disputes which have come before this
the provisions of the Election Law as long as it is certified that a Court for adjudication proceeded on the assumption, conceded by
majority of the citizens had voted favorably or adversely on all, that the Constitution was in full force and effect, with the power
whatever it was that was submitted to them to vote upon. and authority of the entire Government behind it; and the task of this
However, a finding that the ratification of the draft Constitution Court was simply to determine whether or not the particular act or
by the Citizens Assemblies, as certified by the President in statute that was being challenged contravened some rule or mandate
Proclamation No. 1102, was not in accordance with the of that Constitution. The process employed was one of interpretation
constitutional and statutory procedure laid down for the purpose and synthesis. In the cases at bar there is no such assumption: the
119/326 120
Constitution (1935) has been derogated and its continued existence * According to the Solicitor General 92 Congressmen and 15 Senators (both
as well as the validity of the act of derogation is issue. The legal numbers constituting majorities) have expressed their option.
problem posed by the situation is aggravated by the fact that the
164
political arms of the Government — the Executive Departments and
the two Houses of Congress — have accepted the new Constitution
as effective: the former by organizing themselves and discharging 164 SUPREME COURT REPORTS ANNOTATED
their functions under it,
163

VOL. 50, MARCH 31, 1973 163 If indeed it be accepted that the Citizens Assemblies had ratified
the 1973 Constitution and that such ratification as well as the
Javellana vs. The Executive Secretary establishment of the government thereunder formed part of a
revolution, albeit peaceful, then the issue of whether or not that
and the latter by not convening on January 22, 1973 or at any time Constitution has become effective and, as necessary corollary,
thereafter, as ordained by the 1935 Constitution, and in the case of a whether or not the government legitimately functions under it
majority of the members by expressing their option to serve in the instead of under the 1935 Constitution, is political and therefore
Interim National Assembly in accordance with Article XVIII, non-judicial in nature. Under such a postulate what the people did in
Section 2, of the 1973 Constitution.* the Citizen Assemblies should be taken as an exercise of the
The theory advanced by Senator Tolentino, as counsel for ultimate sovereign power. If they had risen up in arms and by force
respondents Puyat and Roy, may be taken up and restated at same deposed the then existing government and set up a new government
length if only because it would constitute, if sustained, the most in its place, there could not be the least doubt that their act would be
convenient ground for the invocation of the political-question political and not subject to judicial review but only to the judgment
doctrine. In support of his theory, Senator Tolentino contends that of the same body politic act, in the context just set forth, is based on
after President Marcos declared martial law on September 21, 1972 realities. If a new government gains authority and dominance
(Proclamation No. 1081) he established a revolutionary government through force, it can be effectively challenged only by a stronger
when he issued General Order No. 1 the next day, wherein he force; judicial dictum can prevail against it. We do not see that
proclaimed “that I shall govern the nation and direct the operation of situation would be any different, as far as the doctrine of judicial
the entire government, including all its agencies and review is concerned, if no force had been resorted to and the people,
instrumentalities, in my capacity, and shall exercise all the powers in defiance of the existing Constitution but peacefully because of the
and prerogatives appurtenant and incident to my position as such absence of any appreciable opposition, ordained a new Constitution
Commander-in-Chief of all the Armed Forces of the Philippines.” and succeeded in having the government operate under it. Against
By this order, it is pointed out, the Commander-in-Chief of the such a reality there can be no adequate judicial relief; and so courts
Armed Forces assumed all the powers of government — executive, forbear to take cognizance of the question but leave it to be decided
legislative, and judicial; and thereafter proceeded to exercise such through political means.
powers by a series of Orders and Decrees which amounted to The logic of the political-question doctrine is illustrated in
legislative enactments not justified under martial law and, in some statement of the U.S. Supreme Court in a case* relied upon,
instances, trenched upon the domain of the judiciary, by removing curiously enough, by the Solicitor General, who disagrees with the
from its jurisdiction certain classes of cases, such as “those revolutionary government theory of Senator Tolentino. The case
involving the validity, legality, or constitutionality of Proclamation involved the issue of which of two opposing governments struggling
No. 1081, or of any decree, order or act issued, promulgated or for supremacy in the State of Rhode Island was the lawful one. The
performed by me or by my duly designated representative pursuant issue had previously come up in several other cases before the courts
thereto.” (General Order No. 3 as amended by General Order No. 3- of the State, which uniformly held that the inquiry belonged to the
A, dated September 24, 1972.) The ratification by the Citizens political power and not to the judicial. Commenting on the ruling
Assemblies, it is averred, was the culminating act of the revolution, thus arrived at, the U.S. Supreme Court said: “And if a State court
which thereupon converted the government into a de jure one under should
the 1973 Constitution.
_______________
_______________ * Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
121/326 122
165 to an indefinite date, the reasons for the postponement being, as

attributed to the President in the newspapers, that “there was little
time to campaign for or against ratification” (Daily Express, Dec. 22,
VOL. 50, MARCH 31, 1973 165
1972); that he would base his decision (as to the date, of the
Javellana vs. The Executive Secretary plebiscite) on the compliance by the Commission (on Elections) on
the publication requirement of the new Charter and on the position
enter upon the inquiry proposed in this case, and should come to the taken by national leaders” (Daily Express, Dec. 23, 1972); and that
conclusion that the government under which it acted had been put “the postponement would give us more time to debate on the merits
aside and displaced by an opposing government, it would cease to be of the Charter.” (Bulletin Today, Dec. 24, 1972.)
a court, and incapable of pronouncing a judicial decision upon the The circumstances above enumerated lead us to the conclusion
question it undertook to try. If it decides at all as a court, it that the Citizens Assemblies could not have understood the
necessarily affirms the existence and authority of the government referendum to be for the ratification of the Constitution, but only for
under which it is exercising judicial power.” In other words, since the expression of their views on a consultative basis. Indeed, if the
the court would have no choice but to decide in one way alone in expression of those views had been intended as an act of ratification
order to be able to decide at all, the question could not be considered (or of rejection as a logical corollary) — there would have been no
proper for judicial determination. need for the Katipunan ng mga Barangay to recommend that the
It should be noted that the above statement from Luther vs. Constitution should already be deemed ratified, for recommendation
Borden would be applicable in the cases at bar only on the premise imports recognition of some higher authority in whom the final
that the ratification of the Constitution was a revolutionary act and decision rests.
that the government now functioning it is the product of such But then the President, pursuant to such recommendation, did
revolution. However, we are not prepared to agree that the premise proclaim that the Constitution had been ratified and had come into
is justified. effect. The more relevant consideration, therefore, as far as we can
In the first, place, with specific reference to the questioned see, should be as to what the President had in mind in convening the
ratification, several significant circumstances may be noted. (1) The Citizens Assemblies, submitting the Constitution to them and
Citizens Assemblies were created, according to Presidential Decree proclaiming that the favorable expression of their views was an act
No. 86, “to broaden the base of citizen participation in the of ratification. In this respect subjective factors, which defy judicial
democratic process and to afford ample opportunities for the analysis and adjudication, are necessarily involved.
citizenry to express their views on important national issues.” (2) In positing the problem within an identifiable frame of reference
The President announced, according to the Daily Express of January we find no need to consider whether or not the regime established by
2, 1973, that “the referendum will be in the nature of a loose President Marcos since he declared martial law and under which the
consultation with the people.” (3) The question, as submitted to new Constitution was submitted to the Citizens Assemblies was a
them on the particular point at issue here, was “Do you approve revolutionary one. The pivotal question is rather whether or not the
of the Constitution?” (4) President Marcos, in proclaiming that the effectivity of the said Constitution by virtue of Presidential
Constitution had been ratified, stated as follows: “(S)ince the Proclamation No. 1102, upon the recommendation of the Katipunan
referendum results show that more than ninety-five (95) per cent of ng mga Barangay, was intended to be definite and irrevocable,
the members of the Barangays (Citizens Assemblies) are in favor of regardless of
the new Constitution, the Katipunan ng mga Barangay has strongly
167
recommended that the new Constitution should already be
deemed ratified by the Filipino people.” (5) There was not enough
time for the Citizens Assemblies to really familiarize themselves VOL. 50, MARCH 31, 1973 167
with the Constitution, much less with the many other subjects that
were submitted to them. In fact the plebiscite planned for January
15, 1973 under Presidential Decree No. 73 had been postponed
non-compliance with the pertinent constitutional and statutory
166 provisions prescribing the procedure for ratification. We must
confess that after considering all the available evidence and all the
relevant circumstances we have found no reasonably reliable answer
to the question. On one hand we read, for instance, the following
Javellana vs. The Executive Secretary public statements of the President:
123/326 124
Speaking about the proclamation of martial law, he said: Government,” but in the next breath added: “... if we do ratify the
Constitution, how can we speak of Revolutionary Government?
“I reiterate what I have said in the past: there is no turning back for our They cannot be compatible ...” “(I)t is my feeling,” he said, “that the
people. Citizens’ Assemblies which submitted this recommendation merely
“We have committed ourselves to this revolution. We have pledged to it sought articulate their impatience with the status quo that has
our future, our fortunes, our lives, our destiny. We have burned our bridges brought about anarchy, confusion and misery to the masses ...” The
behind us. Let no man misunderstand the strength of our resolution.” (A only alternatives which the President clearly implied by the
Report to the Nation, Jan. 7, 1973.) foregoing statements were the ratification of the new Constitution
and the establishment of a revolutionary government, the latter being
On the occasion of the signing of Proclamation No. 1102 on
unnecessary, in his opinion, because precisely the Constitution had
January 17, 1973, the President said the following, among other
been ratified. The third obvious alternative was entirely ruled out,
things:
namely, a return to the 1935 Constitution, for it was the status
“... We can, perhaps delimit the power of the people to speak on legal quo under that Constitution that had caused “anarchy, confusion and
matters, on justiciable matters, on matters that may come before the experts misery.” The message seems clear: rather than return to such status
and interpreters of the law. But we cannot disqualify the people from quo, he would heed the recommendation of the Citizens’ Assemblies
speaking on what we and the people consider purely political matters to establish a revolutionary government, because that would be the
especially those that affect the fundamental law of the land. only other way to carry out the reforms he had envisioned and
“... The political questions that were presented to the people are exactly initiated — reforms which, in all fairness and honesty, must be given
those that refer to the form of government which the people want ... The credit for the improved quality of life in its many aspects, except
implications of disregarding the people’s will are too awesome to be even only in the field of civil liberties.
considered. For if any power in government should even dare to disregard If there is any significance, both explicit and implicit, and
the people’s will there would be valid ground for revolt. certainly unmistakable, in the foregoing pronouncements, it is that
“... Let it be known to everybody that the people have spoken and they the step taken in connection with the ratification of the Constitution
will no longer tolerate any attempt to undermine the stability of their was meant to be irreversible, and that nothing
Republic; they will rise up in arms not in revolt against the Republic but in
169
protection of the Republic which they have installed. It is quite clear when
the people say, we ratify the Constitution, that they mean they will not
discard, the Constitution.” VOL. 50, MARCH 31, 1973 169
168
anyone could say would make the least difference. And if this is a
correct and accurate assessment of the situation, then we would say
Javellana vs. The Executive Secretary that since it has been brought about by political action and is now
maintained by the government that is in undisputed authority and
dominance, the matter lies beyond the power of judicial review.
On January 19, 1973 the Daily Express published statement of On the other hand, by avowals no less significant if not so
the President made the day before, from which the following portion emphatic in terms, President Marcos has professed fealty to the
is quoted: Constitution. In “Today’s Revolution: Democracy” he says:
“... the times are too grave and the stakes too high for us permit the “I believe, therefore, in the necessity of Revolution as an instrument of
customary concessions to traditional democratic process to hold back our individual and social change ... but that in a democratic society, revolution is
people’s clear and unequivocal resolve and mandate to meet and overcome of necessity, constitutional, peaceful, and legal.”
the extraordinary challenges presented by these extraordinary times.”
In his TV address of September 23, 1972, President Marcos told
On the same occasion of the signing of Proclamation No. 1102 the nation:
the President made pointed reference to “the demand of some of our
“I have proclaimed martial law in accordance with the powers vested in
citizens ... that when all other measures should fail, that the
the President by the Constitution of the Philippines.
President be directed to organize and establish a Revolutionary
“xxx xxx xxx
125/326 126
“I repeat, this is not a military takeover of civil government functions. that there is no turning back, that what the people recommended
The Government of the Republic of the Philippines which was established through the Citizens Assemblies, as they were reported to him,
by our people in 1946 continues. demand that the action he took pursuant thereto be final and
“xxx xxx xxx irrevocable, then judicial review is out of the question.
“I assure you that I am utilizing this power vested in me by the In articulating our view that the procedure of ratification
Constitution to save the Republic and reform our society...
“I have had to use this constitutional power in order that we may not 171
completely lose the civil rights and freedom which we cherish...

“... We are against the wall. We must now defend the Republic with the VOL. 50, MARCH 31, 1973 171
stronger powers of the Constitution.”
(Vital Documents, pp. 1-12; emphasis supplied).
170 that was followed was not in accordance with the 1935 Constitution
and related statutes, we have discharged our sworn duty as we
conceive it to be. The President should now perhaps decide, if he has
not already decided, whether adherence to such procedure is weighty
Javellana vs. The Executive Secretary enough a consideration, if only to dispel any cloud of doubt that may
now and in the future shroud the nation’s Charter.
In the deliberations of this Court one of the issues formulated for
In the report of an interview granted by the President to the resolution is whether or not the new Constitution, since its
Newsweek Magazine (published in the issue of January 29, 1973), submission to the Citizens Assemblies, has found acceptance among
the following appears: the people, such issue being related to the political question theory
propounded by the respondents. We have not tarried on the point at
“xxx xxx xxx all since we find no reliable basis on which to form a judgment.
“Q. Now that you have gotten off the constitutional track, won’t you be Under a regime of martial law, with the free expression of opinions
in serious trouble if you run into critical problems with your programs? through the usual media vehicles restricted, we have no means of
“A. I have never gotten off the constitutional track. Everything I am knowing, to the point of judicial certainty, whether the people have
doing is in accordance with the 1935 Constitution. The only thing is that accepted the Constitution. In any event, we do not find the issue
instead of 18-year-olds voting, we have allowed 15-year-olds the right to decisive insofar as our vote in these cases is concerned. To interpret
vote. But the 15-year-olds of today are high-school students, if not the Constitution — that is judicial. That the Constitution should be
graduates, and they are better informed than my contemporaries at that age. deemed in effect because of popular acquiescence — that is
On the matter of whether it is constitutional to proclaim martial law, it is political, and therefore beyond the domain of judicial review.
constitutional because the Constitution provides for it in the event of We therefore vote not to give due course to the instant petitions.
invasion, insurrection, rebellion or immediate danger thereof. We may SEPARATE OPINION
quarrel about whether what we have gone through is sufficient cause to BARREDO, J.:
proclaim martial law but at the very least there is a danger of rebellion As far as I am concerned, I regard the present petitions as no
because so many of our soldiers have been killed. You must remember this more than mere reiterations of the Supplemental Petitions filed by
(martial law provision) was lifted from the American legislation that was the Counsel Lorenzo M. Tañada on January 15, 1973 in the so called
fundamental law of our country. Plebiscite Cases decided by this Court on January 22, 1978. Of
“xxx xxx xxx.” course, there are amplifications of some of the grounds previously
alleged and in the course of the unprecedented five-day hearing that
In the light of this seeming ambivalence, the choice of what
was held from February 12 to 16 last, more extensive and
course of action to pursue belongs to the President. We have earlier
illuminating arguments were
made reference to subjective factors on which this Court, to our
mind, is in no position to pass judgment. Among them is the 172
President’s own assessment of the will of the people as expressed
through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and
economic reforms he has started or envisioned. If he should decide Javellana vs. The Executive Secretary
127/326 128
heard by Us, but, in my estimation, and with due recognition of the result of the referendum may be construed as a compliance with the
sincerity, brilliance and eloquence of counsels, nothing more cogent substantiality of Article XV of the 1935 Constitution.
and compelling than what had already been previously presented by I
Counsel Tañada is before Us now. Accordingly, I cannot see any The facts that gave rise to these proceedings are historical and
reason why I should change the position I took in regard to the well known. Generally, they may be taken judicial notice of. They
earlier cases. I reiterate, therefore, the vote I cast when these revolve around the purported ratification of the Constitution of 1973
petitions were initially considered by the Court; namely, to dismiss declared in Proclamation 1102 issued by the President on January
them. 17, 1973.
In view, however, of the transcendental importance of the issues Pursuant to a joint resolution of the Congress sitting as a
before the Court and the significance to our people and in history of constituent assembly approved on March 16, 1967, delegates to a
the individual stands of the members of the Court in relation to said constitutional convention to propose amendments to the Constitution
issues and to the final outcome of these cases, and considering that I of 1935 were elected in accordance with the implementing law,
reserved before the filing of a more extended opinion, I will take this Republic Act 6132, on November 10, 1970. Known as the
opportunity to explain further why I hold that the 1973 Constitution Constitutional Convention of 1971, the assembly began its sessions
is already in force, if only to clarify that apart from the people’s right on June 1, 1971. After encountering a lot of difficulties, due to bitter
of revolution to which I made pointed reference in my previous rivalries over important positions and committees and an
opinion, I can see now, after further reflection, that the vote of the incomprehensible fear of overconcentrating powers in their officers,
people in the referendum in the Citizens Assemblies held on January the delegates went about their work in comparatively slow pace, and
10 to 15, 1973, upon the result of which Proclamation 1102 is based, by the third quarter of 1972 had finished deliberations and second-
may be viewed more importantly as a political act than as a purely reading voting only on an insignificant number of proposals — until
legal one with the result that such vote to consider the 1973 September 21, 1972, when the President, not altogether
Constitution as ratified without the necessity of holding a plebiscite unexpectedly, yet abruptly, issued Proclamation 1081 declaring
in the form followed in the previous ratification plebiscites in 1935 martial law throughout the country. An attempt was made to have
of the Constitution itself, 1937 of women’s suffrage, 1939 of the the Convention recessed until after the lifting of martial law, and not
amendments to the Ordinance Appended to the Constitution, 1940 of long after the motion of Delegate Kalaw to such effect was turned
the re-election of the President, the bicameral legislature and the down, the activities within the assembly shifted to high gear. As if
Commission on Elections, 1947 of the parity amendment and 1967, unmindful of the arrest and continued detention of several of its
rejecting the proposed increase in the members of the House of members, the convention gathered swift momentum in its work, and
Representatives and eligibility of members of Congress to the on November 30, 1972, it approved by overwhelming vote the draft
Constitutional Convention, may be deemed as a valid ratification of a complete constitution, instead of mere specific amendments of
substantially in compliance with the basic intent of Article XV of particular portions of the Constitution of 1935. Needless to say,
the 1935 Constitution. If indeed this explanation may be considered before martial law was declared, there was full and unlimited
as a modification of my rationalization then, I wish to emphasize coverage of the workings in the convention by the mass media. At
that my position as to the fundamental issue regarding the the same
enforceability of the new Constitution is even firmer now than ever
174
before. As I shall elucidate anon, paramount considerations of
national import have led me to the conviction that the best interests
of all concerned would be best served by the Supreme Court holding 174 SUPREME COURT REPORTS ANNOTATED
that the 1973
173
time, public debates and discussions on various aspects of proposed
VOL. 50, MARCH 31, 1973 173 amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution
Javellana vs. The Executive Secretary No. 5843 proposing “to President Ferdinand Marcos that a decree be
issued calling a plebiscite for ratification of the proposed new
Constitution is now in force, not necessarily as a consequence of the Constitution on appropriate date as he shall determine and providing
revolutionary concept previously suggested by me, but upon the for necessary funds therefor.” Acting under this authority, December
ground that as a political, more than as a legal, act of the people, the 1, 1972, the President issued Presidential Decree No. 73 submitting
129/326 130
the draft constitution for ratification by the people at a plebiscite set national issues;
for January 15, 1973. This order contained provisions more or less WHEREAS, such barangays (citizens assemblies) desire that they be
similar to the plebiscite laws passed by Congress relative to the past given legal status and due recognition as constituting the genuine, legitimate
plebiscites held in connection with previous proposed amendments. and valid expression of the popular will; and
In connection with the plebiscite thus contemplated, General WHEREAS, the people would like the citizens assemblies to conduct
Order No. 17 was issued ordering and enjoining the authorities to immediately a referendum on certain specified questions such as the
allow and encourage public and free discussions on proposed ratification of the new Constitution, continuance of martial law, the
constitution. Not only this, subsequently, under date of December convening of Congress on January 22, 1973, and the elections in November
17, 1972, the President ordered the suspension the effects of martial 1973 pursuant to the 1935 Constitution.
law and lifted the suspension of privilege of the writ of habeas NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
corpus insofar as activities connected with the ratification of the Philippines, by virtue of the powers vested in me by the Constitution as
draft constitution were concerned. These two orders were not, Commander-in-Chief of all Armed Forces of the Philippines, do hereby
however, to last very long. On January 7, 1973, the President, declare as part of the law of the land the following:
invoking information related to him that the area of public debate 1. The present barangays (citizens assemblies) are created under
and discussion had opened by his previous orders was being taken Presidential Decree No. 86 dated December 31, 1972, shall constitute the
advantage of by subversive elements to defeat the purposes for base for citizen participation in governmental affairs and their collective
which they were issued and to foment public confusion, withdrew views shall be considered in the formulation of national policies or
said orders and enjoined full and stricter implementation of martial programs and, wherever practicable, shall be translated into concrete and
law. specific decision;
In the meantime, the President had issued on December 3, 1972 2. Such barangays (citizens assemblies) shall consider vital national
Presidential Decree No. 86 creating Citizens Assemblies “so as to issues now confronting the country, like the holding of the plebiscite on the
afford ample opportunities for the citizenry to express their views on new Constitution, the continuation of martial rule, the convening of
important national issues” and one of the questions presented to said Congress on January 22, 1973, and the holding of elections in November
assemblies was: “Do you like the plebiscite on the proposed 1973, and others in the future, which shall
Constitution to be held later” So, the same order of January 7, 1973,
176
General Order No. 20, the President ordered, “that the plebiscite
scheduled to be held January 15, 1973, be postponed until further
notice.” 176 SUPREME COURT REPORTS ANNOTATED
175
serve as guide or basis for action or decision by the national government;

VOL. 50, MARCH 31, 1973 175 3. The barangays (citizens assemblies) shall conduct between January 10
and 15, 1973, a referendum on important national issues, including those
specified in paragraph 2 hereof, and submit results thereof to the
Department of Local Governments Community Development immediately
thereafter, pursuant to express will of the people as reflected in the reports
In the meanwhile also, on January 5, 1973, the President issued gathered from the many thousands of barangays (citizens assemblies)
Presidential Decree, No. 86-A providing as follows: throughout the country.
“PRESIDENTIAL DECREE NO. 86-A 4. This Decree shall take effect immediately.
STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS Done in the City of Manila, this 5th day of January, in the year of Our
(CITIZENS ASSEMBLIES) Lord, nineteen hundred and seventy three.
WHEREAS, on the basis of preliminary and initial reports from the field
And on January 7, 1973, this was followed by Presidential Decree
as gathered from barangays (citizens assemblies) that have so far been
No. 86-B reading thus:
established, the people would like to decide for themselves questions or
issues, both local and national, affecting their day-to-day lives and their “PRESIDENTIAL DECREE NO. 86-B
future; DEFINING FURTHER THE ROLE OF BARANGAYS
WHEREAS, the barangays (citizens assemblies) would like themselves (CITIZENS ASSEMBLIES)
to be the vehicle for expressing the views of the people on important
131/326 132
WHEREAS, since their creation pursuant to Presidential Decree No. 86 178

dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit them for resolution 178 SUPREME COURT REPORTS ANNOTATED
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the
ratification of the Constitution proposed by the 1971 Constitutional

Convention;
“(2) Do you approve of the New Constitution?
WHEREAS, on the basis of the said petitions, it is evident that the
“(3) Do you want a plebiscite to be called to ratify the new Constitution?
people believe that the submission of the proposed Constitution to the
“(4) Do you want the elections to be held in November, 1973 in
Citizens Assemblies or Barangays should be taken as a plebiscite in itself in
accordance with the provisions of the 1935 Constitution?
view of the fact that freedom of debate has always been limited to the
“(5) If the elections would not be held, when do you want it to be called?
leadership in political, economic and social fields, and that it is now
“(6) Do you want martial law to continue?”
necessary to bring this down to the level of the people themselves through
the Barangays or Citizens Assemblies; It is not seriously denied that together with the question the
177
voters were furnished “comments” on the said questions more or
less suggestive of the answer desired. It may assumed that the said
“comments” came from official sources, albeit specifically
VOL. 50, MARCH 31, 1973 177
unidentified. As petitioners point out, the most relevant of these
Javellana vs. The Executive Secretary “comments” were the following:
“COMMENTS ON
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the “xxx xxx xxx
Philippines, by virtue of the powers in me vested by the Constitution, do “QUESTION No. 2
hereby order that important national issues shall from time to time be But we do not want the Ad Interim Assembly to be convoked. Or if it
referred to the Barangays (Citizens Assemblies) for resolution in accordance is to be convened at all, it should not be done so until after at least
with Presidential Decree No. 86-A dated January 5, 1973 and that the initial seven (7) years from the approval of the New Constitution by the
referendum shall include the matter of ratification of the Constitution Citizens Assemblies.
proposed by the 1971 Constitutional Convention. “QUESTION No. 3
The Secretary of the Department of Local Governments and Community The vote of the Citizens Assemblies should already be considered the
Development shall insure the implementation of this Order. plebiscite on the New Constitution.
Done in the City of Manila, this 7th day of January in the year of Our If the Citizens Assemblies approve of the new Constitution then the new
Lord, nineteen hundred and seventy-three." Constitution should be deemed ratified.”
And so it was that by January 10, 1973, when the Citizens The Solicitor General claims, and there seems to be no
Assemblies thus created started the referendum which was held from
179
said date to January 15, 1973, the following questions were
submitted to them:
VOL. 50, MARCH 31, 1973 179
“(1) Do you like the New Society?
“(2) Do you like the reforms under martial law? Javellana vs. The Executive Secretary
“(3) Do you like Congress again to hold sessions?
“(4) Do you like the plebiscite to be held later? showing otherwise, that the results of the referendum were
“(5) Do you like the way President Marcos is running the affairs of the determined in the following manner:
government?.”
“Thereafter, the results of the voting were collated and sent to the
but on January 11, 1973, six questions were added as follows: Department of Local Governments. The transmission of the results was
made by telegram, telephone, the provincial government SSB System in
“(1) Do you approve of the citizens assemblies as the base of popular each province connecting all towns; the SSB communication of the PACD
government to decide issues of national interests? connecting most provinces; the Department of Public Information Network
133/326 134
System; the Weather Bureau Communication System connecting all seven hundred forty-three thousand eight hundred sixty nine (743,869) who
provincial capitals and the National Civil Defense Network connecting all voted for its rejection; while on the question as to whether or not the people
provincial capitals. The certificates of results were then flown to Manila to would still like a plebiscite to be called to ratify the new Constitution
confirm the previous figures received by the aforementioned means of fourteen million two hundred ninety-eight thousand eight hundred fourteen
transmission. The certificates of results tallied with the previous figures (14,298,814) answered that there was no need for plebiscite and that the
taken with the exception of few cases of clerical errors. vote of the Barangays (Citizens Assemblies) should be considered as a vote
“The Department adopted a system of regionalizing the receiving section in a plebiscite;
of the Citizens Assemblies operation at the Department wherein the identity WHEREAS, since the referendum results show that more than ninety-
of the barrio and the province was immediately given to a staff in charge of five (95) percent of the members of the Barangays (Citizen Assemblies) are
each region. Every afternoon at 2:00 o’clock, the 11 regions submitted the in favor of the New Constitution, the Katipunan ng Mga Barangay has
figures they received from the field to the central committee to tabulate the strongly recommended that the new Constitution should already be deemed
returns. The last figures were tabulated at 12 midnight of January 16, 1973 ratified by the Filipino people;
and early morning of January 17, 1973 and were then communicated to the NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
President by the Department of Local Governments.” Philippines, by virtue of the powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution proposed by the nineteen
The development culminated in the issuance by the President of hundred and seventy-one (1971) Constitutional Convention has been ratified
Proclamation 1102 on January 17, 1973. Said proclamation reads: by an overwhelmingly majority of all of the votes cast by the members of all
the Barangays (Citizens Assemblies) throughout the Philippines, and has
“PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY
thereby come into effect.
THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
THE 1971 CONSTITUTIONAL CONVENTION.
seal of the Republic of the Philippines to be affixed.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-
one Constitutional Convention is subject to ratification by the Filipino 181
people;
WHEREAS, Citizens Assemblies were created in barrios in
VOL. 50, MARCH 31, 1973 181
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 6, dated December 31, 1972, composed of all Javellana vs. The Executive Secretary
180
Done in the City of Manila, this 17th day of January, in the year of Our
180 SUPREME COURT REPORTS ANNOTATED 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 Cases, ten in number,
persons who are residents of the barrio, district or ward for at least six which were filed by different petitioners during the first half of
months, fifteen years of age or over, citizens of the Philippines and who are December 1972.1 Their common target then was Presidential Decree
registered in the list of Citizen Assembly members kept by the barrio, No. 73, but before the said cases could be decided, the series of
district or ward secretary; moves tending in effect to make them moot and academic insofar as
WHEREAS, the said Citizens Assemblies were establish precisely to they referred exclusively to the said Presidential Decree began to
broaden the base of citizen participation in the democratic process and to take shape upon the issuance of Presidential Decree No. 86-A,
afford ample opportunity for the citizen to express their views on important quoted above. And when Presidential Decree No. 86-B, also above
national issues; quoted, was issued and the six additional questions which were first
WHEREAS, responding to the clamor of the people an pursuant to publicized on January 11, 1973 were known, together with the
Presidential Decree No. 86-A, dated January 5, 1973, the following “comments,” petitioners sensed that a new and unorthodox
questions were posed before Citizens’ Assemblies or Barangays: Do you procedure was being adopted to secure approval by the people of the
approve of the New Constitution? Do you still want a plebiscite to be called new Constitution, hence Counsel Tañada, not being satisfied with the
to ratify the new Constitution? fate of his urgent motion for early decision of the above ten cases
WHEREAS, fourteen million nine hundred seventy-six thousand five dated January 12, 1973, filed on January 15, 1973, his supplemental
hundred sixty one (14,976,561) members of all the Barangays (Citizens motion seeking the prohibition against and injunction of the
Assemblies) voted for the adoption of the proposed Constitution, as against proceedings going on. Principal objective was to prevent that the
135/326 136
President be furnished the report of the results of the referendum and At the threshold, I find myself confronted by a matter which,
thereby disable him from carrying out what petitioners were although believed to be inconsequential by my learned brethren, I
apprehensively foreseeing would be done — the issuance of some strongly feel needs special attention. I refer to the point raised by
kind of proclamation, order or decree, declaring that the new Counsel Arturo M. Tolentino for respondent Gil J. Puyat and Jose
Constitution had been ratified. Reacting swiftly, the Court resolved Roy, who have been sued as President and President Pro Tempore of
on the same day, January 15, which was Monday, to consider the the Senate, to the effect that change in the composition of the
supplemental motion as a supplemental petition and to require the Supreme Court provided for the 1973 Constitution, from the 11-man
tribunal under the 1935 Constitution to a 15-man Court, makes of
_______________ these cases which were filed after January 17, 1973 the date when
1 Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad Proclamation 1102 declared the new Constitution as ratified,
vs. Comelec, L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et political nature and beyond our jurisdiction. The main consideration
al., L-35940, January 22, 1973; Eddie B. Monteclaro vs. Comelec, et al., L-35941, submitted in this connection is that inasmuch as the number votes
January 22, 1973; Sedfrey A. Ordoñez, et al. vs. The National Treasurer of the needed for a decision of this Court has been increased
Philippines, et al., L-35942, January 22, 1973; Vidal Tan, et al. vs. Comelec, et al., L-
183
35948, January 22, 1973; Jose W. Diokno, et al., vs. Comelec, L-35953, January 22,
1973; Jacinto Jimenez vs. Comelec, et al., L-35961, January 22, 1973; Raul M.
Gonzales vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs. VOL. 50, MARCH 31, 1973 183
Comelec, et al., L-35979, January 22, 1973. Javellana vs. The Executive Secretary
182
from six to eight in ordinary cases and from eight to ten for the
declaration of unconstitutionality of a treaty, executive agreement 2
or law, the Court would have to resolve first as a prejudicial question
Javellana vs. The Executive Secretary whether the Court is acting in these cases as the 15-man or the 11-
man Court, in which event, it would be faced with the dilemma that
respondents to answer the same the next Wednesday, January 17th, if it acts either as the former or as the latter, it would be prejudging
before the hour of the hearing of the petition which set for 9:30 the very matter in issue one way or the other, and, in effect, it would
o’clock in the morning of that day. The details what happened that be choosing between two constitutions, which is a political
morning form part of the recital of facts the decision rendered by determination not within the Court’s competence.
this Court in the ten cases on January 22, 1973 and need not be While I agree that the problem is at first blush rather involved, I
repeated here. Suffice it to state no that before the hearing could be do not share the view that the premises laid down by counsel
closed and while Counsel Tañada was still insisting on his prayer for necessarily preclude this Court from taking a definite stand on
preliminary injunction or restraining order, the Secretary of Justice whether the Court is acting in these cases as the 15-Man or the 11-
arrived and personally handed to the Chief Justice a copy man Court. I feel very strongly that the issue should not be ignored
Proclamation 1102 which had been issued at about 11:00 o’clock or dodged, if only to make the world know that the Supreme Court
that same morning. In other words, the valiant and persistent efforts of the Philippines is never incognizant of the capacity in which it is
of petitioners and their counsels were overtaken by adverse acting, much less lacking in courage or wisdom to resolve an issue
developments, and in the mind of the majority of the members of the that relates directly to its own composition. What a disgrace it would
Court, the cases had become academic. For my part, I took the view be to admit that this Supreme Court does not know, to use a common
that even on the basis of the supplemental petition and the answer apt expression, whether it is fish or fowl. Withal, scholars and
thereto filed by respondents, the Court could already decide on the researchers who might go over our records in the future will
fundamental issue of the validity Proclamation 1102, as Justices inevitably examine minutely how each of us voted and upon what
Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel considerations we have individually acted, and, indeed, doubts may
Tañada’s pleading and argument had anticipated its issuance, but the arise as to whether or not, despite the general result we might
majority felt it was not ready to resolve the matter, for lack, announce, there had been the requisite number of votes for a valid
according them, of full ventilation, and so, the decision reserved collegiate action.
petitioners the filing of the “appropriate” cases, evidently, the For instance, it may be argued that the present cases do not
present ones. involve an issue of unconstitutionality, hence, if we are acting as the
II 11-man Court, only six votes would suffice to declare Proclamation
137/326 138
1102 ineffective, and if upon analysis of our respective opinions it there Contrary to counsel’s contention, there is here no prejudgment
should be inferable therefrom that six of us have considered the for or against any of the two constitutions. The truth of matter is
matter before the Court as justiciable and at the same time have simply that in the normal and logical conduct governmental
found the procedure of ratification adopted in Presidential Decrees activities, it is neither practical nor wise to defer the course of any
86-A and 86-B and related orders of the President as not being in action until after the courts have ascertained
conformity with Article
185
_______________
2 Executive Agreements are not included in the corresponding provision of the VOL. 50, MARCH 31, 1973 185
1935 Constitution. Javellana vs. The Executive Secretary
184
their legality, not only because if that were to be the rule, the
functioning of government would correspondingly be undesirably
hesitative and cumbersome, but more importantly, because the
Javellana vs. The Executive Secretary courts must at the first instance accord due respect to the acts of the
other departments, as otherwise, the smooth running of the
XV of the old Constitution, a cloud would exist as to efficacy of the government would have to depend entirely on the unanimity of
dispositive portion of Our decision dismiss these cases, even if we opinions among all its departments, which is hardly possible, unless
have it understood that by the vote of justices in favor of such it is assumed that only the judges have the exclusive prerogative of
dismissal, We intended to mean the implementation or enforcement making and enforcing the law, aside from being its sole interpreter,
of the new Constitution now being done could continue. which is contrary to all norms of juridical and political thinking. To
Be that as it may, I am against leaving such an important point my knowledge, there is yet no country in the world that has
open to speculation. By nature I am averse to ambiguity and recognized judicial supremacy as its basic governmental principle,
equivocation and as a member of the Supreme Court, last thing I no matter how desirable we might believe the idea to be.
should knowingly countenance is uncertainty as to the juridical Indeed, it is not hard to visualize the difficulty if not absurdity of
significance of any decision of the Court which is precisely being Our acting on the assumption that this Court is still functioning
looked upon as the haven in which doubts are supposed to be under the 1935 Constitution. It is undeniable that the whole
authoritatively dispelled. Besides, from very nature of things, one government, including the provincial, municipal and barrio units and
thing is indubitably beyond dispute — we cannot act in both not excluding the lower courts up to the Court of Appeals, is
capacities of a 15-man and an 11-man Court at the same time, in like operating under the 1973 Constitution. Almost daily, presidential
manner that it is inconceivable that the 1935 and 1973 Constitution orders and decrees of the most legislative character affecting
can be considered by Us both in force. Our inescapable duty is to practically every aspect of governmental and private activity as well
make a choice between them, according to what law and other as the relations between the government and the citizenry are
considerations inherent to our function dictate. I cannot bear the pouring out from Malacañang under the authority of said
thought that someone may someday say that the Supreme Court of Constitution. On the other hand, taxes are being exacted and
the Philippines once decided a case without knowing the basis of its penalties in connection therewith are being imposed under said
author to act or that it was ever wanting in judicial courage to define orders and decrees. Obligations have been contracted and business
the same. and industrial plans have been and are being projected pursuant to
Accordingly, with full consciousness of my limitations but them. Displacements of public officials and employees in big
compelled by my sense of duty and propriety to straighten out this numbers are going on in obedience to them. For the ten justices of
grave of issue touching on the capacity in which the Court acting in the Supreme Court to constitute an island of resistance in the midst
these cases, I hold that we have no alternative but adopt in the of these developments, which even unreasoning obstinacy cannot
present situation the orthodox rule that when validity of an act or ignore, much less impede, is unimaginable, let alone the absurd and
law is challenged as being repugnant constitutional mandate, the complicated consequences such a position entails in the internal
same is allowed to have effect until the Supreme Court rules that it is workings within the judiciary amount its different components, what
unconstitutional. Stated differently, We have to proceed on the with the lower courts considering such orders and decrees as
assumption that the new Constitution is in force and that We are forming part of the law of the land in making their orders and
acting in these cases as the 15-man Supreme Court provided for decisions, whereas the
139/326 140
186 republicanism as the basic governmental tenet, the institutional

changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic
features are somewhat different in certain respects. One cannot but
Javellana vs. The Executive Secretary note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity
Supreme Court is holding, as it were, their effectivity at bay if it is clauses, involving as they do the statement of general principles, the
not being indifferent to or ignoring them. citizenship and suffrage qualifications, the articles on the form of
It is suggested that the President, being a man of law, committed government, the judiciary provisions, the spelling out of the duties
to abide by the decision of the Supreme Court, and if the Court feels and responsibilities not only of citizens but also of officers of the
that it cannot in the meantime consider the enforcement of the new government and the provisions on the national economy as well as
Constitution, he can wait for its decision. Accepting the truth of this the patrimony of the nation, not to mention the distinctive features of
assertion, it does necessarily follow that by this attitude of the the general provisions. What is more, the transitory provisions
President, considers the Supreme Court as still operating under the notably depart from traditional and orthodox views in that, in
Constitution. Quite on the contrary, it is a fact that he has given general, the powers of government during the interim period are
instructions for the payment of the justices in accordance with the more or less concentrated in the President, to the extent that the
rate fixed in the New Constitution. Not only that, official alter ego, continuation or discontinuance of what is now practically a one-
the Secretary of Justice, has been shoving this Court, since January man-rule, is even left to his discretion. Notably, the express
18, 1973, all matters related to the administrative supervision of the ratification of all proclamations, orders, decrees and acts previously
lower courts which by the new charter has been transferred from the issued or done by the President, obviously meant to encompass
Department of Justice to the Supreme Court, and as far as I know, those issued during martial law, is a commitment to the concept of
President has not countermanded the Secretary’s steps in that martial law powers being implemented by President Marcos, in
direction. That, on the other hand, the President has not augmented defiance of traditional views and prevailing jurisprudence, to the
the justices of the Court to complete the prescribed number of fifteen effect that the Executive’s power of legislation during a regime of
is, in my appraisal, of no consequence considering that with the martial law is all inclusive and is not limited to the matters
presence of ten justices who are the Court now, there is a working demanded by military necessity. In other words, the new constitution
quorum, and the addition of new justices cannot in anyway affect the unlike any other constitution countenances the institution by the
voting on the constitutional questions now before Us because, while executive of reforms which normally is the exclusive attribute of the
there sufficient justices to declare by their unanimous vote illegality legislature.
of Proclamation 1102, the votes of the justices to added would only Withal, the best proofs that by its expressed and implied intent,
be committed to upholding the same, since they cannot by any the Constitution of 1973 is a new one, are that (1) Section 16 of its
standard be expected to vote against legality of the very Constitution Article XVII which provides that this constitution shall “supersede
under which they would be appointed. the Constitution of nineteen hundred and thirty-five and all
Moreover, what makes the premise of presumptive valid amendments thereto” and (2) its transitory provisions expressly
preferable and, even imperative, is that We are dealing here with a continue the effectivity of existing laws, offices and courts as well as
whole constitution that radically modifies or alters only the form of the tenure of all incumbent officials, not adversely affected by it,
our government from presidential parliamentary but also other which would
constitutionally institutions vitally affecting all levels of society. It
188
is, to mind, unrealistic to insist on that, fundamentally, the 1973
Constitution is the same 1935 Constitution, with a few
187
VOL. 50, MARCH 31, 1973 187

have been unnecessary if the old constitution were being merely
Javellana vs. The Executive Secretary amended.
The new Constitution, in its Section 10, Article XVII, provides
improvements. A cursory perusal of the former should convince that “(T)he incumbent members of the Judiciary (which include the
anyone that it is in essence a new one. While it does retain Chief Justice and Associate Justices of Supreme Court) may
141/326 142
continue in office (under the constitution) until they reach the age of submission because martial law per se creates constructive duress
seventy years, etc.” By virtue of the presumptive validity of the new which deprives the voters of the complete freedom needed for the
charter, all of form part of the 15-man-Court provided for therein exercise of their right of choice and actually, there was neither time
correspondingly, We have in legal contemplation, ceased in the nor opportunity for real debate before they voted.
meanwhile to be members of the 11-man-Court in the 1935 On the other hand, the position of the Solicitor General as
Constitution. Should the Court finally decide that the Constitution is counsel for the respondents is that the matter raised in the petitions
invalid, then We would automatically revert to our positions in the is a political one which the courts are not supposed to inquire into,
11-man- Court, otherwise, We would just continue to be in our and, anyway, there has been a substantial compliance with Article
membership in the 15-man-Court, unless We feel We cannot in XV of the 1935 Constitution, inasmuch as, disregarding unessential
conscience accept the legality of existence. On the other hand, if it is matters of form, the undeniable fact is that the voting in the
assumed that We are the 11-man-Court and it happens that Our referendum resulted in the approval by the people of the New
collective decision is in favor of the new constitution, it would be Constitution.
problematical for any dissenting justice to consider himself as I need not dwell at length on these variant positions of the
included automatically in the 15-man-Court, since that would parties. In my separate opinion in the Plebiscite Cases, I already
tantamount to accepting a position he does not honestly believe made the observation that in view of the lack of solemnity and
exists. regularity in the voting as well as in the manner of reporting and
III canvassing conducted in connection with the referendum, I cannot
In brief, the main contention of the petitioners is that say that Article XV of the Old Constitution has been complied with,
Proclamation 1102 is invalid because the ratification of the 1973 albeit I held that nonetheless, the Constitution of 1973 is already in
Constitution it purports to declare as having taken place as a result force. In order, however, to make myself clearer on some relevant
of the referendum above-referred to is ineffective since it cannot be points, I would like to add a few considerations to what I have
said on the basis of the said referendum that said Constitution has already said in the former cases.
been “approved by a majority of the votes cast at an election” in the In my opinion in those cases, the most important point I took into
manner prescribed by Article XV the Constitution of 1935. More account was that in the face of the Presidential certification through
specifically, they maintain that the word “election” in the said Proclamation 1102 itself that the New Constitution has been
Article has already acquired a definite accepted meaning out of the approved by a majority of the people and
consistent holding in the past of ratification plebiscites, and
190
accordingly, no other form of ratification can be considered
contemplated by the framers of the Old Constitution than that which
had been followed 1935, 1937, 1939, 1940, 1946 and 1967, the last 190 SUPREME COURT REPORTS ANNOTATED
three or four which were held under the supervision of the
Commission on
189 having in mind facts of general knowledge which I have judicial

notice of, I am in no position to deny that the result of the
VOL. 50, MARCH 31, 1973 189 referendum was as the President had stated. I can believe that the
figures referred to in the proclamation may not accurate, but I cannot
Javellana vs. The Executive Secretary say in conscience that all of them are manufactured or prefabricated,
simply because I saw with own eyes that people did actually gather
Elections. Furthermore, they emphatically deny the veracity of the and listen discussions, if brief and inadequate for those who are
proclaimed results of the referendum because, according to them the abreast of current events and general occurrences, and that they did
referendum was a farce and its results were manufactured or vote. I believe I can safely say that what I have seen have also been
prefabricated, considering that Mr. Francisco Cruz, who is supposed seen by many others throughout the country and unless it can be
to have submitted the final report to the President, which served as assumed, which honestly, I do not believe to be possible, that in fact
basis for Proclamation 1102, had no official authority to render the there were actually no meetings held and no voting done in more
same, and it is inconceivable and humanly impossible for anyone to places than those wherein there were such meetings and votings, I
have been able to gather, tabulate and canvass the 15 million votes am not prepared to discredit entirely the declaration that there was
allegedly reported within the short period of time employed. Of voting and that the majority of the votes were in favor of the New
course, they also contend that in any event, there was no proper Constitution. If in fact there were substantially less than 14 million
143/326 144
votes of approval, the real figure, in my estimate, could still be of the subject question was not originally made by any of the
significant enough and legally sufficient to serve as basis for a valid talented counsels for petitioners. It came from Mr. Justice Fred Ruiz
ratification. Castro whose mastery of the English language can rightly be the
It is contended, however, that the understanding was that the cause of envy of even professors of English. None of the other
referendum among the Citizens Assemblies was to be in the nature members of the Court, as far as I can recall, ever noticed how the
merely of a loose consultation and not an outright submission for said question is phrased, or if anyone of Us did, I am not aware that
purposes of ratification. I can see that at the outset, when the first set he gave it more than passing attention. What I mean is that if neither
of questions was released, such may have been the idea. It must not any of the distinguished and learned counsels nor any member of the
be lost sight of, however, that if the newspaper reports are to be Court understood the said question otherwise than calling for a
believed, and I say this only because petitioners would consider the factual answer instead of a mere opinion, how could anyone expect
newspapers as the official gazettes of the administration, the last set the millions of unlettered members of the Citizens Assemblies to
of six questions were included precisely because the reaction to the have noticed the point brought out by Justice Castro? Truth to tell, I
idea of mere consultation was that the people wanted greater direct myself did not realize the difference until Justice Castro gave it
participation, thru the Citizens Assemblies, in decision-making emphasis. Besides, reading the question in the light of the
regarding matters of vital national interest. Thus, looking at things accompanying “comment” corresponding to it in particular, I am
more understandingly and realistically the two questions emphasized certain that any one who answered the same understood it in no
by counsel, namely, (1) Do you approve of the New Constitution? other sense than a direct inquiry as to whether or not, as a matter of
and (2) Do you want plebiscite to be called to ratify the new fact,
Constitution? should be considered no longer as loose consultations
192
but as direct inquiries about the desire of the voters regarding the
matters mentioned. Accordingly, I take it that if the majority had
191
VOL. 50, MARCH 31, 1973 191

he approves the New Constitution, and naturally, affirmative answer
Javellana vs. The Executive Secretary must be taken as a categorical vote of approval thereof, considering,
particularly, that according to the reported result of the referendum
expressed disapproval of the new Constitution, the logical said answer was even coupled with the request that the President
consequence would have been the complete abandonment of the defer the convening of the Interim National Assembly.
idea of holding any plebiscite at all. On the other hand, it is very It is also contended that because of this reference in answer to
plain to see that since the majority has already approved the new that question to the deferment of the convening of the interim
Constitution, a plebiscite would be superfluous. Clear as these assembly, the said answer is at best a conditional approval not
rationalizations may be, it must have been thought that if the holding proper nor acceptable for purposes of ratification plebiscite. The
of a plebiscite was to be abandoned, there should be a direct and contention has no basis. In interest of accuracy, the additional
expressed desire of the people to such effect in order to forestall as answer proposed in pertinent “comment” reads as follows: “But we
much as possible any serious controversy regarding the non-holding do not want Ad Interim Assembly to be convoked etc.” On the
of the plebiscite required by the letter of Section 16 of Article XVII, assumption that the actual answer, as reported, was of similar tenor,
the effectivity clause, of the new Constitution. Oddly enough, the it is not fair to ascribe to it the imposition of a condition. At most,
“comments” accompanying the questions do strongly suggest this the intention is no more than a suggestion or a wish.
view. And as it turned out, the majority found no necessity in As regards said “comments,” it must be considered that a martial
holding a plebiscite. law was declared, the circumstances surrounding making of the
In connection with the question, Do you approve of the New Constitution acquired a different and more meaningful aspect,
Constitution? capital is being made of the point that as so framed, namely, the formation of a new society. From the point of view of
the thrust of the said question does not seek an answer of fact but of the President and on the basis of intelligence reports available to
opinion. It is argued that it would have been factual were it worded him, the only way to meet situation created by the subversive
categorically thus — Do you approve the New Constitution? The elements was to introduce immediately effective reforms calculated
contention would have been weighty were it not unrealistic. I to redeem the people from the depth of retrogression and stagnation
remember distinctly that the observation regarding the construction caused by rampant graft and corruption in high places, influence
145/326 146
peddling, oligarchic political practices, private armies, anarchy, referendum barely because of martial law per se. For one thing,
deteriorating conditions of peace and order, the so inequalities many of the objectionable features of martial law have not actually
widening the gap between the rich and the poor, and many other materialized, if only because the implementation of martial law
deplorable long standing maladies crying for early relief and since its inception has been generally characterized by restraint and
solution. Definitely, as in the case of rebellious movement that consideration, thanks to the expressed wishes of the President that
threatened the Quirino Administration, the remedy was far from the same be made “Philippine style,” which means without
using bullets alone. If a constitution was to be approved as an
194
effective instrument towards the eradication of such grave problems,
it had to be approved without loss of time and sans the cumbersome
processes that, from the realistic viewpoint, have in the past 194 SUPREME COURT REPORTS ANNOTATED
obstructed rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident
193 the rigor that has attended it in other lands and other times.
Moreover, although the restrictions on the freedom of speech, the
VOL. 50, MARCH 31, 1973 193 press and movement during martial law do have their corresponding
adverse effects on the area of information which should be open to a
Javellana vs. The Executive Secretary voter, in its real sense what “chills” his freedom of choice and mars
his exercise of discretion is suspension of the privilege of the writ
objective in having a new constitution is to establish new directions of habeas corpus. The reason is simply that a man may freely and
in the pursuit of the national aspirations and the carrying out of correctly vote even if the needed information he possesses as to the
national policies. Only by bearing these considerations in mind can candidates or issues being voted upon is more or less incomplete,
the “comments” already referred to be properly appreciated. To but when he is subject to arrest and detention without investigation
others said “comments” may appear as evidence of corruption of the and without being informed of the cause thereof, that is something
will of those who attended the assemblies, but actually, they may else which may actually cause him to cast a captive vote. Thus it is
also be viewed in the same light as the sample ballots commonly the suspension of the writ of habeas corpus accompanying martial
resorted to in the elections of officials, which no one can contend law that can cause possible restraint on the freedom choice in an
are per se means of coercion. Let us not forget that the times are election held during martial law. It is a fact, however, borne by
abnormal, and prolonged dialogue and exchange of ideas are not history and actual experience, that in the Philippines, the suspension
generally possible, nor practical, considering the need for faster of the privilege of the writ habeas corpus has never produced any
decisions and more resolute action. After all voting on a whole new chilling effect upon the voters, since it is known by all that only
constitution is different from voting on one, two or three specific those who run afoul the law, saving inconsequential instances, have
proposed amendments, the former calls for nothing more than a any cause for apprehension in regard to the conduct by them of the
collective view of all the provisions of the whole charter, for normal activities of life. And so it is recorded that in the elections
necessarily, one has to take the good together with the bad in it. It is 1951 and 1971, held while the privilege of writ of habeas
rare for anyone to reject a constitution only because of a few specific corpus was under suspension, the Filipino voters gave the then
objectionable features, no matter how substantial, considering the opposition parties overwhelming if not sweeping victories, in
ever present possibility that after all it may be cured by subsequent defiance of the respective administrations that ordered the
amendment. Accordingly, there was need to indicate to the people suspensions.
the paths open to them in their quest for the betterment of their At this juncture, I think it is fit to make it clear that I am not
conditions, and as long as it is not shown that those who did not trying to show that the result of the referendum may considered as
agree to the suggestions in the “comments” were actually compelled sufficient basis for declaring that the New Constitution has been
to vote against their will, I am not convinced that the existence of ratified in accordance with the amending clause of the 1935
said “comments” should make any appreciable difference in the Constitution. I reiterate that in point of law, I find neither strict nor
court’s appraisal of the result of the referendum. substantial compliance. The foregoing discussion is only to counter,
I must confess that the fact that the referendum was held during if I may, certain impression regarding the general conditions
martial law detracts somehow from the value that the referendum obtaining during and in relation to the referendum which could have
would otherwise have had. As I intimated, however, in my former in one way or another affected the exercise of the freedom of choice
opinion, it is not fair to condemn and disregard the result of the and the use of discretion by the members of the Citizens Assemblies,
147/326 148
to the end that as far as the same conditions may be relevant in my 196 SUPREME COURT REPORTS ANNOTATED
subsequent discussions of the acceptance by the people of the New Javellana vs. The Executive Secretary
Constitution they may also be considered.
195 referring to the results announced in the proclamation itself. Giving

substantial allowances for possible error and downright
manipulation, it must not be overlooked that, after all, their having
VOL. 50, MARCH 31, 1973 195
been accepted and adopted by the President, based on official reports
Javellana vs. The Executive Secretary submitted to him in due course of performance of duty of
appropriate subordinate officials, elevated them to the category of an
act of a coordinate department of the government which under the
IV principle separation of powers is clothed with presumptive
It is my sincere conviction that the Constitution of 1973 has been correctness or at least entitled to a high degree of acceptability, until
accepted or adopted by the people. And on this premise, my overcome by better evidence, which in these cases does not exist. In
considered opinion is that the Court may no longer decide these any event, considering that due to the unorthodoxy of the procedure
cases on the basis of purely legal considerations. Factors which are adopted and the difficulty of an accurate checking of all the figures, I
non-legal but nevertheless ponderous and compelling cannot be am unable to conceive of any manageable means of acquiring
ignored, for their relevancy is inherent in the issue itself to be information upon which to predicate a denial, I have no alternative
resolved. but to rely on what has been officially declared. At this point, I
In my opinion in the Plebiscite Cases, I joined my colleagues in would venture to express the feeling that if it were not generally
holding that the question of whether or not there was proper conceded that there has been sufficient showing of the acceptance in
submission under Presidential Decree No. 73 is justiciable, and I still question by this time, there would have been already demonstrative
hold that the propriety of submission under any other law or in any and significant indications of a rather widespread, if not organized
other form is constitutionally a fit subject for inquiry by the courts. resistance in one form or another. Much as they are to be given due
The ruling in the decided cases relied upon by petitioners are to this recognition as magnificent manifestations of loyalty and devotion to
effect. In view, however, of the factual background of the cases at principles, I cannot accord to the filing of these cases as indicative
bar which include ratification itself, it is necessary for me to point enough of the general attitude of the people.
out that when it comes to ratification, I am persuaded that there It is true that in the opinion I had the privilege of penning the
should be a boundary beyond which the competence of the courts no Court in Tolentino vs. Comelec, 41 SCRA 702, I made strong and
longer has any reason for being, because the other side is exclusively unequivocal pronouncements to the effect that any amendment to the
political territory reserved for their own dominion by the people. Constitution of 1935, to be valid, must appear to have been made in
The main basis of my opinion in the previous cases was strict conformity with the requirements of Article XV thereof. What
acceptance by the people. Others may feel there is not enough is more, that decision asserted judicial competence to inquire into
indication of such acceptance in the record and in the circumstances the matter of compliance or non compliance as a justiciable matter. I
the Court can take judicial notice of. For my part, I consider it still believe in the correctness of those views and I would even add
unnecessary to be strictly judicial in inquiring into such fact. Being that I sincerely feel it reflects the spirit of the said constitutional
personally aware, as I have already stated, that the Citizens provision. Without trying to strain any point however, I, submit the
Assemblies did meet and vote, if irregularly and crudely, it is not for following considerations in the context of the peculiar circumstances
me to resort, for the purposes of these cases, to judicial tape and of the cases now at bar, which are entirely different from those in the
measure, to find out with absolute precision the veracity of the total backdrop of the Tolentino rulings I have referred to.
number of votes actually cast. After all, the claims that upon a
197
comparison of conflicting reports, cases of excess votes may be
found, even if extrapolated will not, as far as I can figure out, suffice
to overcome the outcome officially announced. Rather than try to VOL. 50, MARCH 31, 1973 197
form a conclusion out of the raw evidence before Us which the Javellana vs. The Executive Secretary
parties did not care to really complete, I feel safer by
196
149/326 150
1. Consider that in the present case what is involved is not just an 2. When an entirely new constitution is proposed to supersede the
amendment of a particular provision of an existing Constitution; existing one, we cannot but take into consideration the forces and
here, it is, as I have discussed earlier above, an entirely new the circumstances dictating the replacement. From the very nature of
Constitution that is being proposed. This important circumstance things, the proposal to ordain a new constitution must be viewed as
makes a great deal of difference. the most eloquent expression of a people’s resolute determination to
No less than counsel Tolentino for herein respondents Puyat and bring about a massive change of the existing order, a meaningful
Roy, who was himself the petitioner in the case I have just referred transformation of the old society and a responsive reformation of the
to is, now inviting Our attention to the exact language of Article XV contemporary institutions and principles. Accordingly, should any
and suggesting that the said Article may be strictly applied to question arise as to its effectivity and there is some reasonable
proposed amendments but may hardly govern the ratification of a indication that the new charter has already received in one way or
new Constitution. It is particularly stressed that the Article another the sanction of the people, I would hold that the better rule is
specifically refers to nothing else but “amendments to this for the courts to defer to the people’s judgment, so long as they are
Constitution” which if ratified “shall be valid as part of this convinced of the fact of their approval, regardless of the form by
Constitution.” Indeed, how can a whole new constitution be by any which it is expressed provided it be reasonably feasible and reliable.
manner of reasoning an amendment to any other constitution and Otherwise stated, in such instances, the courts should not bother
how can it, if ratified, form part of such other constitution? In fact, in about inquiring into compliance with technical requisites, and as a
the Tolentino case I already somehow hinted this point when I made matter of policy should consider the matter non-justiciable.
reference in the resolution denying the motion for reconsideration to 3. There is still another circumstance which I consider to be of
the fact that Article XV must be followed “as long as any great relevancy. I refer to the ostensible reaction of the component
amendment is formulated and submitted under the aegis of the elements, both collective and individual, of the Congress of the
present Charter.” Said resolution even added. “(T)his is not to say Philippines. Neither the Senate nor the House of Representatives has
that the people may not, in the exercise of their inherent been reported to have even made any appreciable effort or attempt to
revolutionary powers, amend the Constitution or promulgate an convene as they were supposed to do under the Constitution of 1935
entirely new one otherwise.” on January 22, 1973 for the
It is not strange at all to think that the amending clause of a
constitution should be confined in its application only to proposed _______________
changes in any part of the same constitution itself, for the very fact 3 It must be recalled that in the Tolentino case, the Constitutional Convention
that a new constitution is being adopted implies a general intent to intended to submit one amendment which was to form part of the Constitution still
put aside the whole of the old one, and what would be really being prepared by it separately from the rest of the other parts of such constitution
incongrous is the idea that in such an eventuality, the new still unfinished, and We held that a piece-meal submission was improper. We had no
Constitution would subject its going into effect to any provision of occasion to express any view as to how a whole new Constitution may be ratified.
the constitution it is to supersede, to use the language precisely of
Section 6, Article XVII, the effectivity clause, of the New 199
Constitution. My understanding is that generally, constitutions are
self-born, they very rarely, if at all, come into being, by virtue of any VOL. 50, MARCH 31, 1973 199
provision of another
198
regular session. It must be assumed that being composed of

198 SUPREME COURT REPORTS ANNOTATED experienced, knowledgeable and courageous members, it would not
have been difficult for said parliamentary bodies to have conceived
some ingenious way of giving evidence of their determined
adherence to the Constitution under which they were elected.
constitution.3 This must be the reason why every constitution has its Frankly, much as I admire the efforts of the handful of senators who
own effectivity clause, so that if, the Constitutional Convention had had their picture taken in front of the padlocked portals of the Senate
only anticipated the idea of the referendum and provided for such a chamber, I do not feel warranted to accord such act as enough token
method to be used in the ratification of the New Constitution, I of resistance. As counsel Tolentino has informed the court, there was
would have had serious doubts as to whether Article XV could have noting to stop the senators and the congressmen to meet in any other
had priority of application. convenient place and somehow officially organize themselves in a
151/326 152
way that can logically be considered as a session, even if nothing our legal erudition and Solomonic wisdom but an all rounded
were done than to merely call the roll and disperse. Counsel judgment resulting from the consideration of all relevant
Tolentino even pointed out that if there were not enough members to circumstances, principally the political, or, in brief, a decision more
form a quorum, any smaller group could have ordered the arrest of political than legal, which a court can render only by deferring to the
the absent members. And with particular relevance to the present apparent judgment of the people and the announcement thereof by
cases, it was not constitutionally indispensable for the presiding the political departments of the government and declaring the matter
officers to issue any call to the members to convene, hence the non-justiciable.
present prayers for mandamus have no legal and factual bases. And 4. Viewed from the strictly legal angle and in the light of judicial
to top it all, quite to the contrary, the records of the Commission on methods of ascertainment, I cannot agree with the Solicitor General
Elections show that at least 15 of 24 senators and over 95 out of less that in the legal sense, there has been at least substantial compliance
than 120 members of the House of Representatives, have officially with Article XV of the 1935 Constitution, but what I can see is that
and in writing exercised the option given to them to join the Interim in a political sense, the answers to the referendum questions were
National Assembly under the New Constitution, thereby manifesting not given by the people as legal conclusions. I take it that when they
their acceptance of the new charter. answered that by their signified approval of the New Constitution,
Now, having these facts in mind, and it being obvious that of the they do not consider it necessary to hold a plebiscite, they could not
three great departments of the government under the 1935 have had in mind any intent to do what was constitutionally
Constitution, two, the Executive and the Legislative, have already improper. Basically accustomed to proceed along constitutional
accepted the New Constitution and recognized its enforceability and channels, they must have acted in the honest conviction that what
enforcement, I cannot see how this Supreme Court can by judicial was being done was in conformity with
fiat hold back the political developments taking place and for the
201
sake of being the guardian of the Constitution and the defender of its
integrity and supremacy make its judicial power prevail against the
decision of those who were duly chosen by the people to be their VOL. 50, MARCH 31, 1973 201
authorized spokesmen and representatives. It is not alone the
physical futility of such a gesture that concerns me. More than that,
200 prevailing constitutional standards. We are not to assume that the

sovereign people were indulging in a futile exercise of their supreme
200 SUPREME COURT REPORTS ANNOTATED political right to choose the fundamental charter by which their
lives, their liberties and their fortunes shall be safeguarded. In other
Javellana vs. The Executive Secretary words, we must perforce infer that they meant their decision to
count, and it behooves this Court to render judgment herein in that
there is the stark reality that the Senators and the Congressmen, no context. It is my considered opinion that viewed understandingly
less than the President, have taken the same oath of loyalty to the and realistically, there is more than sufficient ground to hold that,
Constitution that we, the Justices, have taken and they are, therefore, judged by such intent and, particularly, from the political standpoint,
equally bound with Us to preserve and protect the Constitution. If as the ratification of the 1973 Constitution declared in Proclamation
the representatives of the people, they have already opted to accept 1102 complies substantially with Article XV of the 1935 Charter,
the New Constitution as the more effective instrument for fulfillment specially when it is considered that the most important element of
of the national destiny, I really wonder if there is even any idealistic the ratification therein contemplated is not in the word “election,”
worth in our desperately clinging by Ourselves alone to Our sworn which conceivably can be in many feasible and manageable forms
duty vis-a-vis the 1935 Constitution. Conscious of the declared but in the word “approved” which may be said to constitute the
objectives of the new dispensation and cognizant of the decisive substantiality of the whole article, so long as such approval is
steps being with the least loss of time, towards their reasonably ascertained. In the last analysis, therefore, it can be
accomplishment, cannot but feel apprehensive that instead of rightly said, even if only in a broad sense, that the ratification here in
serving the best interests of our people, which to me is in reality the question was constitutionally justified and justifiable.
real meaning of our oath of office, the Court might be standing in the 5. Finally, if any doubt should still linger as to the legitimacy of
way of the very thing our beloved country needs to retrieve its past the New Constitution on legal grounds, the same should be dispelled
glory and greatness. In other words, it is my conviction that what by viewing the situation in the manner suggested by Counsel
these cases demand most of all is not a decision demonstrative of Tolentino and by the writer of this opinion in his separate opinion,
153/326 154
oft-referred to above, in the Plebiscite Cases — that is, as an extra all-level change in our government and society purported to make
constitutional exercise by the people, under the leadership of more realistic and feasible, rather than idealistic and cumbersomely
President Marcos, of their inalienable right to change their deliberative, the attainment of our national aspirations, I am led to
fundamental charter by any means they may deem appropriate, the wonder whether or not we, as members of the Supreme Court are
moment they are convinced that the existing one is no longer being true to our duty to our people by refusing to follow suit and
responsive to their fundamental, political and social needs nor accept the realities of the moment, despite our being convinced of
conducive to the timely attainment of their national destiny. This is the sincerity and laudableness of their objectives, only because we
not only the teaching of the American Declaration of Independence feel that by the people’s own act of ratifying the
but is indeed, a truth that is self-evident. More, it should be regarded
203
as implied in every constitution that regardless of the language of its
amending clause, once the people have given their sanction to a new
charter, the latter may be deemed as constitutionally permissible VOL. 50, MARCH 31, 1973 203
even from the point of view of the preceding constitution. Those
who may feel restrained to
202 Constitution of 1935, they have so encased themselves within its

provisions and may, therefore, no longer take measures to redeem
202 SUPREME COURT REPORTS ANNOTATED themselves from the situation brought about by the deficiencies of
the old order, unless they act in strict conformity therewith. I cannot
Javellana vs. The Executive Secretary believe that any people can be so stifled and enchained. In any event,
I consider it a God-given attribute of the people to disengage
consider this view out of respect to the import of Tolentino vs. themselves, if necessary, from any covenant that would obstruct
Comelec, supra, would be well advised to bear in mind that the case their taking what subsequently appears to them to be the better road
was decided in the context of submission, not accomplished to the promotion and protection of their welfare. And once they have
ratification. made their decision in that respect, whether sophisticatedly or
V crudely, whether in legal form or otherwise, certainly, there can be
The language of the disputed amending clause of the 1935 no court or power on earth that can reverse them.
Constitution should not be deemed as the be all and end all the I would not be human if I should be insensitive to the passionate
nation. More important than even the Constitution itself with all its and eloquent appeals of Counsels Tañada and Salonga that these
excellent features, are the people living under it — their happiness, cases be decided on the basis of conscience. That is exactly what I
their posterity and their national destiny. There is nothing that cannot am doing. But if counsel mean that only by granting their petitions
be sacrificed in the pursuit of these objectives, which constitute the can this Court be worthily the bulwark of the people’s faith in the
totality of the reasons for national existence. The sacred liberties and government, I cannot agree, albeit my admiration and respect are all
freedom enshrined in it and the commitment and consecration theirs for their zeal and tenacity, their industry and wisdom, their
thereof to the forms of democracy we have hitherto observed are patriotism and devotion to principle. Verily, they have brought out
mere integral parts of this totality; they are less important by everything in the Filipino that these cases demand.
themselves. In times of national emergencies and crises, not arising from
What seems to me to be bothering many of our countrymen now foreign invasion, we need not fear playing opposite roles, as long as
is that by denying the present petitions, the Court would be deemed we are all animated by sincere love of country and aim exclusively
as sanctioning, not only the deviations from traditional democratic at the attainment of the national destiny. Our heroes of the past,
concepts and principles but also the qualified curtailment of Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with
individual liberties now being practiced, and this would amount, it is our patriots of the recent generations, Quezon, Osmeña, Roxas,
feared, to a repudiation of our oath to support and defend the Laurel and Recto, to mention only some of them, had their
Constitution of 1935. This is certainly something one must gravely differences of views — and they did not hesitate to take
ponder upon. When I consider, however, that the President, the Vice diametrically opposing sides — that even reached tragic proportions,
President, the members of both Houses of Congress, not to speak of but all of them are admired and venerated.
all executive departments and bureaus under them as well as all the It is my faith that to act with absolute loyalty to our country and
lower courts, including the Court of Appeals have already accepted people is more important than loyalty to any particular precept or
the New Constitution as an instrument of a meaningful nationwide- provision of the Constitution or to the Constitution itself. My oath to
155/326 156
abide by the Constitution binds me to whatever course of action I Javellana vs. The Executive Secretary
feel sincerely is demanded by the welfare and best interests of the
people.
204 In 1957, Mr. Chief Justice Roberto Concepcion, then Associate
Justice, in behalf of the Court, defined a political question as one
which, under the Constitution, is “to be decided by the people in
204 SUPREME COURT REPORTS ANNOTATED their sovereign capacity, or in regard to which full discretionary
Javellana vs. The Executive Secretary authority had been delegated to the Legislature or Executive branch
of the government.” (Tañada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: “Such
In this momentous juncture of our history, what is imperative is amendments shall be valid as part of this Constitution when
national unity. May God grant that the controversies the events approved by a majority of the votes cast at an election at which the
leading to these cases have entail will heal after the decision herein amendments are submitted to the people for ratification.” Under
is promulgated, so that all us Filipinos may forever join hands in the Article XV of the 1935 Constitution, the power to propose
pursuit of our national destiny. constitutional amendments is vested in Congress or in a
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these constitutional convention; while the power to ratify or reject such
petitions for mandamus and prohibition without costs. proposed amendments or new Constitution is reserved by the
sovereign people. The nullification of Proclamation No. 1102 would
MAKASIAR, J., concurring: inevitably render inoperative the 1973 Constitution, which is in fact
Assuming, without conceding, that Article XV of the 1935 the express prayer of the petitioners in G.R. No. L-36164.
Constitution prescribes a procedure for the ratification of Regardless of the modality of submission or ratification or adoption
constitutional amendments or of a new Constitution and that such — even if it deviates from or violates the procedure delineated
procedure was no complied with, the validity of Presidential therefore by the old Constitution — once the new Constitution is
Proclamation No. 1102 is a political, not a justiciable, issue; for it is ratified, adopted and/or acquiesced in by the people or ratified even
inseparably or inextricably link with and strikes at, because it is by a body or agency not duly authorized therefor but is subsequently
decisive of, the validity of ratification and adoption of, as well as adopted or recognized by the people and by the other official organs
acquiescence of people in, the 1973 Constitution and the legitimacy and functionaries of the government established under such a new
of the government organized and operating thereunder. And being Constitution, this Court is precluded from inquiring into the validity
political, it is beyond the ambit of judicial inquiry, tested by the of such ratification, adoption or acquiescence and of the consequent
definition of a political question enunciated in Tañada, et al. vs. effectivity of the new Constitution. This is as it should be in a
Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will democracy, for the people are the repository of all sovereign powers
not do violence to rights vested under the new Constitution, to as well as the source of all governmental authority (Pole vs. Gray,
international commitments forged pursuant thereto and to decisions 104 SO 2nd 841 [1958]). This basic democratic concept is expressly
rendered by the judicial as well as quasi-judicial tribunals organized restated in Section 1 of Article II of the Declaration of Principles of
and functioning or whose jurisdiction has been altered by the 1973 the 1935 and 1973 Constitutions, thus: “Sovereignty resides in the
Constitution and the government established thereunder, and will people and all government authority emanates from them.”
dissipate any confusion in the minds of the citizenry, who have been The legality of the submission is no longer relevant; because the
obeying the mandates of the new Constitution, as well as exercising ratification, adoption and/or acquiescence by the people cures any
the rights and performing the obligations defined by the new infirmity in its submission or any other irregularities therein which
Constitution, and decrees and orders issued in implementation of the are deemed mandatory before
same and cooperating with the administration in the renovation of 206
our social, economic and political system as re-structured by the
1973 Constitution and by the implementing decrees and orders (see
Miller vs. Johnson, 18 SW 522, 522-526, 1892). 206 SUPREME COURT REPORTS ANNOTATED
205
VOL. 50, MARCH 31, 1973 205

157/326 158
submission as they are considered merely directory after such amendment has been ratified will carry with it a solemn assurance by the
ratification or adoption or acquiescence by the people. As Mr. Congress that ratification has taken place as the Constitution commands.
Justice Brewer, then of the Kansas State Supreme Court and later Upon this assurance a proclaimed amendment must be accepted as a part of
Associate Justice of the Federal Supreme Court, stated in re the Constitution, leaving to the judiciary its traditional authority of
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, interpretation. To the extent that the Court’s opinion in the present case even
506): “The two important, vital elements of the Legislature and a impliedly assumes a power to make judicial interpretation of the exclusive
majority of the popular vote. Beyond these, other provisions are constitutional authority of Congress over submission and ratification of
mere machineries and forms. They may not be disregarded, because amendments, we are unable to agree...” (American Constitutional Issues, by
by them certainty as to the essentials is secured. But they are not Pritchett, 1962 Ed., p. 44).
themselves the essentials.” (Cited in Larken vs. Gronna, 285 NW 59,
61-64, 1939). The doctrine in the aforesaid case of Coleman vs. Miller was
This was the ruling by the American Supreme Court in the 1939 adopted by Our Supreme Court in toto in Mabanag vs. Lopez
case of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Vito (78 Phil. 1).
Chief Justice Hughes, speaking for the majority, stated that: The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224,
Nov. 29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-
“x x x Thus the political departments of the government dealt with the effect 34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place
of both previous rejection and attempted withdrawal and determined that great reliance — that the courts may review the propriety of a
both were ineffectual in the presence of an actual ratification x x x. This submission of a proposed constitutional amendment before the
decision by the political departments of the Government as to the validity of ratification or adoption of such proposed amendment by the
the adoption of the Fourteenth amendment has been accepted. sovereign people, hardly applies to the cases at bar; because the
“We think that in accordance with this historic precedent the question of issue involved in the aforesaid cases refers to only the propriety of
the efficacy of ratifications by state legislatures, in the light of previous the submission of a proposed constitutional amendment to the
rejection or attempted withdrawal, should be regarded as a political question people for ratification, unlike the present petitions, which challenge
pertaining to the political departments, with the ultimate authority in the inevitably the validity of the 1973 Constitution after its ratification
Congress in the exercise of its control over the promulgation of the adoption or adoption thru acquiescence by the sovereign people. As
of the amendment.” heretofore stated, it is specious and pure sophistry to advance the
reasoning that the present petitions pray only for the nullification of
This view was likewise emphasized by Mr. Justice Black in his the 1973 Constitution and the government operating thereunder.
concurring opinion, in which Mr. Justices Roberts, Frankfurter, and It should be stressed that even in the Gonzales case, supra, We
Douglas join, thus: held that:
“The Constitution grants Congress exclusive power to control 208
submission of constitutional amendments. Final determination by Congress
that ratification by three-fourths of the States has taken place ‘is conclusive
upon the courts.’ In the exercise of that power, Congress, of course, is 208 SUPREME COURT REPORTS ANNOTATED
governed by the Constitution. However, Javellana vs. The Executive Secretary
207

VOL. 50, MARCH 31, 1973 207 “Indeed, the power to amend the Constitution or to propose amendments
Javellana vs. The Executive Secretary thereto is not included in the general grant of legislative powers to
Congress. It is part of the inherent powers of the people — as the repository
whether submission, intervening procedure or Congressional determination of sovereignty in a republican state, such as ours — to make, and hence, to
of ratification conforms to the commands of the Constitution, calls for amend their own Fundamental Law. Congress may propose amendments to
decisions by a ‘political department’ of questions of a type which this Court the same explicitly grants such power. Hence, when exercising the same, it
has frequently designated ‘political.’ And decision of a ‘political question’ is said that Senators and Members of the House of Representatives
by the ‘political department’ to which the Constitution has committed it act, not as members, but as component elements of a constituent assembly.
‘conclusively binds the judges, as well as all other officers, citizens and When acting as such, the members of Congress derive their authority from
subjects of...government.’ Proclamation under authority of Congress that an the Constitution, unlike the people, when performing the same function, for
159/326 160
their authority does not emanate from the Constitution — they are the very the latter should be deemed modified accordingly.” (p. 787, emphasis
source of all powers of government, including the Constitution itself.” (21 supplied.)
SCRA 787)
In the Tolentino case, supra, We reiterated the foregoing
We did not categorically and entirely overturn the doctrine statements (41 SCRA 703-714).
in Mabanag vs. Lopez Vito (78 Phil. 1) that both the proposal to The inevitable consequence therefore is that the validity of the
amend and the ratification of such a constitutional amendment are ratification or adoption of or acquiescence by the people in the 1973
political in nature forming as they do the essential parts of one Constitution, remains a political issue removed from the jurisdiction
political scheme — the amending process. WE merely stated therein of this Court to review.
that the force of the ruling in the said case of Mabanag vs. Lopez One more word about the Gonzales and Tolentino cases. Both
Vito has been weakened by subsequent cases. Thus, We pronounced primarily stressed on the impropriety of the submission of a
therein: proposed constitutional amendment. Courts do not deal with
propriety or wisdom or absence of either of an official act or of a
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the law. Judicial power concerns only with the legality or illegality,
issue submitted thereto as a political one, declined to pass upon the question constitutionality or unconstitutionality of an act: it inquires into the
whether or not a given number of votes cast in Congress in favor of a existence of power or lack of it. Judicial wisdom is not to be pitted
proposed amendment to the Constitution — which was being submitted to against the wisdom of the political department of the government.
the people for ratification — satisfied the three fourths vote requirement of The classic example of an illegal submission that did not impair
the fundamental law. The force of this precedent has been weakened, the validity of the ratification or adoption of a new Constitution is
however, by Suanes vs. Chief Accountant of the Senate, Avelino vs. the case of the Federal Constitution of the United States. It should be
Cuenco, Tañada vs. Cuenco and Macias vs. Commission on Elections. In the recalled that the thirteen (13) original states of the American Union
first, we held the officers and employees of the Senate Electoral Tribunal are — which succeeded in liberating themselves from England after the
supervision and control, not of that of the Senate President, claimed by the revolution which
latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third we nullified the 210
election, by Senators belonging to the party having the largest number of
votes in said chamber purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to the
first party, as members, for the second party, of the Senate Electoral Javellana vs. The Executive Secretary
Tribunal; and in the fourth, we declared unconstitutional an act of
began on April 19, 1775 with the skirmish at Lexington,
209
Massachusetts and ended with the surrender of General Cornwallis
at Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol.
VOL. 50, MARCH 31, 1973 209 I, 1933 Ed., p. 776) — adopted their Articles of Confederation and
Javellana vs. The Executive Secretary Perpetual Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About
Congress purporting to apportion the representative districts for the House six thereafter, the Congress of the Confederation passed a resolution
of Representatives, upon the ground that the apportionment had not been on February 21, 1787 calling for a Federal Constitutional
made as may be possible according to the number of inhabitants of each Convention “for the sole and express purpose of revising the articles
province. Thus we rejected the theory advanced in these four (4) cases, that of confederation x x x.” (Appendix I, Federalist, Modern Library
the issues therein raised were political questions the determination of which ed., p. 577, emphasis supplied).
is beyond judicial review. (21 SCRA pp. 785-786); The Convention convened at Philadelphia on May 14, 1787.
Article XIII of the Articles of Confederation and Perpetual Union
for which reason We concluded stated specifically:
“In short, the issue whether or not a resolution of Congress before acting as “The articles of this confederation shall be inviolably observed in every
a constituent assembly — violates the Constitution is essentially justiciable, state, and the union shall be perpetual; nor shall any alterations at any time
not political, and, hence, subject to judicial review, and to the extent that this hereafter be made in any of them; unless such alteration be agreed to in a
view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, congress of the united states, and be afterwards confirmed by the
161/326 162
legislatures of every state.” (See the Federalist, Appendix II, Modern C.J. p. 679 footnote, 16 C.J.S., 27 — by the state conventions and
Library Ed., 1937, p. 584; emphasis supplied.) not by all thirteen (13) state legislatures as required by Article XIII
of the Articles of Confederation and Perpetual Union
But the foregoing requirements prescribed by the Articles of aforequoted — and in spite of the fact that the Federal Constitution
Confederation and Perpetual Union for the alteration for the as originally adopted suffers from two basic infirmities, namely, the
ratification of the Federal Constitution as drafted by the Philadelphia absence of a bill of Rights and of a provision affirming the power of
Convention were not followed. Fearful the said Federal Constitution judicial review.
would not be ratified by the legislatures as prescribed, the The liberties of the American people were guaranteed by
Philadelphia Convention adopted a resolution requesting the subsequent amendments to the Federal Constitution. The doctrine of
Congress of the Confederation to pass a resolution providing that the judicial review has become part of American constitutional law only
Constitution should be submitted to elected state conventions and if by virtue of a judicial pronouncement
ratified by the conventions in nine (9) states, not necessarily in all
thirteen (13) states, the said Constitution shall take effect. 212
Thus, history Professor Edward Earle Mead of Princeton
University recorded that:
“It would have been a counsel of perfection to consign the new Javellana vs. The Executive Secretary
211
by Chief Justice Marshall in the case of Marbury vs. Madison (1803,
1 Cranch 137).
VOL. 50, MARCH 31, 1973 211
Until this date, no challenge has been launched against the
Javellana vs. The Executive Secretary validity of the ratification of the American Constitution, nor against
the legitimacy of the government organized and functioning
constitution to the tender mercies of the legislatures of each and all of the 13 thereunder.
states. Experience clearly indicated that ratification then would have had the In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd
same chance as the scriptural camel passing through the eye of a needle. It 322, 326-330), which enunciated the principle that the validity of a
was therefore determined to recommend to Congress that the new new or revised Constitution does not depend on the method of its
Constitution be submitted to conventions in the several states especially submission or ratification by the people, but on the fact or fiat or
elected to pass upon it and that, furthermore, the new government should go approval or adoption or acquiescence by the people which fact of
into effect if and when it should be ratified by nine of the thirteen ratification or adoption or acquiescence is all that is essential, the
states x x x.” (The Federalist, Modern Library Ed., 1937, Introduction by Court cited precisely the case of the irregular revision and
Edward Earle Mead, pp. viii-ix; emphasis supplied) ratification by state conventions of the Federal Constitution, thus:
Historian Samuel Eliot Morison similarly recounted: “No case identical in its facts with the case now under consideration has
been called to our attention, and we have found none. We think that the
“The Convention, anticipating that the influence of many state politicians
principle which we apply in the instant case was very clearly applied in the
would be Antifederalist, provided for ratification of the Constitution by
creation of the constitution of the United States. The convention created by a
popularly elected conventions in each state. Suspecting that Rhode Island, at
resolution of Congress had authority to do one thing, and one only, to wit,
least, would prove recalcitrant, it declared that the Constitution would go
amend the articles of confederation. This they did not do, but submitted to
into effect as soon as nine states ratified. The convention method had the
the sovereign power, the people, a new constitution. In this manner was the
further advantage that judges, ministers, and others ineligible to state
constitution of the United States submitted to the people and it became
legislatures, could be elected to a convention. The nine-state provision was,
operative as the organic law of this nation when it had been properly
of course, mildly revolutionary. But the Congress of the Confederation, still
adopted by the people.
sitting in New York to carry on federal government until relieved, formally
“Pomeroy’s Constitutional Law, p. 55, discussing the convention that
submitted the new constitution to the states and politely faded out before the
formulated the constitution of the United States, has this to say: ‘The
first presidential inauguration.” (The Oxford History of the Am. People, by
convention proceeded to do, and did accomplish, what they were not
Samuel Eliot Morison, 1965 ed., p. 312).
authorized to do by a resolution of Congress that called them together. That
And so the American Constitution was ratified by nine (9) states resolution plainly contemplated amendments to the articles of
on June 21, 1788 and by the last four states on May 29, 1790 (12 confederation, to be submitted to and passed by the Congress, and
163/326 164
afterwards ratified by all the State legislatures, in the manner pointed out by be regarded as an existing Constitution irrespective of the question as to
the existing organic law. But the convention soon became convinced that whether or not the
any amendments were powerless to effect a cure; that the disease was too
214
deeply seated to be reached such tentative means. They saw that the system
they were called to improve must be totally abandoned, and that the
national idea must be re-established at the center of their political society. It 214 SUPREME COURT REPORTS ANNOTATED
was Javellana vs. The Executive Secretary
213
convention which promulgated it had authority so to do without submitting
it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar
VOL. 50, MARCH 31, 1973 213 holding as to certain provisions of the Nebraska Constitution of 1886, which
Javellana vs. The Executive Secretary were added by the Legislature at the requirement of Congress, though never
submitted to the people for their approval.” (97 NW 349-350; emphasis
objected by some members, that they had no power, no authority, to supplied).
construct a new government. They had no authority, if their decisions were
to be final; and no authority whatsoever, under the articles of confederation, Against the decision in the Wheeler case, supra, confirming the
to adopt the course they did. But they knew that their labors were only to be validity of the ratification and adoption of the American
suggestions; and that they as well as any private individuals, and any private Constitution, in spite of the fact that such ratification was in clear
individuals as well as they, had a right to propose a plan of government to violation of the prescription on alteration and ratification of the
the people for their adoption. They were, in fact, a mere assemblage of Articles of Confederation and Perpetual Union, petitioners in G.R.
private citizens, and their work had no more binding sanction than a No. L-36165 dismissed this most significant historical fact by calling
constitution drafted by Mr. Hamilton in his office would have had. The the Federal Constitution of the United States as a revolutionary one,
people, by their expressed will, transformed this suggestion, this proposal, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum,
into an organic law, and the people might have done the same with a p. 27, that it was a revolutionary constitution because it did not obey
constitution submitted to them by a single citizen.’ the requirement that the Articles of Confederation and Perpetual
xx xx xx xx xx xx xx Union can be amended only with the consent of all thirteen (13)
“xx When the people adopt a completely revised or new constitution, the state legislatures. This opinion does not cite any decided case, but
framing or submission of the instrument is not what gives it binding force merely refers to the footnotes on the brief historic account of the
and effect. The fiat of the people and only the fiat of the people, can breathe United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on
life into a constitution. p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford
xx xx xx xx xx xx History of the American People, 1965 Ed. by Samuel Eliot Morison,
“x x x We do not hesitate to say that a court is never justified in placing who discusses the Articles of Confederation and Perpetual Union in
by implication a limitation upon the sovereign. This would be an authorized Chapter XVIII captioned “Revolutionary Constitution Making,
exercise of sovereign power by the court. In State v. Swift, 69 Ind. 505, 519, 1775-1781” (pp. 270-281). In Chapter XX on “The Creative Period
the Indiana Supreme Court said: ‘The people of a State may form an in Politics, 1785-1788,” Professor Morison delineates the genesis of
original constitution, or abrogate an old one and form a new one, at any the Federal Constitution, but does not refer to it even implicitly as
time, without any political restriction except the constitution of the United revolutionary constitution (pp. 297-316). However, the Federal
States; x x x.’ (37 SE 327-328, 329, emphasis supplied.) Constitution may be considered revolutionary from the view point of
McIver if the term revolution is understood in “its wider sense to
In the 1903 case of Weston vs. Ryan, the Court held: embrace decisive changes in the character of government, even
though they do not involve the violent overthrow of an established
“It remains to be said that if we felt at liberty to pass upon this question, order, x x x.” (R.M. MacIver, The Web of Government, 1965 ed., p.
and were compelled to hold that the act of February 23, 1887, is 203).
unconstitutional and void, it would not, in our opinion, by any means follow It is rather ridiculous to refer to the American Constitution as a
that the amendment is not a part of our state Constitution. In the recent case revolutionary constitution. The Articles of Confederation and
of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Perpetual Union that was in force from July 12, 1776 to 1788,
Virginia hold that their state Constitution of 1902, having been forged as it was during the war of independence was a
acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition, must 215
165/326 166
VOL. 50, MARCH 31, 1973 215 xx xx xx xx

“x x x On this subject it was said (p. 38):
“ ‘For if this court is authorized to enter upon this inquiry, proposed by
the plaintiff, and it should be decided that the character government had no
revolutionary constitution of the thirteen (13) states. In the existing legal existence during the period of time above mentioned, — if it had been
Federal Constitution of the United States which was adopted seven annulled by the adoption of the opposing government, — then the laws
(7) or nine (9) years after the thirteen (13) states won their passed by its legislature during that time were nullities; its taxes wrongfully
independence and long after popular support for the government of collected, its salaries and compensations to its officers illegally paid; its
the Confederation had stabilized was not a product of a revolution. public accounts improperly settled and the judgments and sentences of its
The Federal Constitution was a “creation of the brain and purpose of courts in civil and criminal cases null and void, and the officers who carried
man” in an era of peace. It can only be considered revolutionary in their decisions into operation answerable as trespassers, if not in some
the sense that it is a radical departure from its predecessor, the cases as criminals.’
Articles of Confederation and Perpetual Union. xx xx xx xx
It is equally absurd to affirm that the present Federal Constitution “ ‘The fourth section of the fourth article of the Constitution of the
of the United States is not the successor to the Articles of United States shall guarantee to every state in the Union a republican form
Confederation and Perpetual Union. The fallacy of the statement is of government, and shall protect each of them against invasion; and on the
so obvious that no further refutation is needed. application of the Legislature or of the Executive (when the legislature
As heretofore stated, the issue as to the validity of Proclamation cannot be convened) against domestic violence.
No. 1102 strikes at the validity and enforceability of the 1973 “ ‘Under this article of the Constitution it rests with Congress to decide
Constitution and of the government established and operating what government is established one in a state. For, as the United State
thereunder. Petitioners pray for a declaration that the 1973 guarantee to each state a republican government, Congress must necessarily
Constitution is inoperative (L-36164). If Proclamation No. 1102 is decide what government is established in the state before it can determine
nullified, then there is no valid ratification of the 1973 Constitution whether it is republican or not. And when the senators and representatives
and the inevitable conclusion is that the government organized and of a state are admitted into the Councils of the Union, the authority of the
functioning thereunder is not a legitimate government. government under which they were appointed, as well as its republican
That the issue of the legitimacy of a government is likewise character, is recognized by the proper constitutional authority. And its
political and not justiciable, had long been decided as early as the decision is binding on every other department of the government, and could
1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed not be questioned in a judicial tribunal. It is true that the contest in this case
in the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. did not last long enough to bring the matter to this issue; and as no senators
1187) and re-enunciated in 1912 in the case of Pacific States or representatives were elected under the authority of the government of
Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133- which Mr. Dorr was the head, Congress was not called upon to decide the
151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements controversy. Yet the right to decide is
in both Borden and Beckham cases, it is sufficient for us to quote the
decision in Pacific States Telephone and Telegraph Co., supra, 217
penned by Mr. Chief Justice White, who re-stated:
VOL. 50, MARCH 31, 1973 217
“In view of the importance of the subject, the apparent misapprehension
on one side and seeming misconception on the other, suggested by the Javellana vs. The Executive Secretary
argument as to the full significance of the
placed there and not in the courts.”
216 xx xx xx
“x x x We do not stop to cite other cases which indirectly or incidentally
216 SUPREME COURT REPORTS ANNOTATED refer to the subject, but conclude by directing attention to the statement by
Javellana vs. The Executive Secretary the court, speaking through Mr. Chief Justice Fuller, in Taylor vs. Beckham,
178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after
previous doctrine, we do not content ourselves with a mere citation of the disposing of a contention made concerning the 14th Amendment, and
cases, but state more at length than we otherwise would the issues and the coming to consider a proposition which was necessary to be decided
doctrine expounded in the leading and absolutely controlling case — Luther concerning the nature and effect of the guaranty of S 4 of article 4, it was
v. Borden, 7 How. 1, 12 L.ed. 581. said (p. 578):
167/326 168
“ ‘But it is said that the 14th Amendment must be read with S 4 of article resolution, July 15, 1902, recognizing the Constitution ordained by the
4, of the Constitution, providing that the United States shall guarantee to convention which assembled in the city of Richmond on the 12th day of
every state in this Union a republican form of government, and shall protect June 1901, as the Constitution of Virginia; by the individual oaths of
each of them against invasion; and on application of the legislature, or the members to support it, and by its having been engaged for nearly a year in
Executive (when the legislature cannot be convened), against domestic legislating under it and putting its provisions into operation but the judiciary
violence.” in taking the oath prescribed thereby to support and by enforcing its
xx xx xx xx provisions; and by the people in their primary capacity by peacefully
“ ‘It was long ago settled that the enforcement of this guaranty belonged accepting it and acquiescing in it, registering as voters under it to the extent
to the political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that of thousands through the state, and by voting, under its provisions, at a
case it was held that the question, which of the two opposing governments general election for their representatives in the Congress of the United
of Rhode Island, namely, the charter government or the government States.” (p. 755).
established by a voluntary convention, was the legitimate one, was a
question for the determination of the political department; and when that The Court in the Taylor case above-mentioned further said:
department had decided, the courts were bound to take notice of the decision
“While constitutional procedure for adoption or proposal to amend the
and follow it.’
constitution must be duly followed, without omitting any requisite steps,
xx xx xx xx
courts should uphold amendment, unless satisfied that the Constitution was
“As the issues presented, in their very essence, are, and have long since
violated in submitting the proposal. xx xx Substance more than form must
by this Court been, definitely determined to be political and governmental,
be regarded in considering whether the complete constitutional system for
and embraced within the scope of the scope of the powers conferred upon
submitting the proposal to amend the constitution was observed.”
Congress, and not, therefore within the reach of judicial power, it follows
that the case presented is not within our jurisdiction, and the writ of error In the 1925 case of Taylor vs. King (130 A 407, 408 410), the
must therefore be, and it is, dismissed for want of jurisdiction.” (223 U.S. Court stated:
pp. 142-151; emphasis supplied).
219
Even a constitutional amendment that is only promulgated by the
Constitutional Convention without authority therefor
VOL. 50, MARCH 31, 1973 219

Javellana vs. The Executive Secretary “There may be technical error in the manner in which a proposed
amendment is adopted, or in its advertisement, yet, if followed, unobjected
and without submitting the same to the people for ratification, to, by approval of the electors, it becomes part of the Constitution. Legal
becomes valid, when recognized, accepted and acted upon the by complaints to the submission may be made prior to taking the vote, but, if
Chief of State and other government functionaries, as well as by the once sanctioned, the amendment is embodied therein, and cannot be
people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754- attacked, either directly or collaterally, because of any mistake antecedent
755), the Court ruled: thereto. Even though it be submitted at an improper time, it is effective for
all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207,
“The sole ground urged in support of the contention that Constitution
126 A. 263.” (130 A 409).
proclaimed in 1902 is invalid is that it was ordained and promulgated by the
convention without being submitted for ratification or rejection by the Even if the act of the Constitutional Convention is beyond its
people of the commonwealth. authority, such act becomes valid upon ratification or adoption or
“The Constitution of 1902 was ordained and proclaimed by convention acquiescence by the people. Thus, in the 1905 case of Ex
duly called by direct vote of the people of the state to revise and amend the parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the
Constitution of 1869. The result of the work that the convention has been Alabama Supreme Court upheld this principle and stated that: “The
recognized, accepted, and acted upon as the only valid Constitution of the authorities are almost uniform that this ratification of an
state by the Governor in swearing fidelity to it and proclaiming it, as unauthorized act by the people (and the people are the principal in
directed thereby; by the Legislature in its formal official act adopting a joint this instance) renders the act valid and binding.”
169/326 170
It has likewise been held that it is not necessary that voters Jan. 17, 1973 implement some of the reforms and had been ratified
ratifying the new Constitution are registered in the book of voters; it in Sec. 3(2) of Article XVII of the 1973 Constitution.
is enough that they are electors voting on the new Constitution. Petitioners cannot safely state that during martial law the
(Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied). majority of the people cannot freely vote for these reforms and are
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd not complying with the implementing decrees promulgated by the
370, 375), the Supreme Court of Wisconsin ruled that “irregularity President.
in the procedure for the submission of the proposed constitutional Free election is not inevitably incompatible with martial law. We
amendment will not defeat the ratification by the people.” had free elections in 1951 and 1971 when the opposition won six out
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO of eight senatorial seats despite the suspension of the privileges of
2nd 769), the Alabama Supreme Court pronounced that “the the writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14,
irregularity in failing to publish the proposed constitutional 1971, 42 SCRA 448), which suspension implies constraint on
amendment once in each of the 4 calendar weeks next preceding the individual freedom as the proclamation
calendar week in which the election was held or once in each of the
221
7-day periods immediately preceding the day of the election as
required by the Constitution, did not invalidate the amendment
which was ratified by the people.” VOL. 50, MARCH 31, 1973 221
The same principle was reiterated in 1961 by the Mississippi
220
of martial law. In both situations, there is no total blackout of human
220 SUPREME COURT REPORTS ANNOTATED rights and civil liberties.
All the local governments, dominated either by Nacionalistas or
Javellana vs. The Executive Secretary Liberals, as well as officials of the Legislative and Executive
branches of the government elected and/or appointed under the 1935
Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), Constitution have either recognized or are now functioning under
where they admitted irregularities or illegalities committed in the the 1973 Constitution, aside from the fact of its ratification by the
procedure for submission of the proposed constitutional amendment sovereign people through the Citizens Assemblies. Ninety-five (95)
to the people for ratification consisted of: “(a) the alleged failure of of a total of one hundred ten (110) members of the House of
the county election commissioners of the several counties to provide Representatives including the Speaker and the Speaker Pro Tempore
a sufficient number of ballot boxes ‘secured by good and substantial as well as about eleven (11) Congressmen who belong to the Liberal
locks,’ as provided by Section 3249, Code of 1942, Rec., to be used Party and fifteen (15) of a total of twenty-four (24) senators
in the holding of the special election on the constitutional including Liberal senators Edgar U. Ilarde and John Osmeña opted
amendment, and (b) the alleged failure of the State Election to serve in the Interim Assembly, according to the certification of the
Commissioners to comply with the requirements of Code Sections Commission on Elections dated February 19, 1973 (Annex
3204 and 3205 in the appointment of election commissioners in each Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165).
of the 82 counties. The irregularities complained of, even if proved, Only the five (5) petitioners in L-36165 close their eyes to a fait
were not such irregularities would have invalidated the election.” accompli. All the other functionaries recognize the new government
(Emphasis supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892; and are performing their duties and exercising their powers under
154 Fla. 663). the 1973 Constitution, including the lower courts. The civil courts,
Even prior to the election in November, 1970 of delegates of the military tribunals and quasi-judicial bodies created by presidential
Constitutional Convention and during the deliberations of the decrees have decided some criminal, civil and administrative cases
Constitutional Convention from June 1, 1971 until martial law was pursuant to such decrees. The foreign ambassadors who were
proclaimed on Sept. 21, 1972, the salient reforms contained in the accredited to the Republic of the Philippines before martial law
1973 Constitution which have long been desired by the people, had continue to serve as such in our country; while two new
been thoroughly discussed in the various committees of the ambassadors have been accepted by the Philippines after the
Constitutional Convention, on the floor of the Convention itself, in ratification of the 1973 Constitution on January 17, 1973. Copies of
civic forums and in all the media of information. Many of the the 1973 Constitution had been furnished the United Nations
decrees promulgated by the Chief Executive from Sept. 22, 1972 to Organization and practically all the other countries with which the
Philippines has diplomatic relations. No adverse reaction from the
171/326 172
United Nations or from the foreign states has been manifested. On law. While the judiciary should protect the rights of the people with great
the contrary, our permanent delegate to the United Nations care and jealousy, because this is its duty, and also because, in times
Organization and our diplomatic representatives abroad appointed
223
before martial law continue to remain in their posts and are
performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the VOL. 50, MARCH 31, 1973 223
provisions of the 1973 Constitution by requiring all election Javellana vs. The Executive Secretary
222
of great popular excitement, it is usually their last resort, yet it should at the
same time be careful to overstep the proper bounds of its power, as being
222 SUPREME COURT REPORTS ANNOTATED perhaps equally dangerous; and especially where such momentous results
might follow as would be likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of the work of the
convention.
registrars to register 18-year olds and above whether literates or not, “After the American Revolution the state of Rhode Island retained its
who are qualified electors under the 1973 Constitution (see pars. 1- colonial character as its constitution, and no law existed providing for the
A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy making of a new one. In 1841 public meetings were held, resulting in the
in L-36165). election of a convention to form a new one, — to be submitted to a popular
In brief, it cannot be said that the people are ignoring the 1973 vote. The convention framed one, submitted it to a vote, and declared it
Constitution and the government which is enforcing the same for adopted. Elections were held for state officers, who proceeded to organize a
over 10 weeks now With the petitioners herein, secessionists, rebels new government. The charter government did not acquiesce in these
and subversives as the only possible exceptions, the rest of the proceedings, and finally declared the state under martial law. It called
citizenry are complying with decrees, orders and circulars issued by another convention, which in 1843 formed a new constitution. Whether the
the incumbent President implementing the 1973 Constitution. charter government, or the one established by the voluntary convention, was
Of happy relevance on this point is the holding in Miller vs. the legitimate one, was uniformly held by the courts of the state not to be a
Johnson, 18 SW 522: judicial, but a political question; and the political department having
“If a set of men, not selected by the people according to the forms of law, recognized the one, it was held to be the duty of the judiciary to follow its
were to formulate an instrument and declare it the constitution, it would decision. The supreme court of the United States, in Luther v. Borden, 7
undoubtedly be the duty of the courts declare its work a nullity. This would How. 1, while not expressly deciding the principle, as it held the federal
be revolution, and this the courts of the existing government must resist court, yet in the argument approves it, and in substance says that where the
until they are overturned by power, and a new government established. The political department has decided such a matter the judiciary should abide
convention, however, was the offspring of law. The instrument which we are by it.
asked to declare invalid as a constitution has been made and promulgated “Let us illustrate the difficulty of a court deciding the question: Suppose
according to the forms of law. It is a matter of current history that both the this court were to hold that the convention, when it reassembled, had no
executive and legislative branches of the government have recognized its power to make any material amendment, and that such as were made are
validity as a constitution, and are now daily doing so. Is the void by reason of the people having theretofore approved the instrument.
question, therefore, one of a judicial character? It is our undoubted duty, if Then, next, this court must determine what amendments were material; and
a statute be unconstitutional to so declare it; also, if a provision of the state we find the court, in effect, making a constitution. This would be arrogating
constitution be in conflict with the federal constitution, to hold the former sovereignty to itself. Perhaps the members of the court might differ as to
invalid. But this is a very different case. It may be said, however, that, for what amendments are material, and the result would be confusion and
every violation of or non-compliance with the law, there should be a remedy anarchy. One judge might say that all the amendments, material and
in the courts. This is not, however, always the case. For instance, the power immaterial, were void; another, that the convention had then the implied
of a court as to the acts of the other departments of the government is not an power to correct palpable errors, and then the court might differ as to what
absolute one, but merely to determine whether they have kept within amendments are material. If the instrument as ratified by the people could
constitutional limits, it is a duty rather than a power, The judiciary cannot not be corrected or altered at all, or if the court must determine what
compel a co-equal department to perform a duty. It is responsible to the changes were material, then the instrument, as passed upon by the people or
people; but if it does act, then, when the question is properly presented, it is as fixed by the court would be lacking a promulgation by the
the duty of the court to say whether it has conformed to the organic 224
173/326 174
224 SUPREME COURT REPORTS ANNOTATED method of giving assent to the new Charter. In this respect, WE
Javellana vs. The Executive Secretary cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973,
convention; and, if this be essential, then the question would arise, what We affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3,
constitution are we now living under, and what is the organic law of the Jan. 8, 1973), was re-elected by the vote of over 5 million electors in
state? A suggestion of these matters shows what endless confusion and harm 1969 for another term of four years until noon of December 30,
to the state might and likely would arise. If, through error of opinion, the 1973 under the 1935 Constitution. This Court, not having a similar
convention exceeded its power, and the people are dissatisfied, they have mandate by direct fiat from the sovereign people, to execute the law
ample remedy, without the judiciary being asked to overstep the proper and administer the affairs of government, must restrain its
limits of its power. The instrument provides for amendment and change. If a enthusiasm to sally forth into the domain of political action
wrong has been done, it can, in the proper way in which it should be expressly and exclusively reserved by the sovereign people
remedied, is by the people acting as a body politic. It is not a question of themselves.
whether merely an amendment to a constitution, made without calling a The people in Article XV of the 1935 Constitution did not intend
convention, has been adopted, as required by that constitution. If it provides to tie their hands to a specific procedure for popular ratification of
how it is to be done, then, unless the manner be followed, the judiciary, as their organic law. That would be incompatible with their sovereign
the interpreter of that constitution, will declare the amendment character of which We are reminded by Section 1, of Article II of
invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. both the 1935 and the 1973 Constitutions.
609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep. 835. But it is a case where a The opinion of Judge Thomas McIntire Cooley that the sovereign
new constitution has been formed and promulgated according to the forms people cannot violate the procedure for ratification which they
of law. Great interests have already arisen under it; important rights exist themselves define in their Constitution, cannot apply to a unitary
by virtue of it; persons have been convicted of the highest crime known to state like the Republic of the Philippines. His opinion expressed in
the law, according to its provisions; the political power of the government 1868 may apply to a Federal State like the United States, in order to
has in many ways recognized it; and, under such circumstances, it is our secure and preserve the existence of the Federal Republic of the
duty to treat and regard it as a valid constitution, and now the organic law United States against any radical innovation initiated by the citizens
of our commonwealth. of the fifty (50) different states of the American Union, which states
“We need not consider the validity of the amendments made after the may be jealous of the powers of the Federal government presently
convention reassembled. If the making of them was in excess of its powers, granted by the American Constitution. This dangerous possibility
yet, as the entire instrument has been recognized as valid in the manner does not obtain in the case of our Republic.
suggested, it would be equally an abuse of power by the judiciary and Then again, Judge Cooley advanced the aforesaid opinion in
violative of the rights of the people, — who can and properly should remedy 1868 when he wrote his opus “Constitutional Limitations.”*
the matter, if not to their liking, — if it were to declare the instrument of a
portion invalid, and bring confusion and anarchy upon the state. (italics _______________
supplied). * In 1880, he also wrote his “Constitutional Law.” Judge Cooley, who was born in
Attica, New York in 1824, died in 1898. Judge Cooley was also professor and later
If this Court inquires into the validity of Proclamation No. 1102 dean of the Law Department of the University of Michigan and Justice of the State
and consequently of the adoption of the 1973 Constitution it would Supreme Court of Michigan from 1864 to 1885, when he failed to win re-election to
be exercising a veto power on the act of the sovereign people, of the court.
whom this Court is merely an agent, which to say the least, would be
anomalous. This Court cannot dictate to our principal, the sovereign 226
people, as to how the approval of the new Constitution should be
manifested or expressed. The sovereign people have spoken and we
must abide by their decision, regardless of our notion as to what is
the proper Javellana vs. The Executive Secretary
225
(Vol. 6, Encyclopedia Brit., 1969 ed., pp. 445 446). It is possible
that, were he live today, in a milieu vastly different from 1868 to
VOL. 50, MARCH 31, 1973 225 1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the
declaration by the President in Proclamation No. 1102 that the
175/326 176
people through their Citizens’ Assemblies had overwhelmingly lives and the lives of their progenies, are entitled as much as the
approved the new Constitution due regard to a separate, coordinate educated, the law abiding, and those who are 21 years of age or
and co-equal branch of the government demands adherence to the above to express their conformity or non conformity to the proposed
presumption of correctness of the President’s declaration. Such Constitution, because their stake under the new Charter is not any
presumption is accorded under the law and jurisprudence to officials less than the stake of the more fortunate among us. As a matter of
in the lower levels of the Executive branch, there is no over-riding fact, these citizens, whose juridical personality or capacity to act is
reason to deny the same to the Chief of State as head of the limited by age, civil interdiction or ignorance deserve more
Executive Branch. WE cannot reverse the rule on presumptions, solicitude from the State than the rest of the citizenry. In the ultimate
without being presumptuous, in the face of the certifications by the analysis, the inclusion of those from 15 years up to below 21 years
Office the Secretary of the Department of Local Government and old, the ex-convicts and the ignorant, is more democratic as it
Community Development. (Annexes 1 to 1-E, Annexes 2 to 2-O to broadens the base of democracy and therefore more faithful to the
the compliance with manifestation filed by the Solicitor General on express affirmation in Section 1 of Article II of the Declaration of
behalf of the respondents public officers dated March 7, 1973). Principles that “sovereignty resides in the people and all government
There is nothing in the records that contradicts, much less overthrow authority emanates from them.”
the results of the referendum as certified. Much less are We justified Moreover, ex-convicts granted absolute pardon are qualified to
in reversing the burden of proof — by shifting it from the petitioners vote. Not all ex-convicts are banned from voting. Only those who
to the respondents. Under the rules on pleadings, the petitioners have had been sentenced to at least one year imprisonment are
the duty to demonstrate by clear and convincing evidence their claim disenfranchised but they recover their right of suffrage upon
that the people did not ratify through the Citizens’ Assemblies nor expiration of ten years after service of sentence (Sec. 102, 1971 Rev.
adopt by acquiescence the 1973 Constitution. And have failed to do Elec. Code). Furthermore, ex-convicts and imbeciles constitute a
so. very negligible number in any locality or barrio, including the
No member of this Tribunal is justified in resolving the issues localities of petitioners.
posed by the cases at bar on the basis of reports relayed to him from Included likewise in the delegated authority of the President, is
private sources which could be biased and hearsay, aside from the the prerogative to proclaim the results of the plebiscite or the voting
fact that such reports are not contained in the record. Proclamation the Citizens’ Assemblies. Petitioners deny the accuracy or
No. 1102 is not just an ordinary act of the Chief Executive. It is a correctness of Proclamation No. 1102 that the 1973
well-nigh solemn declaration which announces the highest act of the
228
sovereign people — their imprimatur to the basic Charter that shall
govern their lives hereafter — may be for decades, if not for
generations. 228 SUPREME COURT REPORTS ANNOTATED
Petitioners decry that even 15-year olds, ex convicts and
227
Constitution was ratified by the overwhelming vote of close to 15
VOL. 50, MARCH 31, 1973 227 million citizens because there was no official certification to the
results of the same from the Department of Local Governments. But
Javellana vs. The Executive Secretary there was such certification as per Annexes 1 to 1-A to the Notes
submitted by the Solicitor General counsel for respondents public
illiterates were allowed to vote in the Citizens’ Assemblies, despite officers. This should suffice to dispose of this point. Even in the
their admission that the term “Filipino people” in the preamble as absence of such certification, in much the same way that in passing
well as “people” in Sections 1 and 5 of Article II of the 1935 law, Congress or the legislative body is presumed to be in possession
Constitution and in Section 1(3) of Article III of the Bill of Rights of the facts upon which such laws are predicated (Justice Fernando,
includes all Filipino citizens of all ages, of both sexes, whether The Power of Judicial Review, 1967 Ed., pp. 112-113, citing
literate or illiterate, whether peaceful citizens, rebels, secessionists, Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O’Gonmore, et al. vs.
convicts or ex-convicts. Without admitting that ex-convicts voted in Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed
the referendum, about which no proof was even offered, these that the President was in possession of the fact upon which
sectors of our citizenry, whom petitioners seem to regard with Proclamation No. 1102 was based. This presumption is further
contempt or decision and whom petitioners would deny their strengthened by the fact that the Department of Local Governments,
sovereign right to pass upon the basic Charter that shall govern their the Department National Defense and the Philippine Constabulary as
177/326 178
well the Bureau of Posts are all under the President, which offices as petitioners in L-36164 were all participants in the political drama of
his alter ego, are presumptively acting for and in behalf of the this country since 1946. They are witness to the frustrations of well-
President and their acts are valid until disapproved or reprobated by meaning Presidents who wanted to effect the reforms, especially for
the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of the benefit of the landless and the laboring class — how politics and
Interior, 67 Phil. 451). To deny the truth or the proclamation of the political bargaining had stymied the effectuation of such reforms
President as to the overwhelming majority vote in the Citizens’ thru legislation. The eight (8) petitioners in L-36164 and L-36165
Assemblies in favor of the new Constitution, is to charge the may not have participated in the systematic blocking of the desired
President with falsification, which is a most grievous accusation. reforms in Congress or outside of it; but the question may be asked
Under the, rules of pleadings and evidence, the petitioners have the as to what exactly they did to support such reforms. For the last
burden of proof by preponderance of evidence in civil cases and by seven (7) decades since the turn of the century, for the last thirty-five
proof beyond reasonable doubt in criminal prosecutions, where the (35) years since the establishment of the Commonwealth
accused is always presumed to be innocent. Must this constitutional government in 1935 and for the last twenty- seven (27) years since
right be reversed simply because the petitioner all assert the the inauguration of the Republic on July 4, 1946, no tangible
contrary? Is the rule of law they pretend invoke only valid as long as substantial reform had been effected, funded and seriously
it favors them? implemented, despite the violent uprisings in the thirties, and from
The presumption of regularity in the performance of official 1946 to 1952, and the violent demonstrations of recent memory.
functions is accorded by the law and jurisprudence to acts of public Congress and the oligarchs acted like ostriches, “burying their heads
officers whose category in the official hierarchy is very much lower in timeless sand.
than that of the Chief of State. What reason is there to withhold such
230
a presumption in favor of the President? Does the fact that the
President belong to the party in power and that four (4) of the five
(5) senators who are petitioners in 230 SUPREME COURT REPORTS ANNOTATED
VOL. 50, MARCH 31, 1973 229 “Now the hopes for the long-awaited reforms to be within a year or
to are brighter. It would seem therefore to the duty of everyone
Javellana vs. The Executive Secretary including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided
L-36165 belong to the opposition party, justify a discrimination for in the new or 1973 Constitution and thru the means prescribed in
against the President in matters of this nature? Unsupported as their that same Constitution.
word is by any credible and competent evidence under the rules of As stated in Wheeler vs. Board of Trustees, “a court is never
evidence, must the word of the petitioners prevail over that of the justified in placing by implication a limitation upon the sovereign.”
Chief Executive, because they happen to be former senators and This Court in the Gonzales and Tolentino cases transcended its
delegates to the Constitutional Convention? More than any of the proper sphere and encroached upon the province exclusively
petitioners herein in all these cases, the incumbent President realizes reserved to and by the sovereign people. This Court did not heed to
that he risks the wrath of his people being visited upon him and the the principle that the courts are not the fountain of all remedies for
adverse or hostile verdict of history; because of the restrictions on all wrongs. WE cannot presume that we alone can speak with
the civil liberties of his people, inevitable concomitants of martial wisdom as against the judgment of the people on the basic
law, which necessarily entail some degree of sacrifice on the part of instrument which affects their very lives. WE cannot determine what
the citizenry. Until the contrary is established or demonstrated, is good for the people or ought to be their fundamental law. WE can
herein petitioners should grant that the Chief Executive is motivated only exercise the power delegated to Us by the sovereign people, to
by what is good for the security and stability of the country, for the apply and interpret the Constitution and the laws for the benefit of
progress and happiness of the people. All the petitioners herein the people, not against them nor to prejudice them. WE cannot
cannot stand on the proposition that the rights under the 1935 perform an act inimical to the interest of Our principal, who at any
Constitution are absolute and invulnerable to limitations that may be time may directly exercise their sovereign power ratifying a new
needed for the purpose of bringing about the reforms for which the Constitution in the manner convenient to them.
petitioners pretend to be clamoring for and in behalf of the people. It is pertinent to ask whether the present Supreme Court can
The five (5) petitioners in L-36165 and four (4) of the seven (7) function under the 1935 Constitution without being a part of the
179/326 180
government established pursuant thereto. Unlike in the Borden Chief Justice, hoped that the Southern States would be allowed to
case, supra, where there was at least another government claiming to secede peacefully from the Union. That he had no sympathy for the
be the legitimate organ of the state of Rhode Island (although only Negroes was revealed by his decision in Dred Scott vs. Sandford (19
on paper as it had no established organ except Dorr who represented How. 398 [1857]) where he pronounced that the American Negro is
himself to be its head; in the cases at bar there is no other not entitled to the rights of an American citizen and that his status as
government distinct from and maintaining a position against the a slave is determined by his returning to a slave state. One can
existing government headed by the incumbent Chief Executive. (See
232
Taylor vs. Commonwealth, supra). There is not even a rebel
government duly organized as such even only for domestic
purposes, let alone a rebel government engaged in international 232 SUPREME COURT REPORTS ANNOTATED
VOL. 50, MARCH 31, 1973 231 therefore discern his hostility towards President Lincoln when he
decided Ex parte Merryman, which animosity to say the least does
Javellana vs. The Executive Secretary no befit a judicial mind. Such a man could hardly be spoken of as a
hero of the American Bar, least of all of the American nation. The
negotiations. As heretofore stated, both the executive branch and the choice of heroes should not be expressed indiscriminately just to
legislative branch established under the 1935 Constitution had been embellish one’s rhetoric.
supplanted by the government functioning under the 1973 Distinguished counsel in L-36165 appears to have committed
Constitution as of January 17, 1973. The vice president elected another historical error, which may be due to his rhetorical in the
under the 1935 Constitution does not asset any claim to the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this
leadership of the Republic of the Philippines. Can this Supreme effect. On the contrary, Encyclopedia Britannica (Vol. 17
Court legally exist without being part of any government? Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal
Brilliant counsel for petitioners in L-36165 has been quite Henri Philippe Petain as the genuine hero or “Savior of Verdun”;
extravagant in his appraisal of Chief Justice Roger Brooke Taney because he held Verdun against the 1916 offensive of the German
whom he calls the “hero of the American Bar,” because during the army at the cost of 350,000 of his French soldiers, who were then
American civil war he apparently had the courage to nullify the demoralized and plotting mutiny. Certainly, the surviving members
proclamation of President Lincoln suspending the privileges of the of the family of Marshal Petain would not relish the error. And
writ of habeas corpus in Ex parte Merryman (Federal Case No. neither would the members of the clan of Marshal Foch
9487 [1861]). But who exactly was Chief Justice Roger Brooke acknowledge the undeserved accolade, although Marshal Foch has a
Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., distinct place in history on his own merits. The foregoing
1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that clarification is offered in the interest of true scholarship and
he was born in 1777 in Calvert County, Maryland, of parents who historical accuracy, so that the historians, researchers and students
were landed aristocrats as well as slave owners. Inheriting the may not be led astray or be confused by esteemed counsel’s
traditional conservatism of his parents who belonged to the landed eloquence and mastery of the spoken and written word as well as by
aristocracy, Taney became a lawyer in 1799, practiced law and was his eminence as law professor, author of law books, political leader,
later appointed Attorney General of Maryland. He also was a and member of the newly integrated Philippine Bar.
member of the Maryland state legislature for several terms. He was a It is quite intriguing why the eminent counsel and co-petitioner in
leader of the Federalist Party, which disintegrated after the war of L-36164 did not address likewise his challenge to the five (5)
1812, compelling him to join the Democratic Party of Andrew senators who are petitioners in L-36165 to also act as “heroes and
Jackson, also a slave owner and landed aristocrat, who later idealists,” to defy the President by holding sessions by themselves
appointed him first as Attorney General of the United States, then alone in a hotel or in their houses if they can muster a quorum or by
Secretary of the Treasury and in 1836 Chief Justice of the United causing the arrest of other senators to secure a quorum and thereafter
States Supreme Court to succeed Chief Justice John Marshall, in remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et
which position he continued for 28 years until he died on October al., 83 Phil. 17 [1949]), if they believe most vehemently in the
21, 1864. His death “went largely unnoticed and unregretted.” justice and correctness of their position that the 1973 Constitution
Because he himself was a slave owner and a landed aristocrat, Chief has not been validly ratified, adopted or acquiesced in by the people
Justice Taney sympathized with the Southern States and, even while
181/326 182
since January 18, 1973 until the present. The proclaimed conviction Constitution, is a justiciable question, accord all presumption of
of petitioners in L-36165 on this issue would have a ring of validity to the constitutional amendment or the revised or new
Constitution after the government officials or the people have
233
adopted or ratified or acquiesced in the new Constitution or
amendment, although there was an illegal or irregular or no
VOL. 50, MARCH 31, 1973 233 submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935
[1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs.
Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State
credibility, if they proceeded first to hold a rump session outside the vs. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70
legislative building; because it is not unreasonable to demand or to Neb. 211, 97 NW 347; Combs vs. State, 81 Ga. 780, 8 SE 318;
exact that he who exhorts others to be brave must first demonstrate Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70
his own courage. Surely, they will not affirm that the mere filing of Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed
their petition in L-36165 already made them “heroes and idealists.” that the constitutional amendment or the new Constitution should
The challenge likewise seems to insinuate that the members of this not be condemned “unless our judgment its nullity is manifest
Court who disagree with petitioners’ views are materialistic cowards beyond reasonable doubt” (1971 case of Moore vs. Shanahan, 486
or mercenary fence-sitters. The Court need not be reminded of its Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith,
solemn duty and how to perform it. WE refuse to believe that et al., supra).
petitioners and their learned as well as illustrious counsels, scholars Mr. Justice Enrique M. Fernando, speaking for the Court,
and liberal thinkers that they are, do not recognize the sincerity of pronounced that the presumption of constitutionality must persist in
those who entertain opinions that clash with their own. Such an the absence of factual foundation of record to overthrow such
attitude does not sit well with the dictum that “We can differ without presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698,
being difficult; we can disagree without being disagreeable,” which July 31, 1967, 20 SCRA 849).
distinguished counsel in L-36165 is wont to quote. III
WE reserve the right to prepare an extensive discussion of the CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND
other points raised by petitioners, which We do not find now INDEPENDENT OF CONGRESS, EXECUTIVE AND
necessary to deal with in view of Our opinion on the main issue. JUDICIARY.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN The Constitutional Convention is co-ordinate and co-equal with,
THESE FIVE CASES SHOULD BE DISMISSED. as well as independent of, the three grand departments of the
Government, namely, the legislative, the executive and the judicial.
MAKASIAR, J.: As a fourth separate and distinct branch, to emphasize its
Pursuant to Our reservation, We now discuss the other issues independence, the Convention cannot be dictated to by either of the
raised by the petitioners. other three departments as to the content as well as the form of the
II Charter that it proposes. It enjoys the same immunity from
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE’S RATIFICATION, interference or supervision by any of the
ADOPTION OR ACQUIESCENCE CREATES STRONG
PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION. 235
As intimated in the aforecited cases, even the courts, which
affirm the proposition that the question as to whether a constitutional VOL. 50, MARCH 31, 1973 235
amendment or the revised or new Constitution
234
aforesaid branches of the Government in its proceedings, including

234 SUPREME COURT REPORTS ANNOTATED the printing of its own journals (Tañada and Fernando, Constitution
of the Philippines, 1952 ed., Vol. I, pp. 8-9; Malcolm and Laurel,
Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in
that independence, for the purpose of maintaining the same
has been validly submitted to the people for ratification in unimpaired and in order that its work will not be frustrated, the
accordance with the procedure prescribed by the existing Convention has the power to fix the date for the plebiscite and to
183/326 184
provide funds therefor. To deny the Convention such prerogative, to complete its work by the end of November, 1972 that the urgency
would leave it at the tender mercy of both legislative and executive of instituting reforms rendered imperative the early approval of the
branches of the Government. An unsympathetic Congress would not new Constitution, and that the national and local leaders desire that
be disposed to submit the proposed Constitution drafted by the there be continuity in the immediate transition from the old to the
Constitutional Convention to the people for ratification, much less new Constitution.
appropriate the necessary funds therefor. That could have been the If Congress can legally delegate to the Chief Executive or his
fate of the 1973 Constitution, because the same abolished the Senate subaltern the power to promulgate subordinate rules and regulations
by creating a unicameral National Assembly to be presided by a to implement the law, this authority to delegate implementing rules
Prime Minister who wields both legislative and executive powers should not be denied to the Constitutional Convention, a co-equal
and is the actual Chief Executive, for the President contemplated in body.
the new Constitution exercises primarily ceremonial prerogatives. Apart from the delegation to the Chief Executive of the power to
The new Constitution likewise shortened abruptly the terms of the call a plebiscite and to appropriate funds therefor by the
members of the present Congress (whose terms end on December Constitutional Convention thru its Resolution No. 29, the
31, 1973, 1975 and 1977) which provides that the new Constitution organization of the Citizens’ Assemblies for consultation on national
shall take effect immediately upon its ratification (Sec. 16, Article issues, is comprehended within the ordinance-making power of the
XVII, 1973 Constitution). The fact that Section 2 of the same Article President under Section 63 of the Revised Administrative Code,
XVIII secures to the members of Congress membership in the which expressly confers on the Chief Executive the power to
interim National Assembly as long as they opt to serve therein promulgate administrative acts and commands touching on the
within thirty (30) days after the ratification of the proposed organization or mode of operation of the government or re-arranging
Constitution, affords them little comfort; because the convening of or re-adjusting any district, division or part of the Philippines “or
the interim National Assembly depends upon the incumbent disposing of issues of general concern xx xx.” (Emphasis supplied).
President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the Hence, as consultative bodies representing the localities including
foregoing circumstances, the members of Congress, who were the barrios, their creation by the President thru Presidential Decree
elected under the 1935 Constitution, would not be disposed to call a No. 86 of December 31, 1972, cannot be successfully challenged.
plebiscite and appropriate funds therefor to enable the people to pass The employment by the President of these Citizens’
upon the 1973 Constitution, ratification of which means their
237
elimination from the political scene. They will not provide the
means for their own liquidation.
Because the Constitutional Convention, by necessary implication VOL. 50, MARCH 31, 1973 237
as it is indispensable to its independence and effectiveness,
possesses the power to call a plebiscite and to
236 Assemblies for consultation on the 1973 Constitution or on whether

there was further need of a plebiscite thereon, — both issues of
236 SUPREME COURT REPORTS ANNOTATED national concern — is still within the delegated authority reposed in
him by the Constitutional Convention as aforesaid.
Javellana vs. The Executive Secretary It should be noted that Resolution No. 29, which superseded
Resolution No. 5843, does not prescribe that the plebiscite must be
appropriate funds for the purpose, it inescapably must have the conducted by the Commission on Elections in accordance with the
power to delegate the same to the President, who, in estimation of provisions of the 1971 Revised Election Code. If that were the
the Convention can better determine appropriate time for such a intention of the Constitutional Convention in making the delegation,
referendum as well as the amount necessary to effect the same; for it could have easily included the necessary phrase for the purpose,
which reason the Convention thru Resolution No. 29 approved on some such phrase like “to call a plebiscite to be supervised by the
November 22, 1972, which superseded Resolution No. 5843 adopted Commission on Elections in accordance with the provisions of the
on November 16, 1972, proposed to the President “that a decree be 1971 Revised Election Code (or with existing laws).” That the
issued calling a plebiscite for the ratification of the proposed new Constitutional Convention omitted such phrase, can only mean that
Constitution such appropriate date as he shall determine and it left to the President the determination of the manner by which the
providing for the necessary funds therefor, xx,” after stating in plebiscite should be conducted, who shall supervise the plebiscite,
“whereas” clauses that the 1971 Constitutional Convention expected and who can participate in the plebiscite. The fact that said
185/326 186
Resolution No. 29 expressly states “that copies of this resolution as Constitution”; (Annex “1” of Answer, Res. No. 29, Constitutional
approved in plenary session be transmitted to the President of the Convention).
Philippines and the Commission on Elections for implementation,”
did not in effect designate the Commission on Elections as As Mr. Justice Fernando, with whom Messrs. Justices Barredo,
supervisor of the plebiscite. The copies of said resolution that were Antonio and the writer concurred in the Plebiscite Cases, stated:
transmitted to the Commission on Elections at best serve merely to
“x x x Once this work of drafting has been completed, it could itself
notify the Commission on Elections about said resolution, but not to
direct the submission to the people for ratification as contemplated in Article
direct said body to supervise the plebiscite. The calling as well as
XV of the Constitution. Here it did not do so. With Congress not being in
conduct of the plebiscite was left to the discretion of the President,
session, could the President, by the decree under question, call for such a
who, because he is in possession of all the facts funnelled to him by
plebiscite? Under such circumstances, a negative answer certainly could
his intelligence services, was in the superior position to decide when
result in the work of the Convention being rendered nugatory. The view has
the plebiscite shall be held, how it shall be conducted and who shall
been repeatedly expressed in many American state court decisions that to
oversee it.
avoid such undesirable consequence the task of submission becomes
It should be noted that in approving said Resolution No. 29, the
ministerial, with the political branches devoid of any discretion as to
Constitutional Convention itself recognized the validity of, or
validated Presidential Proclamation No. 1081 placing the entire 239
country under martial law by resolving to “propose to President
Ferdinand E. Marcos that a decree be issued calling a plebiscite VOL. 50, MARCH 31, 1973 239
x x x.” The use of the term “decree” is significant for the basic
orders regulating the conduct of all inhabitants are
238 the holding of an election for that purpose. Nor is the appropriation by him
of the amount necessary to be considered as offensive to the Constitution. If
it were done by him in his capacity as President, such an objection would
indeed have been formidable, not to say insurmountable. If the
Javellana vs. The Executive Secretary appropriation were made in his capacity as agent of the Convention to
assure that there be submission to the people, then such an argument loses
issued in that form and nomenclature by the President as the force. The Convention itself could have done so. It is understandable why it
Commander in Chief and enforcer of martial law. Consequently, the should be thus. If it were otherwise, then a legislative body, the
issuance by the President of Presidential Decree No. 73 on appropriating arm of the government, could conceivably make use of such
December 1, 1972 setting the plebiscite on January 15, 1973 and authority to compel the Convention to submit to its wishes, on pain of being
appropriating funds therefor pursuant to said Resolution No. 29, is a rendered financially distraught. The President then, if performing his role as
valid exercise of such delegated authority. its agent, could be held as not devoid of such competence. (pp. 2-3,
Such delegation, unlike the delegation by Congress of the rule- concurring opinion of J. Fernando in L-35925, etc., emphasis supplied).
making power to the Chief Executive or to any of his subalterns,
IV
does not need sufficient standards to circumscribe the exercise of the
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE
power delegated, and is beyond the competence of this Court to
THE 1973 CONSTITUTION
nullify. But even if adequate criteria should be required, the same are
(1) Petitions challenge the 1973 draft as vague and incomplete,
contained in the “Whereas” clauses of the Constitutional Convention
and alluded to their arguments during the hearings on December 18
Resolution No. 29, thus:
and 19, 1972 on the Plebiscite Cases. But the inclusion of
“WHEREAS, the 1971 Constitutional Convention is expected to questionable or ambiguous provisions does not affect the validity of
complete its work of drafting a proposed new Constitution for the Republic the ratification or adoption of the 1973 Constitution itself (Pope vs.
by the end of November, 1972; Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
“WHEREAS, in view of the urgency of instituting reforms, the early Alexander Hamilton, one of the leading founders and defenders
approval of the New Constitution has become imperative; of the American Constitution, answering the critics of the Federal
“WHEREAS, it is the desire of the national and local leaders that there Constitution, stated that: “I never expect to see a perfect work from
be continuity in the immediate political transition from the old to the New imperfect man. The result of the deliberations of all collective
bodies must necessarily be a compound, as well of the errors and
187/326 188
prejudices as of the good sense and wisdom, of the individuals of “Sec. 12. All treaties, executive agreements, and contracts entered into
whom they are composed. The compacts which are to embrace by the Government, or any subdivision, agency, or instrumentality thereof,
thirteen distinct States in a common bond of amity and union, must including government-owned or controlled
necessarily be a compromise of as many dissimilar interests and
241
inclinations. How can perfection spring from such materials?” (The
Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the VOL. 50, MARCH 31, 1973 241
240
corporations, are hereby recognized as legal, valid and binding. When the
240 SUPREME COURT REPORTS ANNOTATED national interest so requires, the incumbent President of the Philippines or
the interim Prime Minister may review all contracts, concessions, permits,
or other forms of privileges for the exploration, development, exploitation,
or utilization of natural resources entered into, granted, issued or acquired
ground that it contains provisions which are ultra vires or beyond before the ratification of this Constitution.”
the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942,
government from Presidential to Parliamentary and including such L-35948, L-35953, L-35961, L-35965, & L-35979), Chief Justice
provisions as Section 3 of Article IV, Section 15 of Article XIV and Roberto Concepcion, concurred in by Justices Fernando, Barredo,
Sections 3(2) and 12 of Article XVII in the 1973 Constitution. Antonio and the writer, overruled this objection, thus:
Article IV —
“x x x Regardless of the wisdom and moral aspects of the contested
“Sec. 3. The right of the people to be secure in their persons, houses, provisions of the proposed Constitution, it is my considered view that
papers, and effects against unreasonable searches and seizures of whatever the Convention was legally deemed fit to propose — save perhaps
nature and for any purpose shall not be violated, and no search warrant or what is or may be insistent with what is now known, particularly in
warrant of arrest shall issue except upon probable cause to be determined by international law, as Jus Cogens — not only because the Convention
the judge, or such other responsible officer as may be authorized by law, exercised sovereign powers delegated thereto by the people —
after examination under oath or affirmation of the complainant and the although insofar only as the determination of the proposals to be
witnesses may produce, and particularly describing the place to be searched, made and formulated by said body is concerned — but also, because
and the persons or things to be seized.” said proposals cannot be valid as part of our Fundamental Law unless
and until ‘approved by the majority of the votes cast at an election
Article XIV — which’ said proposals ‘are submitted to the people for their
“Sec. 15. Any provision of paragraph one, Section fourteen, Article ratification,’ as provided in Section 1 of Article XV of the 1935
Eight and of this Article notwithstanding, the Prime Minister may enter into Constitution.” (pp. 17-18, Decision in L-35925, etc.).
international treaties or agreements as the national welfare and interest may
This Court likewise enunciated in Del Rosario vs. Comelec (L-
require.” (Without the consent of the National Assembly.)
32476, Oct. 20, 1970, 35 SCRA 367) that the Constitutional
Article XVII — Convention has the authority to “entirely overhaul the present
Constitution and propose an entirely new Constitution based on an
“Sec. 3(2) All proclamations, orders, decrees, instructions, and acts ideology foreign to the democratic system x x x; because the same
promulgated, issued, or done by the incumbent President shall be part of the will be submitted to the people for ratification. Once ratified by the
law of the land, and shall remain valid, legal, binding and effective even sovereign people, there can be no debate about the validity of the
after lifting of martial law or the ratification of this Constitution, unless new Constitution.”
modified, revoked, or superseded by subsequent proclamations, orders, Mr. Justice Fernando, concurring in the same Plebiscite Cases,
decrees, instructions, or other acts of the incumbent President, or unless cited the foregoing pronouncement in the Del Rosario case, supra,
expressly and explicitly modified or repealed by the regular National and added: “xx xx it seems to me a sufficient answer that once
Assembly. convened, the area open for deliberation to a constitutional
xx xx xx xx xx convention xx xx, is practically limitless” (citing
242
189/326 190
ARTICLE XV OF 1935 CONSTITUTION DOES NOT

242 SUPREME COURT REPORTS ANNOTATED PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF 1973
CONSTITUTION.
Javellana vs. The Executive Secretary (1) Article XV of the 1935 Constitution simply provides that
“such amendments shall be valid as part of this Constitution when
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch approved by a majority of the votes cast at an election at which the
Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 amendments are submitted to the people for ratification.”
NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. But petitioners construe the aforesaid provision to read: “Such
543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; amendments shall be valid as part of this Constitution when
Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. approved by a majority of the votes cast at an election called by
Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, Congress at which the amendments are submitted for ratification by
292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, the qualified electors defined in Article V hereof, supervised by the
247 NW 474, 262 Mich. 338 [1933]). Commission on Elections in accordance with the existing election
Mr. Justice Barredo, in his concurring opinion in said Plebiscite law and after such amendments shall have been published in all the
Cases, expressed the view “that when the people elected the newspapers of general circulation for at least four months prior to
delegates to the Convention and when the delegates themselves were such election.”
campaigning, such limitation of the scope of their function and This position certainly imposes limitation on the sovereign
objective was not in their minds.” people, who have the sole power of ratification, which imposition by
V the Court is never justified (Wheeler vs. Board of Trustees, supra).
1973 CONSTITUTION DULY ADOPTED AND In effect, petitioners and their counsels are amending by a
PROMULGATED. strained and tortured construction Article XV of the 1935
Petitioners next claim that the 1971 Constitutional Convention Constitution. This is a clear case of usurpation of sovereign power
adjourned on November 30, 1972 without officially promulgating they do not possess — through some kind of escamotage. This Court
the said Constitution in Filipino as required by Sections 3(1) of should not commit such a grave error in the guise of judicial
Article XV on General Provisions of the 1973 Constitution. This interpretation.
claim is without merit because their Annex “M” is the Filipino In all the cases where the court held that illegal or irregular
version of the 1973 Constitution, like the English version, contains submission, due to absence of substantial compliance with the
the certification by President Diosdado Macapagal of the procedure prescribed by the Constitution and/or the law, nullifies the
Constitutional Convention, duly attested by its Secretary, that the proposed amendment or the new Constitution, the procedure
proposed Constitution, approved on second reading on the 27th day prescribed by the state Constitution is so detailed that it specifies
of November, 1972 and on third reading in the Convention’s 291st that the submission should be at a general or special election, or at
plenary session on November 29, 1972 and accordingly signed on the election for members of the State
November 1972 by the delegates whose signatures are thereunder
244
affixed. It should be recalled that Constitutional Convention
President Diosdado Macapagal was, as President of the Republic
1962 to 1965, then the titular head of the Liberal Party to which four 244 SUPREME COURT REPORTS ANNOTATED
(4) of the petitioners in L-36165 including their counsel, former
Senator Jovito Salonga, belong. Are they repudiating and disowning
their former party leader and benefactor?
legislature only or of all state officials only or of local officials only,
243 or of both state and local officials; fixes the date of the election or
plebiscite limits the submission to only electors or qualified electors;
VOL. 50, MARCH 31, 1973 243 prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite;
Javellana vs. The Executive Secretary and designates the officer to conduct the plebiscite, to canvass and to
certify the results, including the form of the ballot which should so
state the substance of the proposed amendments to enable the voter
VI to vote on each amendment separately or authorizes expressly the
Constitutional Convention or the legislature to determine the
191/326 192
procedure or certain details thereof. See the State Constitutions of proclamation of the governor. Representation in the legislature shall be
Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado based upon population, and such basis of representation shall not be
[1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois changed by constitutional amendments.
[1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky “Sec. 285. Form of ballot for amendment. Upon the ballots used at all
[1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; elections provided for in section 284 of this Constitution, the substance or
Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and subject matter of each proposed amendment shall be so printed that the
Missouri [1945]). nature thereof shall be clearly indicated. Following each proposed
As typical examples: amendment on the ballot shall be printed the word “Yes” and immediately
Constitution of Alabama (1901): under that shall be printed the word “No.” The choice of the elector shall be
indicated by a cross mark made by him or under his direction, opposite the
“Article XVIII. Mode of Amending the Constitution word expressing his desire, and no amendment shall be adopted unless it
“Sec. 284. Legislative Proposals. Amendments may be proposed to this receives the affirmative vote of a majority of all the qualified electors who
Constitution by the legislature in the manner following: The proposed vote at such election.”
amendments shall be read in the house in which they originate on three
several days, and, if upon the third reading, three-fifths of all the members Constitution of Arkansas (1874):
elected to that house shall vote in favor thereof, the proposed amendments
shall be sent to the other house, in which they shall likewise be read on three “Article XIX. Miscellaneous Provisions.
several days, and if upon the third reading, three-fifths of all the members “Sec. 22. Constitutional amendments. Either branch of the General
elected that house shall vote in favor of the proposed amendments, Assembly at a regular session thereof may propose amendments to this
the legislature shall order an election by the qualified electors of the state Constitution, and, if the same be agreed to by a majority of all the members,
upon such proposed amendments, to be held either at the general election elected to each house, such proposed amendments shall be entered on the
next succeeding the session of the legislature at which the amendments are journal with the yeas and nays, and published in at least one newspaper in
proposed or upon another day appointed by the legislature, not less than each county, where a newspaper is published, for six months immediately
three months after the final adjournment of the session of the legislature at preceding the next general election for Senators and Representatives, at
which the amendments were proposed. Notice of such election, together which time the same shall be submitted to the electors of the State for
with the proposed amendments, shall be given by proclamation of the 246
governor, which shall be published in every county in such manner as the
legislature shall direct, for at least eight successive weeks next preceding the
day appointed for such election. On the day so
245
approval or rejection, and if a majority of the electors voting at such

VOL. 50, MARCH 31, 1973 245 election adopt such amendments, the same shall become a part of this
Javellana vs. The Executive Secretary Constitution; but no more than three amendments shall be proposed or
submitted at the same time. They shall be so submitted as to enable the
appointed an election shall be held for the vote of the qualified electors of electors to vote on each amendment separately.
the state upon the proposed amendments. If such election be held on the day
Constitution of Kansas (1861):
of the general election, the officers of such general election shall open a poll
for the vote of the qualified electors upon the proposed amendments; if it be “Article XIV. Amendments.
held on a day other than that of a general election, officers for such election “Sec. 1. Proposal of amendments; publications; elections. Propositions
shall be appointed; and the election shall be held in all things in accordance for the amendment of this constitution may be made by either branch of the
with the law governing general elections. In all elections upon such legislature; and if two thirds of all the members elected to each house shall
proposed amendments, the votes cast thereat shall be canvassed, tabulated, concur therein, such proposed amendments, together with the yeas and nays,
and returns thereof be made to the secretary of state, and counted, in the shall be entered on the journal; and the secretary of state shall cause the
same manner as in elections for representatives to the legislature; and if it same to be published in at least one newspaper in each county of the state
shall thereupon appear that a majority of the qualified electors who voted at where a newspaper is published, for three months preceding the next
such election upon the proposed amendments voted in favor of the same, election for representatives, at which time, the same shall be submitted to
such amendments shall be valid to all intents and purposes as parts of this the electors, for their approval or rejection; and if a majority of the electors
Constitution. The result of such election shall be made known by voting on said amendments, at said election, shall adopt the amendments,
193/326 194
the same shall become a part of the constitution. When more than one election called by the governor prior thereto, at which he may submit any of
amendment shall be submitted at the same time, they shall be so submitted the amendments. No such proposed amendment shall contain more than one
as to enable the electors to vote on each amendments separately; and not amended and revised article of this constitution, or one new article which
more than three propositions to amend shall be submitted at the same shall not contain more than one subject and matters properly connected
election.” therewith. If possible, each proposed amendment shall be published once a
week for two consecutive weeks in two newspapers of different political
Constitution of Maryland (1867): faith in each county, the last publication to be not more than thirty nor less
than fifteen days next preceding the election. If there be but one newspaper
“Article XIV. Amendments to the Constitution.
in any county, publication of four consecutive weeks shall be made. If a
“Sec. 1. Proposal in general assembly; publication; submission to voters;
majority of the votes cast thereon is in favor of any amendment, the same
governor’s proclamation. The General Assembly may propose Amendments
shall take effect at the end of thirty days after the election. More than one
to this Constitution; provided that each Amendment shall be embraced in a
amendment at the same election shall be so submitted as to enable the
separate bill, embodying the Article or Section, as the same will stand when
electors to vote on each amendment separately.”
amended and passed by three fifths of all the members elected to each of the
two Houses, by yeas and nays, to be entered on the Journals with the Article XV of the 1935 Constitution does not require a specific
proposed Amendment. The bill or bills proposing amendment or procedure, much less a detailed procedure for submission or
amendments shall be published by order of the Governor, in at least two ratification. As heretofore stated, it does not
newspapers, in each County, where so many may be published, and where
not more than one may be published, then in the newspaper, and in three 248
newspapers published in the City of Baltimore, once a week for four weeks
immediately preceding the next ensuing general
VOL. 50, MARCH 31, 1973 247 specify what kind of election at which the new Constitution shall be
Javellana vs. The Executive Secretary submitted; nor does it designate the Commission on Elections to
supervise the plebiscite. Neither does it limit the ratification to the
election, at which the proposed amendment or amendments shall be qualified electors as defined in Article V of the 1935 Constitution.
submitted, in a form to be prescribed by the General Assembly, to the Much less does it require the publication of the proposed
qualified voters of the State for adoption or rejection. The votes cast for and Constitution for any specific period before the plebiscite nor does it
against said proposed amendment or amendments, severally, shall be even insinuate that the plebiscite should be supervised in accordance
returned to the Governor, in the manner prescribed in other cases, and if it with the existing election law.
shall appear to the Governor that a majority of the votes cast at said election (2) As aforequoted, Article XV does not indicate the procedure
on said amendment or amendments, severally, were cast in favor thereof, the for submission of the proposed Constitution to the people for
Governor shall, by his proclamation, declare the said amendment or ratification. It does not make any reference to the Commission on
amendments having received said majority of votes, to have been adopted Elections as the body that shall supervise the plebiscite. And Article
by the people of Maryland as part of the Constitution thereof, and XV could not make any reference to the Commission on Elections
henceforth said amendment or amendments shall be part of the said because the original 1935 Constitution as ratified on May 14, 1935
Constitution. When two or more amendments shall be submitted in the by the people did not contain Article X on the Commission on
manner aforesaid, to the voters of this State at the same election, they shall Elections, which article was included therein pursuant to an
be so submitted as that each amendment shall be voted on separately. amendment by that National Assembly proposed only about five (5)
years later — on April 11, 1940, ratified by the people on June 18,
Constitution of Missouri (1945): 1940 as approved by the President of the United States on December
1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715;
“Article XII. Amending the Constitution.
Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said
“Sec. 2(b). Submission of amendments proposed by general assembly or
that the original framers of the 1935 Constitution as ratified May 14,
by the initiative. All amendments proposed by the general assembly or by
1935 intended that a body known as the Commission on Elections
the initiative shall be submitted to the electors for their approval or rejection
should be the one to supervise the plebiscite, because the
by official ballot title as may be provided by law, on a separate ballot
Commission on Elections was not in existence then as was created
without party designation, at the next general election, or at a special
195/326 196
only by Commonwealth Act No. 607 approved on August 22, 1940 both sexes. But in Section 5 of the same Article II on social justice,
and amended by Commonwealth Act No. 657 approved on June 21, the term “people” comprehends not only Filipino citizens but also all
1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, aliens residing in the country of all ages and of both sexes. Likewise,
1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, that is the same connotation of the term “people” employed in
708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution of Section 1(3) of Article III on the Bill of Rights concerning searches
the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19). and seizures.
Because before August, 1940 the Commission on Election was
250
not yet in existence, the former Department of Interior (now
Department of Local Governments and Community Development)
supervised the plebiscites on the 1937 amendment on woman’s 250 SUPREME COURT REPORTS ANNOTATED
suffrage, the 1939 amendment to the Ordinance appended to the
1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress)
and the three

249 When the 1935 Constitution wants to limit action or the exercise
of a right to the electorate, it does so expressly as the case of the
VOL. 50, MARCH 31, 1973 249 election of senators and congressmen. Section 2 Article VI expressly
provides that the senators “shall be chosen at large by the qualified
Javellana vs. The Executive Secretary electors of the Philippines as may provided by law.” Section 5 of the
same Article VI specifically provides that congressmen shall “be
1940 amendments on the establishment of a bicameral Congress, the elected by the qualified electors.” The only provision that seems to
re-election of the President and the Vice-President, and the creation sustain the theory of petitioners that the term “people” in Article XV
of the Commission on Elections (ratified on June 18, 1940). The should refer to the qualified electors as defined in Article V of the
supervision of said plebiscites by the then Department of Interior 1935 Constitution is the provision that the President and Vice-
was not automatic, but by virtue of an express authorization in President shall be elected “by direct vote of the people.” (Sec. 2 of
Commonwealth Act Nos. 34, 49 and 517. Art. VII of the 1935 Constitution). But this alone cannot be
If the National Assembly then intended that the Commission on conclusive as to such construction, because of explicit provisions of
Elections should also supervise the plebiscite for ratification of Sections 2 and 5 of Article VI, which specifically prescribes that the
constitutional amendments or revision, it should have likewise senators and congressmen shall be elected by the qualified electors.
proposed the corresponding amendment to Article XV by providing As aforesaid, most of the constitutions of the various states of the
therein that the plebiscite on amendments shall be supervised by the United States, specifically delineate in detail procedure of
Commission on Elections. ratification of amendments to or revision of said Constitutions and
3) If the framers of the 1935 Constitution and the people in expressly require ratification by qualified electors, not by the generic
ratifying the same on May 14, 1935 wanted that only the qualified term “people.”
voters under Article V of the 1935 Constitution should participate in The proposal submitted to the Ozamis Committee on the
the referendum on any amendment or revision thereof, they could Amending Process of the 1934-35 Constitutional
have provided the same in 1935 or in the 1940 amendment by just Convention satisfied that the amendment shall be submitted to
adding a few words to Article XV by changing the last phrase to qualified election for ratification. This proposal was not accepted
“submitted for ratification to the qualified electors as defined in indicating that the 1934-35 Constitutional Convention did intend to
Article V hereof,” or some such similar phrases. limit the term “people” in Article XV of the 1935 Constitution to
Then again, the term “people” in Article XV cannot be qualified electors only. As above demonstrated, the 1934-35
understood to exclusively refer to the qualified electors under Article Constitutional Convention limits the use of the term “qualified
V of the 1935 Constitution because the said term “people” as used in electors” to elections of public officials. It did not want to tie the
several provisions of the 1935 Constitution, does not have a uniform hands of succeeding future constitutional conventions as to who
meaning. Thus in the preamble, the term “Filipino people” refer, to should ratify the proposed amendment or revision.
all Filipino citizens of all ages of both sexes. In Section 1 of Article (4) It is not exactly correct to opine that Article XV of 1935
II on the Declaration of Principles, the term “people” in whom Constitution on constitutional amendment contemplates the
sovereignty resides and from whom all government authority automatic applicability of election laws to plebiscites on proposed
emanates, can only refer also to Filipino citizens of all ages and of constitutional amendments or revision.
197/326 198
251 held throughout the Philippines on Tuesday, October 24, 1939”; that
the amendments to said Constitution proposed in “Res. No. 38,
adopted on the same date, shall be submitted at following election of
VOL. 50, MARCH 31, 1973 251
local officials,” (Sec. 1, Com. Act No. 492) that the said
Javellana vs. The Executive Secretary amendments shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least ten (10) days prior
to the elections; that copies thereof shall be posted not later than
The very phraseology of the specific laws enacted by the October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be
National Assembly and later by Congress, indicates that there is conducted according to provisions of the Election Code insofar as
need of a statute expressly authorizing the application of the election the same may be applicable; that within thirty (30) days after the
laws to plebiscites of this nature. Thus, Com. Act No. 34 on the election, Speaker of the National Assembly shall request the
woman’s suffrage amendment enacted on September 30, 1936, President to call a special session of the Assembly for the purpose of
consists of 12 sections and, aside from providing that “there shall be canvassing the returns and certify the results thereof (Sec. 6, Com.
held a plebiscite on Friday, April 30, 1937, on the question of Act No. 492).
woman’s suffrage xx and that said amendment shall be published in Commonwealth Act No. 517, consisting of 11 sections, was
the Official Gazette in English and Spanish for three consecutive approved on April 25, 1940 and provided, among others: that the
issues at least fifteen (15) days prior to said election, xx and shall be plebiscite on the constitutional amendments providing bicameral
posted in a conspicuous place in its municipal and provincial office Congress, re-election of the President and Vice-President, and the
building and in its polling place not later than April 22, 1937” (Sec. creation of a Commission on Elections shall be held at a general
12, Com. Act No. 34), specifies that the provisions of the Election election on June 18, 1940 (Sec. 1); that said amendments shall be
Law regarding, the holding of a special election, insofar as said published in three consecutive issues of the Official Gazette in
provisions are not in conflict with it, should apply to the said English and Spanish at least 20 days prior to the election and posted
plebiscite (Sec. 3, Com. Act No. 34); and, that the votes cast in every local government office building and polling place not later
according to the returns of the board of inspectors shall be counted than May 18, 1940 (Sec. 2); that the election shall be conducted in
by the National Assembly (Sec. 10, Com. Act No. 34). conformity with the Election Code insofar as the same may be
The election laws then in force before 1938 were found in applicable (Sec. 3) that copies of the returns shall be forwarded to
Sections 392-483 of the Revised Administrative Code. the Secretary of National Assembly and the Secretary of Interior
Sec. 1 of Com. Act No. 357, the previous Election Code enacted (Sec. 7); that the National Assembly shall canvass the returns to
on August 22, 1938, makes it expressly applicable to plebiscites. Yet certify the results at a special session to be called by President (Sec.
the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. 8).
Act No. 73 calling for the plebiscite on the constitutional Republic Act No. 73 approved on October 21, 1946 calling for a
amendments in 1939, 1940 and 1946, including the amendment plebiscite on the parity amendment consists of 8 sections provides
creating the Commission on Elections, specifically provided that the that the Amendment “shall be submitted to the people, for approval
provisions of the existing election law shall apply to such plebiscites or disapproval, at a general election which shall be held on March
insofar as they are not inconsistent with the aforesaid Com. Act Nos. 11, 1947, in accordance with the provisions of this Act” (Sec. 1,
492 and 517, as well as Rep. Act No. 73. Thus — R.A. No. 73); that the said amendment shall be published in English
Commonwealth Act No. 492, enacted on September 19, 1939, and Spanish in three
calling for a plebiscite on the proposed amendments to the
253
Constitution adopted by the National Assembly on September 15,
1939, consists of 8 sections and provides that the proposed
amendments to the Constitution adopted in Resolution No. 39 on VOL. 50, MARCH 31, 1973 253
September 15, 1939 “shall be submitted to the Filipino people for
approval or disapproval at a general election to be
252 consecutive issues of the Official Gazette at least 20 days prior to

the election; that copies of the same shall be posted in a conspicuous
252 SUPREME COURT REPORTS ANNOTATED place and in every polling place not later than February 11,
1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No.
Javellana vs. The Executive Secretary 357 (Election Code) and Com. Act No. 657 creating the
199/326 200
Commission on Elections, shall apply to the election insofar as they are duly registered in the list of barrio assembly members kept by the Barrio
are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that Secretary.
within 30 days after the election, the Senate and House of “The barrio assembly shall meet at least once a year to hear the annual
Representatives shall hold a joint session to canvass the returns and report of the barrio council concerning the activities and finances of the
certify the results thereof (Section 6, R.A. No. 73). barrio.
From the foregoing provisions, it is patent that Article XV of the “It shall meet also at the case of the barrio council or upon written
1935 Constitution does not contemplate nor envision the automatic petition of at least One-Tenth of the members of the barrio assembly.
application of the election law; and even at that, not all the “No meeting of the barrio assembly shall take place unless notice is
provisions of the election law were made applicable because the given one week prior to the meeting except in matters involving public
various laws aforecited contain several provisions which are safety or security in which case notice within a reasonable time shall be
inconsistent with the provisions of the Revised Election Code (Com. sufficient. The barrio captain, or in his absence, the councilman acting as
Act No. 357). Moreover, it should be noted that the period for the barrio captain, or any assembly member selected during the meeting, shall
publication of the copies of the proposed amendments was about 10 act as presiding officer at all meetings of the barrio assembly. The barrio
days, 15 days or 20 days, and for posting at least 4 days, 8 days or secretary or in his absence, any member designated by the presiding officer
30 days. to act as secretary shall discharge the duties of secretary of the barrio
Republic Acts Nos. 180 and 6388 likewise expressly provide that assembly.
the Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as “For the purpose of conducting business and taking any official action in
amended, and Section 2, Rep. Act No. 6388). the barrio assembly, it is necessary that at least one-fifth of the members of
If the Election Code ipso facto applies to plebiscites under the barrio assembly be present to constitute a quorum. All actions shall
Article XV of the 1935 Constitution, there would be no need for require a majority vote of these present at the meeting there being a quorum.
Congress to expressly provide therefor in the election laws enacted “Sec. 5. Powers of the barrio assembly. — The powers of the barrio
after the inauguration of the Commonwealth government under the assembly shall be as follows:
1935 Constitution. “a. To recommend to the barrio council the adoption of measures
(5) Article XV of the 1935 Constitution does not specify who can for the welfare of the barrio;
vote and how they shall vote. Unlike the various State Constitutions “b. To decide on the holding of a plebiscite as provided for
of the American Union (with few exceptions), Article XV does not
255
state that only qualified electors can vote in the plebiscite. As above-
intimated, most of the Constitutions of the various states of the
United States provide for very detailed amending process and VOL. 50, MARCH 31, 1973 255
specify that only qualified electors can vote at such plebiscite or Javellana vs. The Executive Secretary
election.
in Section 6 of this Act;
254
“c. To act on budgetary and supplemental appropriations and
special tax ordinances submitted for its approval by the barrio
254 SUPREME COURT REPORTS ANNOTATED council; and
“d. To hear the annual report council concerning the activities and
finances of the assembly.
“Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio assembly,
Congress itself, in enacting Republic Act No. 3590, otherwise there being a quorum, or when called by at least four members of the barrio
known as the Barrio Charter, which was approved on June 17, 1967 council; Provided, however, That no plebiscite shall be held until after thirty
and superseded Republic Act No. 2370, expanded the membership days from its approval by either body, and such plebiscite has been given
of the barrio assembly to include citizens who are at least 18 years the widest publicity in the barrio, stating the date, time, and place thereof,
of age, whether literate or not, provided they are also residents of the the questions or issues to be decided, action to be taken by the voters, and
barrio for at least 6 months (Sec. 4, R.A. No. 3590). such other information relevant to the holding of the plebiscite.
“Sec. 4. The barrio assembly. — The barrio assembly shall consist of all “All duly registered barrio assembly members qualified to vote may vote
persons who are residents of the barrio for at least six months, eighteen in the plebiscite. Voting procedures may be made either in writing as in
years of age or over, citizens of the Republic of the Philippines and who regular election, and/or declaration by the voters to the board of election
201/326 202
tellers. The board of election tellers shall be the same board envisioned by That said paragraph 2 of Section 6 provides that “all duly
section 8, paragraph 2 of this Act, in case of vacancies in this body, the registered barrio assembly members qualified to vote may vote in
barrio council may fill the same. the plebiscite,” cannot sustain the position of petitioners in G.R. No.
“A plebiscite may be called to decide on the recall of any member of the L-36165 that only those who are 21 years of age and above and who
barrio council. A plebiscite shall be called to approve any budgetary, possess all other qualifications of a voter under Section 10 of R.A.
supplemental appropriations or special tax ordinances. No. 3590, can vote on the plebiscites referred to in Section 6;
“For taking action on any of the above enumerated measures, majority because paragraph 3 of Section 6 does not expressly limit the voting
vote of all the barrio assembly members registered in the list of barrio to those with the qualifications under Section 10 as said Section 6
secretary is necessary. does not distinguish between those who are 21 or above on the one
xx xx xx xx xx hand and those 18 or above but below 21 on the other, and whether
“Sec. 10. Qualifications of voters and candidates. — Every citizen of the literate or not, to constitute a quorum of the barrio assembly.
Philippines, twenty-one years of age or over, able to read and write, who has Consequently, on questions submitted for plebiscite, all the
been a resident of the barrio during the six months immediately preceding registered members of the barrio assembly can vote as long as
the election, duly registered in the list of voters kept by the barrio secretary,
who is not otherwise disqualified, may vote or be a candidate in the barrio 257
elections.
“The following persons shall not be qualified to vote: VOL. 50, MARCH 31, 1973 257
“a. Any person who has been sentenced by final judgment to
suffer one year or more of imprisonment, within two years
256 they are 18 years of age or above; and that only those who are 21
years of age or over and can read and write, can vote in the elections
256 SUPREME COURT REPORTS ANNOTATED of barrio officials.
Javellana vs. The Executive Secretary Otherwise there was no sense in extending membership in the
barrio assembly to those who are at least 18 years of age, whether
after service of his sentence; literate or not. Republic Act No. 3590 could simply have restated
“b. Any person who has violated his allegiance to the Republic of Section 4 of Republic Act No. 2370, the old Barrio Charter, which
the Philippines; and provided that only those who are 21 and above can be members of
“c. Insane or feeble-minded persons.” the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-
All these barrio assembly members, who are at least 18 years of 36165 and two of the petitioners in L-36164 participated in the
age, although illiterate, may vote at the plebiscite on the recall of enactment of Republic Act No. 3590 and should have known the
any member of the barrio council or on a budgetary, supplemental intendment of Congress in expanding the membership of the barrio
appropriation, or special ordinances, a valid action on which assembly to include all those 18 years of age and above, whether
requires “a majority vote of all of the barrio assembly members literate or not.
registered in the list of the barrio secretary” (par. 5, Sec. 6, R.A. No. If Congress in the exercise of its ordinary legislative power, not
3590). Such plebiscite may be authorized by a majority vote of the as a constituent assembly, can include 18-year olds as qualified
members present in the barrio assembly, there being a quorum (par. electors for barrio plebiscites, this prerogative can also be exercised
1, Sec. 6). by the Chief Executive as delegate of the Constitutional Convention
However, in the case of election of barrio officials, only Filipino in regard to the plebiscite on the 1973 Constitution.
citizens, who are at least 21 years of age, able to read and write, As heretofore stated, the statement by the President in
residents of the barrio during the 6 months immediately preceding Presidential Proclamation No. 1102 that the 1973 Constitution was
the election and duly registered in the list of voters kept by the overwhelmingly ratified by the people through the Citizens’
barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. Assemblies in a referendum conducted from January 10 to 15, 1973,
No. 3590). should be accorded the presumption of correctness; because the
Paragraph 2 of Section 6 likewise authorizes open voting as it same was based on the certification by the Secretary of the
provides that “voting procedures may be made x x x either in writing Department of Local Government and Community Development
as in regular elections, and/or declaration by the voters to the board who tabulated the results of the referendum all over the country. The
of election tellers.” accuracy of such tabulation and certification by the said Department
203/326 204
Secretary should likewise be presumed; because it was done in the 259

regular performance of his official functions aside from the fact that
the act of the Department Secretary, as an alter ego of the President,
VOL. 50, MARCH 31, 1973 259
is presumptively the act of the President himself unless the latter
disapproves or reprobates the same (Villena vs. Secretary of Interior, Javellana vs. The Executive Secretary
67 Phil. 451). The truth of the certification by the Department
Secretary and the Chief 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-
A of respondents’ Compliance (the certification by the Department
258
of Local Government and Community Development), while the
alleged certification of Governor Lino Bocalan of Cavite shows only
258 SUPREME COURT REPORTS ANNOTATED 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by
Javellana vs. The Executive Secretary way of extrapolation to the other provinces, cities and towns of the
country, the result would still be an overwhelming vote in favor of
the 1973 Constitution.
Executive on the results of the referendum, is further strengthened The alleged certification by Governor Lino Bocalan of Cavite, is
by the affidavits and certifications of Governor Isidro Rodriguez of not true; because in his duly acknowledged certification dated March
Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor 16, 1973, he states that since the declaration of martial law and up to
Eduardo T. Parades of Quezon City. the present time, he has been under house arrest in his residence in
The procedure for the ratification of the 1937 amendment on Urdaneta Village, Makati, Rizal; that he never participated in the
woman suffrage, the 1939 amendment to the ordinance appended to conduct of the Citizens’ Assemblies on January 10 15, 1973 in the
the 1935 Constitution, the 1940 amendments establishing the province of Cavite; that the acting chairman and coordinator of the
bicameral Congress, creating the Commission on Elections and Citizens’ Assemblies at that time was Vice-Governor Dominador
providing for two consecutive terms for the President, and the 1947 Camerino; and that he was shown a letter for his signature during the
parity amendment, cannot be invoked; because those amendments conduct of the Citizens’ Assemblies, which he did not sign but
were proposed by the National Assembly as expressly authorized by which he referred to Vice-Governor Camerino (Annex 1-Rejoinder
Article V of the 1935 Constitution respecting woman suffrage and as of the Sol. Gen. dated March 20, 1973).
a constituent assembly in all the other amendments aforementioned Mayor Pablo Cuneta likewise executed an affidavit dated March
and therefore as such, Congress had also the authority to prescribe 16, 1973 stating that on January 15, 1973, he caused the preparation
the procedure for the submission of the proposed amendments to the of a letter addressed to Secretary Jose Roño of the Department of
1935 Constitution. Local Government and Community Development showing the
In the cases at bar, the 1973 Constitution was proposed by an results of the referendum in Pasay City; that on the same day, there
independent Constitutional Convention, which as heretofore were still in any Citizens’ Assemblies holding referendum in Pasay
discussed, has the equal power to prescribe the modality for the City, for which reason he did not send the aforesaid letter pending
submission of the 1973 Constitution to the people for ratification or submittal of the other results from the said Citizens’ Assemblies;
delegate the same to the President of the Republic. and that in the afternoon of January 15, 1973, he indorsed the
The certification of Governor Isidro Rodriguez of Rizal and complete certificate of results on the referendum in Pasay City to the
Mayor Norberto Amoranto could be utilized as the basis for the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated
extrapolation of the Citizens’ Assemblies in all the other provinces, March 20, 1973).
cities and municipalities in all the other provinces, cities and Pablo F. Samonte, Assistant City Treasurer and Officer in Charge
municipalities, and the affirmative votes in the Citizens’ Assemblies of Pasay City also issued an affidavit dated March 15, 1973 stating
resulting from such extrapolation would still constitute a majority of that a certain Atty. Delia Sutton of the Salonga Law Office asked
the total votes cast in favor of the 1973 Constitution. him for the results of the referendum; that he
As claimed by petitioners in L-36165, against the certification of
the Department of Local Government and Community Development 260
that in Rizal there were 1,126,000 Yes votes and 100,310 No votes,
the certification of Governor Isidro Rodriguez of Rizal, shows only
614,157 Yes votes against 292,530 No votes. In Cavite province,
there were Javellana vs. The Executive Secretary
205/326 206
informed her that he had in his possession unsigned copies of such the said letter merely stated that it was only a “summary
results which may not be considered official as they had then no result”; and that after January 15, 1973, he sent to the National
knowledge whether the original thereof had been signed by the Secretariat all the certificates of results in 26 municipalities of Rizal
mayor; and that in spite of his advice that said unsigned copies were for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; italics
not official, she requested him if she could give her the unofficial supplied).
copies thereof, which he gave in good faith (Annex C-Rejoinder to Lydia M. Encarnacion, acting chief of the Records Section,
the Sol. Gen.). Department of Local Government and Community Development,
There were 118,010 Yes votes as against 5,588 No votes in the issued a certificate dated March 16, 1973 that she was shown xerox
Citizens’ Assemblies of Quezon city (Annex V to Petitioners’ Notes copies of unsigned letters allegedly coming from Governor Lino
in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of Bocalan dated January 15, 1973 and marked “Rejoinder Annex
alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Cavite” addressed to the President of the Philippines through the
Quezon City, states that “as far as we know, there has been no Secretary of the Department of Local Government and Community
Citizens’ Assembly meeting in our Area, particularly in January of Development and another unsigned letter reportedly from Mayor
this year,” does not necessarily mean that there was no such meeting Pablo Cuneta dated January 15, 1973 and marked “Rejoinder Annex
in said barrio; for she may not have been notified thereof and as a Pasay City” addressed to the Secretary of the Department of Local
result she was not able to attend said meeting. Much less can it be a Government and Community Development; that both xerox copies
basis for the claim that there was no meeting at all in the other of the unsigned letters contain figures showing the results of the
barrios of Quezon City. The barrio captain or the secretary of the referendum of the Citizens’ Assemblies in those areas; and that the
barrio assembly could have been a credible witness. said letters were not received by her office and that her records do
Councilor Eduardo T. Paredes, chairman of the Secretariat of not show any such documents received by her office (Annex 2-
Quezon City Ratification and Coordinating Council, certified on Rejoinder of the Sol. Gen.).
March 12, 1973 that as such chairman he was in charge of the Thus it would seem that petitioners in L-36165 have attempted to
compilation and tabulation of the results of the referendum among deceive this Court by representing said unsigned letters and/or
the Citizens’ Assemblies in Quezon City based on the results certificates as duly signed and/or containing the complete returns of
submitted to the Secretariat by the different Citizens’ Assemblies; the voting in the Citizens’ Assemblies.
but many results of the referendum were submitted direct to the The observation We made with respect to the discrepancy
national agencies having to do with such activity and all of which he between the number of Yes votes and No votes contained in the
has no knowledge, participation and control (Annex 4 Rejoinder of summary report of Governor Rodriguez of Rizal as well as those
the Sol. Gen.). contained in the alleged report of Governor Lino Bocalan of Cavite
Governor Isidro Rodriguez of Rizal issued a certification dated who repudiated the same as not having been signed by him for he
March 16, 1973 that he prepared a letter to the President dated was then under house arrest, on the one hand, and the number of
January 15, 1973 informing him of the results of the referendum in votes certified by the Department of Local Government and
Rizal, in compliance with the instruction of the National Secretariat Community Development, on the other, to the effect that even
to submit such letter 2 or 3 days from January 10 to show the trend assuming the correctness of the figures
of voting in the Citizens’ Assemblies; that the figures 614,157 and
262
292,530 mentioned in said letter were based on the certificates of
results in his possession as of January 14, 1973, which results were
made the 262 SUPREME COURT REPORTS ANNOTATED
VOL. 50, MARCH 31, 1973 261 insisted on by counsel for petitioners in L-36165, if they were
extrapolated and applied to the other provinces and cities of the
Javellana vs. The Executive Secretary country, the Yes votes would still be overwhelmingly greater than
the No votes, applies equally to the alleged discrepancy between the
basis of the computation of the percentage of voting trend in the figures contained in the certification of the Secretary of the
province; that his letter was never intended to show the final or Department of Local Government and Community Development
complete result in the referendum in the province as said referendum and the figures furnished to counsel for petitioners in L-36165
was then still going on from January 14-17, 1973, for which reason
207/326 208
concerning the referendum in Camarines Sur, Bataan and Negros discounting which would not tilt the scale in favor of the negative
Occidental. votes.
The fact that the referendum in the municipality of Pasacao, Similarly, the fact that Mayor Marcial F. Samson of Caloocan
Camarines Sur, shows that there were more votes in favor of the City, who belongs to the Liberal Party, stated in his letter dated
plebiscite to be held later than those against, only serve to March 13, 1973 that he does not “feel authorized by the proper
emphasize that there was freedom of voting among the members of authorities to confirm or deny the data” concerning the number of
the Citizens’ Assemblies all over the country during the referendum participants, the Yes votes and No votes in the referendum on the
from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder new Constitution among the members of the Citizens’ Assemblies in
of Petitioners in L-36165). If there was no such freedom of choice, Caloocan City, does not necessarily give rise to the inference that
those who wanted a plebiscite would not outnumber those against Mayor Samson of Caloocan City is being intimidated, having been
holding such plebiscite. recently released from detention; because in the same letter of
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 Mayor Samson, he suggested to counsel for petitioners in L-36165
confirms the “strong manifestation of approval of the new that he can secure “the true and legitimate results of the referendum”
Constitution by almost 97% by the members of the Citizens’ from the Office of the President (Annex Caloocan-B to Rejoinder of
Assemblies in Camarines Sur” (Annex-Camarines Sur to Rejoinder Petitioners in L-36165). Why did not learned and eminent counsel
of Petitioners in L-36165). heed such suggestion?
The report of Governor Efren B. Pascual of Bataan shows that Counsel for petitioners in L-36165, to sustain their position,
the members of the Citizens’ Assemblies voted overwhelmingly in relies heavily on the computation of the estimated turnover in the
favor of the new Constitution despite the fact that the second set of Citizens’ Assemblies referendum on January 10 to 15, 1973 by a
questions including the question “Do you approve of the new certain Professor Benjamin R. Salonga, of the Mapua Institute of
Constitution?” was received only on January 10. Provincial Technology, ostensibly a close relative of former Senator Jovito R.
Governor Pascual stated that “orderly conduct and favorable results Salonga, eminent counsel for petitioners in L-36165 (Annex M-as
of the referendum” were due not only to the coordinated efforts and amended, to Consolidated Rejoinder of petitioners in L-36165 to the
cooperation of all teachers and government employees in the area Notes of Arguments and Memorandum of respondents). Professor
but also to the enthusiastic participation by the people, showing Salonga is not a qualified statistician, which all the more impairs his
“their preference and readiness to accept this new method of
264
government to people consultation in shaping up government
policies.” (Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying 264 SUPREME COURT REPORTS ANNOTATED
VOL. 50, MARCH 31, 1973 263 credibility. Director Tito A. Mijares of the Bureau of Census and
Statistics, in his letter dated March 16, 1973 address to the Secretary
Javellana vs. The Executive Secretary of the Department of Local Government and Community
Development, refutes the said computation of Professor Benjamin R.
the new Constitution are registered in the book of voters; it is Salonga, thus:
enough that they are electors voting on the new Constitution (Bott
vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). “1) I do not quite understand why (Problem 1) all qualified registered
The fact that the number of actual voters in the referendum in certain voters and the 15-20-year-old youths (1972) will have to be estimated in
localities may exceed the number of voters actually registered for order to give a 101.9% estimate of the percentage participation of the ‘15-20
the 1971 elections, can only mean that the excess represents the year old plus total number of qualified voters’ which does not deem to
qualified voters who are not yet registered including those who are answer the problem. This computation apparently fails to account for some
at least 15 years of age and the illiterates. Although ex-convicts may 5.6 million persons ‘21 years old and over’ who were not registered voters
have voted also in the referendum, some of them might have been (COMELEC), but who might be qualified to participate at the Citizen’s
granted absolute pardon or were sentenced to less than one year Assembly.
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election “2) The official population projection of this office (medium assumption)
Code). At any rate, the ex-convicts constitute a negligible number, for ‘15 year olds and over’ as of January 1, 1973 is 22.506 million. If total
number of participants at the Citizens’ Assembly Referendum held on
209/326 210
January 10-15, 1973 was 16.702 million, participation rate will therefore be 1,436,118 (Osmeña, Jr. vs. Marcos, Presidential Election Contest
the ratio of the latter figure to the former which gives 74.2%. No. 3, Jan. 8, 1973).
“3) I cannot also understand c-2 ‘Solution to Problem 11.’ The The petitioners in all the cases at bar cannot state with
‘difference or implied number of 15-20 year olds’ of 5,039,906 would justification that those who voted for the incumbent President in
represent really not only all 15-year olds and over who participated at the 1969 did not vote in favor of the 1973 Constitution during the
Citizens’ Assembly but might not have been registered voters at the time, referendum from January 10 to 15, 1973. It should also be stressed
assuming that all the 11,661,909 registered voted at Citizens’ Assembly. that many of the partisans of the President in the 1969 Presidential
Hence, the ‘estimate percentage participation of 15-20 years olds’ of elections, have several members in their families and relatives who
105.6% does not seem to provide any meaningful information. are qualified to participate in the referendum because they are 15
“To obtain the participation rate of ‘15-20 years old’ one must divide the years or above including illiterates, which fact should necessarily
number in this age group, which was estimated to be 4.721 million as of augment the number of votes who voted for the 1973 Constitution.
January 1, 1973 by the population of ‘15 years old and over’ for the same (6) It is also urged that martial law being the rule of force, is
period which was estimated to be 22.506 million, giving 21.0%.
“In Problem III, it should be observed that registered voters also include 266
names of voters who are already dead. It cannot therefore be assumed that
all of them participated at the Citizens’ Assembly. It can therefore be 266 SUPREME COURT REPORTS ANNOTATED
inferred that ‘a total number of persons 15 and over unqualified/disqualified
to vote’ will be more than 10,548,197 and hence the ‘difference or implied
number of registered voters that participated’ will be less than 6,153,618.
necessarily inconsistent with freedom of choice, because the people
265 fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views
VOL. 50, MARCH 31, 1973 265 opposite to or critical of the position of the President on the 1973
Javellana vs. The Executive Secretary Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during
martial law which inevitably generates fear in the individual. Even
“I have reservations on whether an ‘appropriate number of qualified without martial law, the penal, civil or administrative sanction
voters that supposedly voted’ could be meaningfully estimated. provided for the violation of ordinarily engenders fear in the
“5) The last remark will therefore make the ratio (a) [Solution to individual which persuades the individual to comply with or obey
Problem] more than 1.71 and that for (b), accordingly, will also be less than the law. But before martial law was proclaimed, many individuals
36.8%.” (Annex F Rejoinder). fear such sanctions of the law because of lack of effective equal
enforcement or implementation thereof — in brief,
From the foregoing analysis of the Director of Census and compartmentalized justice and extraneous pressures and influences
Statistics as of January 21, 1973, the official population projection frustrated the firm and just enforcement of the laws. The fear that is
for 15-year olds and over is 22,506,000. If 16,702,000 voted in the generated by martial law is merely the fear of immediate execution
referendum, the participation ratio would be 74.2% of 22,506,000. and swift enforcement of the law and therefore immediate infliction
If the registered electors as of the election of November 8, 1971 of the punishment or sanction prescribed by the law whenever it is
numbered 11,661,909, the difference between 16,702,000 who transgressed during the period of martial law. This is not the fear that
participated in the referendum and the registered electors of affects the voters’ freedom of choice or freedom to vote for or
11,661,909 for the November 8, 1971 elections, is 5,040,091, which against the 1973 Constitution. Those who cringe in fear are the
may include not only the 15-year olds and above but below 21 but criminals or the law violators. Surely, petitioners do not come under
also the qualified electors who were not registered before the such category.
November 8, 1971 elections as well as illiterates who are 15 years (7) Petitioners likewise claim that open voting by viva voce or
old and above but below 21. raising of hands violates the secrecy of the ballot as by the election
Moreover, in the last Presidential election in November, 1969, laws. But the 1935 Constitution does not require secret voting. We
We found that the incumbent President obtained over 5,000,000 search in vain for such guarantee or prescription in said organic law.
votes as against about 3,000,000 votes for his rival LP Senator The Commission on Elections under the 1940 Amendment,
Sergio Osmeña, Jr., garnering a majority of from about 896,498 to embodied as Article X is merely mandated to insure “free, orderly
and honest election.” Congress, under its plenary law-making
211/326 212
authority, could have validly prescribed in the election law open 268
voting in the election of public officers, without trenching upon the
Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was
demanded by partisan strife in elections for elective officials. Javellana vs. The Executive Secretary
Partisanship based on party or personal loyalties
Constitutional Convention convened in June, 1971, specific reforms
267
advanced by the delegates were discussed both in committee
hearings as well as in the tri-media — the press, radio and television.
VOL. 50, MARCH 31, 1973 267 Printed materials on the proposed reforms were circulated by their
proponents. From June, 1971 to November 29, 1972, reforms were
openly discussed and debated except for a few days after the
proclamation of martial law on September 21, 1972. From the time
does not generally obtain in a plebiscite on proposed constitutional the Constitutional Convention reconvened in October, 1972 until
amendments or on a new Constitution. We have seen even before January 7, 1973, the provisions of the new Constitution were
and during martial law that voting in meetings of government debated and discussed in forums sponsored by private organizations
agencies or private organizations is usually done openly. This is universities and debated over the radio and on television. The
specially true in sessions of Congress, provincial boards, city Philippines is a literate country, second only to Japan in the Far East,
councils, municipal boards and barrio councils when voting on and more literate perhaps than many of mid-western and southern
national or local issues, not on personalities. states of the American Union and Spain. Many residents in about
Then again, open voting was not a universal phenomenon in the 1,500 towns and 33,000 barrios of the country have radios. Even the
Citizens’ Assemblies. It might have been true in certain areas, but illiterates listened to radio broadcasts on and discussed the
that does not necessarily mean that it was done throughout the provisions of the 1973 Constitution.
country. As reported by the eminent and widely read columnist, Teodoro
The recent example of an open voting is the last election on Valencia in his column in Bulletin Today, March 4, 1973 issue,
March 3, 1973 of the National Press Club officers who were elected “Otto Lang, Hollywood producer director (Tora, Tora, Tora) went
by acclamation presided over by its former president, petitioner around the country doing a 30-minute documentary on the
Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, Philippines for American television stated that what impressed him
1973 issue). There can be no more hardboiled group of persons than most in his travel throughout the country was the general acceptance
newspapermen, who cannot say that voting among them by of the New Society by the people which he saw in his 6-week travel
acclamation was characterized by fear among the members of the from Aparri to Jolo.”
National Press Club. The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973
Moreover, petitioners would not be willing to affirm that all the and Daily Express, March 3, and Sunday Express, March 4),
members of the citizenry of this country are against the new Secretary of the United States Senate, who conducted a personal
Constitution. They will not deny that there are those who favor the survey of the country as delegate of Senator Mike Mansfield,
same, even among the 400,000 teachers among whom officers of the Chairman, Committee on US-Philippine relations, states:
Department of Education campaigned for the ratification of the new
Constitution. “Martial law has paved the way for a re-ordering of the basic social
Not one of the petitioners can say that the common man — structure of the Philippines. President Marcos has been prompt and sure-
farmer, laborer, fisherman, lowly employee, jeepney driver, taxi footed in using the power of presidential decree under martial law for this
driver, bus driver, pedestrian, salesman, or salesgirl — does not want purpose. He has zeroed in on areas which have been widely recognized as
the new Constitution, or the reforms provided for therein. prime sources of the nation’s
(8) Petitioners likewise claim that there was no sufficient
269
publicity given to the new Constitution. This is quite inaccurate;
because even before the election in November, 1970 of delegates to
the Constitutional Convention, the proposed reforms were already VOL. 50, MARCH 31, 1973 269
discussed in various forums and through the press as well as other Javellana vs. The Executive Secretary
media of information. Then after the
213/326 214
difficulties — land tenancy, official corruption, tax evasion and abuse of October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no
oligarchic economic power. Clearly, he knows the targets. What is not yet more martial law in the Philippines.
certain is how accurate have been his shots. Nevertheless, there is marked
public support for his leadership and tangible alternatives have not been
forthcoming. That would suggest that he may not be striking too far from the “x x x Consequently, in the promulgation and enforcement of Executive
mark. Order No. 68, the President of the Philippines has acted in conformity with
“The United States business community in Manila seems to have been the generally accepted principles and policies of international law which are
re-assured by recent developments xx. (Emphasis supplied.) part of our Constitution.
“The promulgation of said executive order is an exercise by the President
Petitioners cannot safely assume that all the peaceful citizens of of his powers as Commander in Chief of all our armed forces, as upheld by
the country, who constitute the majority of the population, do not this Court in the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664)
like the reforms stipulated in the new Constitution, as well as the when we said —
decrees, orders and circulars issued to implement the same. It should “ ‘War is not ended simply because hostilities have ceased. After
be recalled, as hereinbefore stated, that all these reforms were the cessation of armed hostilities, incidents of war may remain pending
subject of discussion both in the committee hearings and on the floor which should be disposed of as in time of war. ‘An important incident
of the Constitutional Convention, as well as in public forums to a conduct of war is the adoption measures by the military
sponsored by concerned citizens or civic organizations at which command not only to repel and defeat the enemies but to seize and
Con-Con delegates as well as other knowledgeable personages subject to disciplinary measures those enemies who in their attempt
expounded their views thereon and in all the media of information to thwart or impede our military effort have violated the law of war.’
before the proclamation of martial law on September 21, 1972. This (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to
is the reason why the Constitutional Convention, after spending create a military commission for the trial and punishment of war
close to P30 million during the period from June 1, 1971 to criminals is an aspect of waging war. And, in the language of a
November 29, 1972, found it expedient to accelerate their writer, a military commission ‘has jurisdiction so long as the
proceedings in November, 1972 because all views that could technical state of war continues. This includes the period of an
possibly be said on the proposed provisions of the 1973 Constitution armistice, or military occupation, up to the effective date of treaty of
were already expressed and circulated. The 1973 Constitution may peace, and may extend beyond, by treaty agreement.’ (Cowles, Trial
contain some unwise provisions. But this objection to such unwise of War Criminals by Military Tribunals, American Bar Association
or vague provisions, as heretofore stated, refers to the wisdom of the Journal, June, 1944).’
aforesaid provisions, which issue is not for this Court to decide; “Consequently, the President as Commander-in-Chief is fully empowered
otherwise We will be substituting Our judgment for the judgment of to consummate this unfinished aspect of war, namely the trial and
the Constitutional Convention and in effect acting as a constituent punishment of war criminals, through the issuance and enforcement of
assembly. Executive Order No. 68.” (83 Phil. 177-178; italics supplied).
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES Chief Justice Stone of the United States Supreme Court likewise
LEGISLATIVE POWERS DURING MARTIAL LAW. appears to subscribe to this view, when, in his
The position of the respondent public officers that under 271
270
VOL. 50, MARCH 31, 1973 271
270 SUPREME COURT REPORTS ANNOTATED Javellana vs. The Executive Secretary
concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304
martial law, the President as Commander-in-Chief is vested with [1946]), he defined martial law as “the exercise of the power which
legislative powers, is sustained by the ruling in the 1949 case resides in the executive branch of the government to preserve order
of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178) which and insure the public safety in times of emergency, when other
reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571- branches of the government are unable to function, or their
72). The trial of General Kuroda was after the surrender of Japan on functioning would itself threaten the public safety.” (Italics
supplied). There is an implied recognition in the aforesaid definition
215/326 216
of martial law that even in places where the courts can function, that can be made without fear of contradiction. But this is true of all
such operation of the courts may be affected by martial law should institutions of government, and the principle of constitutional dictatorship
their “functioning x x x threaten the public safety.” It is possible that remains eternally valid no matter how often and seriously it may have been
the courts, in asserting their authority to pass upon questions which violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L.
may adversely affect the conduct of the punitive campaign against Rossiter, p. 7; italics supplied.)
rebels, secessionists, dissidents as well as subversives, martial law
may restrict such judicial function until the danger to the security of Finally, Rossiter expressly recognizes that during martial law, the
the state and of the people shall have been decimated. Chief Executive exercises legislative power, whether of temporary
The foregoing view appears to be shared by Rossiter when he or permanent character, thus:
stated: “The measures adopted in the prosecution of a constitutional
“Finally, this strong government, which in some instances might become dictatorship should never be permanent in character or effect. Emergency
an outright dictatorship, can have no other purposes than the preservation powers are strictly conditioned by their purpose and this purpose is the
of the independence of the state, the maintenance of the existing restoration of normal conditions. The actions directed to this end should
constitutional order, and the defense of the political and social liberties of therefore be provisional. For example, measures of a legislative nature
the people. It is important to recognize the true and limited ends of any which work a lasting change in the structure of the state or constitute
practical application of the principle of constitutional dictatorship. Perhaps permanent derogations from existing law should not be adopted under an
the matter may be most clearly stated in this way: the government of a free emergency enabling act, at least not without the positively registered
state is proceeding on its way and meeting the usual problems of peace and approval of the legislature. Permanent laws, whether adopted in regular or
normal times within the limiting framework of its established constitutional irregular times, are for parliaments to enact. By this same token, the
order. The functions of government are parceled out among a number of decisions and sentences of extraordinary courts should be reviewed by the
mutually independent offices and institutions; the power to exercise those regular courts after the termination of the crisis.
functions is circumscribed by well-established laws, customs, and “But what if a radical act of permanent character, one working lasting
constitutional prescriptions; and the people for whom this government was changes in the political and social fabric, is indispensable to the successful
instituted are in possession of a lengthy catalogue of economic, political, prosecution of the particular constitutional dictatorship? The only answer
and social rights which their leaders recognize as inherent and inalienable. A can be: it must be resolutely taken and openly acknowledged. President
severe crisis arises — the country is invaded by a hostile power, or a Lincoln found it necessary to proceed to the revolutionary step of
dissident segment of the citizenry revolts, or the impact of a world-wide emancipation in aid of his conservative purpose of preserving the Union; as
depression threatens to bring the nation’s economy in ruins. The government a constitutional
meets the crisis by assuming more powers and respecting fewer rights. The 273
result is a regime which can act
272 VOL. 50, MARCH 31, 1973 273

Javellana vs. The Executive Secretary dictator he had a moral right to take this radical action. Nevertheless, it is
imperative that any action with such lasting effects should eventually
arbitrarily and even dictatorially in the swift adoption of measures designed receive the positive approval of the people or of their representatives in the
to save the state and its people from the destructive effects of the particular legislature. (p. 303, italics supplied).
crisis. And the narrow duty to be pursued by this strong government, this
From the foregoing citations, under martial law occasioned by
constitutional dictatorship? Simply this and nothing more: to end the crisis
severe crisis generated by revolution, insurrection or economic
and restore normal times. The government assumes no power and abridges
depression or dislocation, the government exercises more powers
no right unless plainly indispensable to that end; it extends no further in
and respects fewer rights in order “to end the crisis and restore
time than the attainment of that end; and it makes no alteration in the
normal times.” The government can assume additional powers
political, social and economic structure of the nation which cannot be
indispensable to the attainment of that end — the complete
eradicated with the restoration of normal times. In short, the aim of
restoration of peace. In our particular case, eradication of the causes
constitutional dictatorship is the complete restoration of the status quo ante
that incited rebellion and subversion as secession, is the sine qua
bellum. This historical fact does not comport with philosophical theory, that
non to the complete restoration of normalcy. Exercise of legislative
there never has been a perfect constitutional dictatorship, is an assertion
217/326 218
power by the President as Commander in Chief, upon his Justice Holmes, the meaning of the words of the Constitution is not to be
proclamation of martial law, is justified because, as he professes, it is determined by merely opening a dictionary. Its terms must be construed in
directed towards the institution of radical reforms essential to the the context of the realities in the life of a nation it is intended to serve.
elimination of the causes of rebellious, insurgent or subversive Because experience may teach one generation to doubt the validity and
conspiracies and the consequent dismantling of the rebellious, efficacy of the concepts embodied in the existing Constitution and persuade
insurgent or subversive apparatus. another generation to abandon them entirely, heed should be paid to the wise
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as counsel of some learned jurists that in the resolution of constitutional
well as Proclamation No. 1102 is indispensable to the effectuation of questions — like those posed before Us — the blending of idealism and
the reforms within the shortest possible time to hasten the restoration practical wisdom or progressive legal realism should be applied (see
of normalcy. Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed.,
pp. 19-21). To Justice Frankfurter, law is “a vital agency for human
“Must the government be too strong for the liberties of the people; or betterment” and constitutional law “is applied politics using the word in its
must it be too weak to maintain its existence?” That was the dilemma that noble sense.” (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; italics
vexed President Lincoln during the American Civil War, when without supplied). Justice Brandeis
express authority in the Constitution and the laws of the United States, he
suspended one basic human freedom — the privilege of the writ of habeas 275
corpus — in order to preserve with permanence the American Union, the
Federal Constitution of the United States and all the civil liberties of the VOL. 50, MARCH 31, 1973 275
American people. This is the same dilemma that presently confronts the
Chief Executive of the Republic of the Philippines, who, more than the
Courts and Congress, must, by express constitutional mandate, secure the
gave utterance to the truth that “Our Constitution is not a straight jacket. It
safety of our Republic and the rights as well as lives of the
is a living organism. As such, it is capable of growth — or expansion and
274 adaptation to new conditions. Growth implies changes, political, economic
and social.” (Brandeis Papers, Harvard Law School; emphasis supplied).
Harvard Professor Thomas Reed Powell emphasizes “practical wisdom,” for
“the logic of constitutional law is the common sense of the Supreme Court.”
Javellana vs. The Executive Secretary (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2
Southern Law Quarterly, pp. 112, 138-139, cited in Bickel’s Opus, supra;
people against open rebellion, insidious subversion secession. The Chief italics supplied).
Executive announced repeatedly that in choosing to proclaim martial law,
the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. The eternal paradox in this finite world of mortal and fallible men
VII, 1935 Constitution) to insure our national and individual survival in is that nothing is permanent except change. Living organisms as well
peace and freedom, he is in effect waging a peaceful, democratic revolution as man-made institutions are not immutable. Civilized men organize
from the center against the violent revolution and subversion being mounted themselves into a State only for the purpose of serving their supreme
by the economic oligarchs of the extreme right, who resist reforms to interest — their welfare. To achieve such end, they created an
maintain their economic hegemony, and the communist rebels a Maoist agency known as the government. From the savage era thru ancient
oriented secessionists of the extreme left who demand swift institution of times, the Middle Ages, the Dark Ages and the Renaissance to this
reforms. In the exercise of his constitutional and statutory powers, to save era of sophisticated electronics and nuclear weaponry, states and
the state and to protect the citizenry against actual and threatened assaults governments have mutated in their search for the magic instrument
from insurgents, secessionists and subversives, doctrinaire concepts and for their well-being. It was trial and error then as it is still now.
principles, no matter how revered they may be by jurisprudence and time, Political philosophies and constitutional concepts, forms and kinds
should not be regarded as peremptory commands; otherwise the dead hand of government, had been adopted, overturned, discarded, re-adopted
of the past will regulate and control the security and happiness of the living or modified to suit the needs of a given society at a particular given
present. A contrary view would be to deny the self-evident proposition that epoch. This is true of constitutions and laws because they are not
constitutions and laws are mere instruments for the well-being, peace, “the infallible instruments of a manifest destiny.” No matter how we
security and prosperity of the country and its citizenry. The law as a means want the law to be stable, it cannot stand still. As Mr. Justice Holmes
of social control is not static but dynamic. Paraphrasing Mr. Justice aptly observed, every “constitution is an experiment as all life is an
Frankfurter, the Constitution is neither a printed finality nor the experiment,” (Abrahms vs. U.S., 250 US 616, 631) for “the life of
imprisonment of the past, but the enfolding of the future. In the vein of Mr. the law is not logic, but experience.” In the pontifical tones of Mr.
219/326 220
Justice Benjamin Nathan Cardozo, “so long as society is inconstant, mind. As that becomes more developed, more enlightened, as new
there can be no constancy in law,” and “there will be change whether discoveries are made, new
we will it or not.” As Justice Jose P. Laurel was wont to say, “We
277
cannot, Canute-like, command the waves of progress to halt.”
Thus, political scientists and jurists no longer exalt with
vehemence a “government that governs least.” Adherents there are VOL. 50, MARCH 31, 1973 277
to the poetic dictum of Alexander Pope: “For forms
276
truths disclosed and manners and opinions change, with the change
276 SUPREME COURT REPORTS ANNOTATED of circumstances, institutions must also advance, and keep pace with
the times.” (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
Javellana vs. The Executive Secretary The wisdom of the decision of the Chief Executive can only be
judged in the perspective of history. It cannot be adequately and
of government let fools contest; whatever is best administered is fairly appraised within the present ambience, charged as it is with so
best.” (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the much tension and emotion, if not partisan passion. The analytical,
shades vary from direct democracy, representative democracy, objective historians will write the final verdict in the same way that
welfare states, socialist democracy, mitigated socialism, to outright they pronounced judgment on President Abraham Lincoln who
communism which degenerated in some countries into suspended the privilege of the writ of habeas corpus without any
totalitarianism or authoritarianism. constitutional or statutory authority therefor and of President
Hence, even the scholar, who advances academic opinions Franklin Delano Roosevelt who approved the proclamation of
unrelated to factual situations in the seclusion of his ivory tower, martial law in 1941 by the governor of Hawaii throughout the
must perforce submit to the inexorable law of change in his views, Hawaiian territory. President Lincoln not only emancipated the
concepts, methods and techniques when brought into the actual Negro slaves in America, but also saved the Federal Republic of the
arena of conflict as a public functionary — face to face with the United States from disintegration by his suspension of the privilege
practical problems of state, government and public administration. of the writ of habeas corpus, which power the American
And so it is that some learned jurists, in the resolution of Constitution and Congress did not then expressly vest in him. No
constitutional issues that immediately affect the lives, liberties and one can deny that the successful defense and preservation of the
fortunes of the citizens and the nation, recommend the blending of territorial integrity of the United States was due in part, if not to a
idealism with practical wisdom which legal thinkers prefer to great extent, to the proclamation of martial law over the territory of
identify as progressive legal realism. The national leader, who Hawaii — main bastion of the outer periphery or the outpost of the
wields the powers of government, must and has to innovate if he American defense perimeter in the Pacific — which protected the
must govern effectively to serve the supreme interests of the people. United States mainland not only from actual invasion but also from
This is especially true in times of great crises where the need for a aerial or naval bombardment by the enemy. Parenthetically, the
leader with vision, imagination, capacity for decision and impartial observer cannot accurately conclude that the American
courageous action is greater, to preserve the unity of people, to Supreme Court acted with courage in its decision in the cases of Ex
promote their well-being, and to insure the safety and stability of the parte Milligan and Duncan vs. Kahanamoku (filed on May 10, 1865
Republic. When the methods of rebellion and subversion have argued on March 5 to 13, 1866, decided on April 3, 1866, and
become covert, subtle and insidious, there should be a recognition of opinion delivered on December 17, 1866) after the lifting of the
the corresponding authority on the part of the Commander-in-Chief proclamation suspending the privilege of the writ of habeas corpus,
of the Armed Forces to utilize all the available techniques to long after the Civil War and the Second World ended respectively on
suppress the peril to the security of the government and the State. April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp.
Over a century and a half ago, Thomas Jefferson, one of the 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
founding fathers of the American Constitution and former President Britannica, 1969 ed., p. 799). Was the delay on the part of the
of the United States, who personifies the progressive liberal, spoke American Supreme Court in deciding these cases against the
the truth when he said that some men “ascribe men of the preceding position of the United States President — in suspending the
age a wisdom more than human, and suppose what they did to be privilege of the writ of habeas corpus in
beyond amendment. xx xx But I know also, that laws and
278
institutions must go hand in hand with the progress of the human
221/326 222
278 SUPREME COURT REPORTS ANNOTATED the constitutional fabric of our government, which, together with
Javellana vs. The Executive Secretary other basic constitutional precepts, conserves the unity of our
people, strengthens the structure of the government and assures the
continued stability of the country against the forces of division, if
one case and approving the proclamation of martial law in the other
not of anarchy.
— deliberate as an act of judicial statesmanship and recognition on
Moreover, if they have a quorum, the senators can meet
their part that an adverse court ruling during the period of such a
anywhere. Validity of the acts of the Senate does not depend on the
grave crisis might jeopardize the survival of the Federal Republic of
place of session; for the Constitution does not designate the place of
the United States in its life-and-death struggle against an organized
such a meeting. Section 9 of Article VI imposes upon Congress to
and well armed rebellion within its own borders and against a
convene in regular session every year on the 4th Monday of January,
formidable enemy from without its territorial confines during the last
unless a different date is fixed by law, or on special session called by
global armageddon?
the President. As former Senator Arturo Tolentino, counsel for
VIII
respondents Puyat and Roy in L-36165, stated, the duty to convene
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
is addressed to all members of Congress, not merely to its presiding
MANDAMUS AGAINST SENATORS.
officers. The fact that the doors of Congress are padlocked, will not
In G.R. No. L-36165, mandamus will not lie to compel
prevent the senators — especially the petitioners in L-36165 — if
respondents Gil Puyat and Jose Roy to convene the Senate of the
they are minded to do so, from meeting elsewhere — at the Sunken
Philippines even on the assumption that the 1935 Constitution still
Gardens, at the Luneta Independence Grandstand, in any of the big
subsists; because pursuant to the doctrine of separation of powers
hotels or theaters, in their own houses, or at the Araneta Coliseum,
under the 1935 Constitution, the processes of this Court cannot
which is owned by the father-in-law of petitioner Gerardo Roxas in
legally reach a coordinate branch of the government or its head. This
L-36165.
is a problem that is addressed to the Senate itself for resolution; for
However, a session by the Senate alone would be purely an
it is purely an internal problem of the Senate. If a majority of the
exercise in futility, for it cannot validly meet without the lower
senators can convene, they can elect a new Senate President and a
House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition
new Senate President Pro Tempore. But if they have no quorum,
by five former senators for mandamus in L-36165 is useless.
those present can order the arrest of the absent members (Sec. 10[2],
And as pointed out by former Senator Arturo Tolentino, counsel
Art. VI, 1935 Constitution). If this fails, then there is no remedy
for respondents Puyat and Roy, mandamus will lie only if there is a
except an appeal to the people. The dictum ubi jus, ubi remedium, is
law imposing on the respondents the duty to convene the body. The
not absolute and certainly does not justify the invocation of the
rule imposing such a duty invoked by petitioners in L-36165 is
power of this Court to compel action on the part of a co-equal body
purely an internal rule of the Senate; it is not a law because it is not
or its leadership. This was emphasized with sufficient clarity by this
enacted by both Houses and approved by the President.
Court in the 1949 case of Avelino vs. Cuenco (83 Phil. 17, 22, 24),
with which the distinguished counsels for the petitioners in L-36164 280
and L-36165 are familiar. We stress that the doctrine of separation of
powers and the political nature of the controversy such as this,
preclude the interposition of the Judiciary to nullify an act of a
coordinate body or to command performance by the head of such a Javellana vs. The Executive Secretary
co-ordinate body of his functions.
Mystifying is the posture taken by counsels for petitioners
The Constitutional provision on the convening of Congress, is
279
addressed to the individual members of the legislative body (Sec. 9,
Art. VI of 1935 Constitution).
VOL. 50, MARCH 31, 1973 279 IX
Javellana vs. The Executive Secretary TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
in referring to the political question doctrine — almost in mockery
The petitioners in L-36164 and L-36236 specifically pray for a
— as a magic formula which should be disregarded by this Court,
declaration that the alleged ratification of the 1973 Constitution is
forgetting that this magic formula constitutes an essential skein in
223/326 224
null and void and that the said 1973 Constitution be declared himself certain rights which constitute limitations on the powers of
unenforceable and inoperative. government. But when there is an inevitable clash between an
As heretofore stated, Proclamation No. 1102 is an enactment of exertion of governmental authority and the assertion of individual
the President as Commander-in-Chief during martial law as directly freedom, the exercise of which freedom imperils the State and the
delegated to him by Section 10(2) of Article VII of the 1935 civilized society to which the individual belongs, there can be no
Constitution. alternative but to submit to the superior right of the government to
A declaration that the 1973 Constitution is unenforceable and defend and preserve the State. In the language of Mr. Justice Holmes
inoperative is practically deciding that the same is unconstitutional. — often invoked by herein petitioners — “when it comes to a
The proposed Constitution is an act of the Constitutional decision involving its (state life, the ordinary rights of individuals
Convention, which is co-equal and coordinate with as well as must yield to what he (the President) deems the necessities of the
independent of either Congress or the Chief Executive. Hence, its moment. Public danger warrants the substitution of executive
final act, the 1973 Constitution, must have the same category at the process for judicial process. (See Keely vs. Sanders, 99 U.S. 441,
very least as the act of Congress itself. 446, 25 L ed. 327, 328). This was admitted with regard to killing
Consequently, the required vote to nullify Proclamation No. 1102 men in the actual clash of arms. And we think it is obvious, although
and the 1973 Constitution should be eight (8) under Section 10 of it was disputed, that the same is true of temporary detention to
Article VIII of the 1935 Constitution in relation to Section 9 of the prevent apprehended harm.” (Moyer vs. Peabody, 212 U.S. 77, 85,
Judiciary Act or Republic Act No. 296, as amended, or should be ten 53 L ed., 411, 417).
(10) under Section 2(2) of Article X of the 1973 Constitution. The rhetoric of freedom alone is not enough. It must be the
Should the required vote of eight (8) or ten (10), as the case may be,
282
for the declaration of invalidity or unconstitutionality be not
achieved, the 1973 Constitution must be deemed to be valid, in force
and operative. 282 SUPREME COURT REPORTS ANNOTATED
VOL. 50, MARCH 31, 1973 281 rhetoric of freedom with order and security for all, that should be the
shibboleth; for freedom cannot be enjoyed in an environment of
Javellana vs. The Executive Secretary disorder and anarchy.
The incumbent Chief Executive who was trying to gain the
support for his reform program long before September 21, 1972,
X realized almost too late that he was being deceived by his
ARTICLE OF FAITH partymates as well as by the opposition, who promised him
WE yield to no man as devotees of human rights and civil cooperation, which promises were either offered as a bargaining
liberties. Like Thomas Jefferson, We swear “eternal hostility leverage to secure concessions from him or to delay the institution
towards any form of tyranny over the mind of man” as well as of the needed reforms. The people have been victimized by such
towards bigotry and intolerance, which are anathema to a free spirit. bargaining and dilly-dallying. To avert a terrifying blood bath and
But human rights and civil liberties under a democratic or republican the breakdown of the Republic, the incumbent President proclaimed
state are never absolute and never immune to restrictions essential to martial law to save the Republic from being overrun by communists,
the common weal. A civilized society cannot long endure without secessionists and rebels by effecting the desired reforms in order to
peace and order, the maintenance of which is the primary function of eradicate the evils that plague our society, which evils have been
the government. Neither can civilized society survive without the employed by the communists, the rebels and secessionists to exhort
natural right to defend itself against all dangers that may destroy its the citizenry to rise against the government. By eliminating the evils,
life, whether in the form of invasion from without or rebellion and the enemies of the Republic will be decimated. How many of the
subversion from within. This is the first law of nature and ranks petitioners and their counsels have been utilizing the rebels,
second to none in the hierarchy of all values, whether human or secessionists and communists for their own personal or political
governmental. Every citizen, who prides himself in being a member purposes and how many of them are being used in turn by the
or a civilized society under an established government, impliedly aforesaid enemies of the State for their own purposes?
submits to certain constraints on his freedom for the general welfare If the petitioners are sincere in their expression of concern for the
and the preservation of the State itself, even as he reserves to greater mass of the populace, more than for their own selves, they
225/326 226
should be willing to give the incumbent Chief Executive a chance to and objectionable and the people were not sufficiently informed
implement the desired reforms. The incumbent President assured the about them.
nation that he will govern within the framework of the Constitution 3. The President had no authority to create and empower the
and if at any time, before normalcy is restored, the people thru their Citizens’ Assemblies to ratify the new Constitution at the
Citizens’ Assemblies, cease to believe in his leadership, he will step
284
down voluntarily from the Presidency. But if, as apprehended by the
petitioners, he abuses and brutalizes the people, then to the
battlements we must go to man the ramparts against tyranny. This, it 284 SUPREME COURT REPORTS ANNOTATED
is believed, he knows only too well; because he is aware that he who
rides the tiger will eventually end inside the tiger’s stomach. He who
toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants referendum conducted in connection therewith, as said assemblies
and were burned at stake or were merely for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution
283 prescribing the manner of amending the same were not duly
observed.
VOL. 50, MARCH 31, 1973 283 The petitions were not given due course immediately but were
referred to the Solicitor General as counsel for the respondents for
Javellana vs. The Executive Secretary comment, with three members of the Court, including the
undersigned, voting to dismiss them outright. The comments were
beheaded or hanged or guillotined by the very people whom they at considered motions to dismiss which were set for hearing and
first championed and later deceived. The most bloody of such mass extensively argued. Thereafter both parties submitted their notes and
executions by the wrath of a wronged people, was the decapitation memoranda on their oral arguments.
by guillotine of about 15,000 Frenchmen including the leaders of the I.
French revolution, like Robespierre, Danton, Desmoulins and Marat. The issues raised for determination, on which the resolution of
He is fully cognizant of the lessons of history. the Motion to Dismiss hinges, are as follows:
HENCE, THE DISMISSAL OF THESE FIVE CASES IS 1. Is the question presented political and, hence, beyond the
JUSTIFIED. competence of this Court to decide, or is it justiciable and fit for
judicial determination?
ESGUERRA, J.: For Dismissal of Petitions 2. Was the new Constitution of November 30, 1972, ratified in
These petitions seek to stop and prohibit the respondents accordance with the amending process prescribed by Article XV of
Executive Officers from implementing the Constitution signed on the 1935 Constitution?
November 30, 1972; in L-36165, to compel respondents Gil Puyat 3. Has the new Constitution been accepted and acquiesced in by
and Jose J. Roy, President and President Pro-Tempore, respectively, the Filipino people?
of the Senate under the 1935 Constitution, to convene the Senate in 4. Is the new Constitution actually in force and effect?
regular session which should have started on January 22, 1973; to 5. If the answers to questions Nos. 3 and 4 be in the affirmative,
nullify Proclamation No. 1102 of the President, issued on January are petitioners entitled to the reliefs prayed for?
17, 1973, which declared the ratification of the Constitution on II.
November 30, 1972, by the Filipino people, through the barangays The pivotal question in these cases is whether the issue raised is
or Citizens Assemblies established under Presidential Decree No. 86 highly political and, therefore, not justiciable. I maintain that this
issued on December 31, 1972, which were empowered under Court should abstain from assuming jurisdiction, but, instead, as an
Presidential Decree No. 86-A, issued on January 5, 1973, to act in act of judicial statesmanship,
connection with the ratification of said Constitution.
285
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for
the making of a Constitution after the declaration of Martial Law on VOL. 50, MARCH 31, 1973 285
September 21, 1972.
2. The Convention was not empowered to incorporate certain
provisions in the 1972 Constitution because they are highly unwise
227/326 228
should dismiss the petitions. In resolving whether or not the question Martial Law? That the new Constitution has taken deep root and the
presented is political, joint discussion of issues Nos. 1, 3 and 4 is people are happy and contended with it is a living reality which the
necessary so as to arrive at a logical conclusion. For after the most articulate critics of the new order cannot deny. 95 out of 108
acceptance of a new Constitution and acquiescence therein by the members of the House of Representatives have opted to serve in the
people by putting it into practical operation, any question regarding interim National Assembly provided for under the new Constitution.
its validity should be foreclosed and all debates on whether it was 15 out of 24 Senators have done likewise. The members of the
duly or lawfully ushered into existence as the organic law of the Congress did not meet anymore last January 22, 1973, not because
state become political and not judicial in character. they were really prevented from so doing but because of no serious
The undisputed facts that led to the issuance of Proclamation No. effort on their parts to assert their offices under the 1935
1102 and Presidential Decrees Nos. 86 and 86-A are fully set forth Constitution. In brief, the Legislative Department under the 1935
in the majority and dissenting opinions in the Plebiscite cases Constitution is a thing of the past. The Executive Department has
decided on January 22, 1973, and need not be repeated here. been fully reorganized; the appointments of key executive officers
Petitioners seek to set at naught Proclamation No. 1102 and including those of the Armed Forces were extended and they took an
Presidential Decrees Nos. 86 and 86-A, claiming that the ratification oath to support and defend the new Constitution. The courts, except
of the new Constitution pursuant to the said decrees is invalid and of the Supreme Court by reason of these cases, have administered
no effect. Presidential Decree No. 86 organized the barangays or justice under the new constitution. All government offices have dealt
Citizens Assemblies composed of all citizens at least fifteen years of with the public and performed their functions according to the new
age, and through these assemblies the proposed 1972 Constitution Constitution and laws promulgated thereunder.
was submitted to the people for ratification. Proclamation No. 1102 If the real purpose of the petitions is to set aside the new
of the President announced or declared the result of the referendum Constitution, how can this Court justify its assumption of
or plebiscite conducted through the Citizens Assemblies, and that jurisdiction when no power has x x x conferred upon it the
14,976,561 members thereof voted for the ratification of the new jurisdiction to declare the Constitution or any part thereof null and
Constitution and 743,869 voted against it. Petitioners assail these void? It is the height of absurdity and impudence for a court to wage
two acts of the President as unauthorized and devoid of legal effect. open war against the organic act to which it owes its existence. The
But looking through the veneer of judicial conformity with which situation in which this Court finds itself does not permit it to pass
the petitions have been adroitly contrived, what is sought to be upon the question whether or not the new Constitution has entered
invalidated is the new Constitution itself — the very framework of into force and has superseded the 1935 Constitution. If it declares
the present Government since January 17, 1973. The reason is that the present Constitution has not been validly ratified, it has to
obvious. The Presidential decrees set up the means for the uphold the 1935 Constitution as still the prevailing organic law. The
ratification and acceptance of the new Constitution and Proclamation result would be too anomalous to describe, for then this Court would
No. 1102 simply announced the result of the referendum or
287
plebiscite by the people through the Citizens Assemblies. The
Government under the new Constitution has been running on its
tracks normally and apparently without obstruction in the form of VOL. 50, MARCH 31, 1973 287
organized
286
have to declare that it is governed by one Constitution or the 1935
286 SUPREME COURT REPORTS ANNOTATED Constitution, and the legislative and executive branches by another
or the 1972 Constitution.
Javellana vs. The Executive Secretary If it declares that the 1972 Constitution is now operative, how
can it exercise judicial discretion in these cases when it would have
resistance capable of jeopardizing its existence and disrupting its no other choice but to uphold the new Constitution as against any
operation. Ultimately the issue is whether the new Constitution may other one? In the circumstances it would be bereft of judicial
be set aside by this Court. But has it the power and authority to attributes as the matter would then be not meet for judicial
assume such a stupendous task when the result of such invalidation determination, but one addressed to the sovereign power of the
would be to subject this nation to divisive controversies that may people who have already spoken and delivered their mandate by
totally destroy the social order which the Government under the new accepting the fundamental law on which the government of this
Constitution has been admirably protecting and promoting under Republic is now functioning. To deny that the new Constitution has
229/326 230
been accepted and actually is in operation would be flying in the question before it; but, if it decides at all, it must necessarily affirm the
face of reason and pounding one’s bare head against a veritable existence of the government under which it exercises its judicial powers.”
stone wall or a heavily reinforced concrete, or simply “kicking the (Emphasis supplied)
deadly pricks” with one’s bare foot in an effort to eliminate the
lethal points. These rules are all traceable to Luther vs. Borden, 48 U.S (7
When a Constitution has been in operation for sometime, even How.), 12 L. Ed. 581, 598 (1849) where it was held:
without popular ratification at that, submission of the people thereto “Judicial power presupposes an established government capable of
by the organization of the government provided therein and enacting laws and enforcing their execution, and appointing judges to
observance of its prescriptions by public officers chosen thereunder, expound and administer them. The acceptance of the judicial office is a
is indicative of approval. Courts should be slow in nullifying a recognition of the authority of government from which it is derived. And if
Constitution claimed to have been adopted not in accordance with the authority of the government is annulled and overthrown, the power of its
constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; courts and other officers is annulled with it. And if a State court should enter
189 S.W. 522; Taylor vs Commonwealth, 101; Va. 829; 44 S.E. 754; upon the inquiry proposed in this case, and should come to conclusion that
Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70 Neb. 211; 97 the government under which it acted had been put aside and displaced by an
N.W. 347]. opposing government it would cease to be a court, and be incapable of
In Miller vs. Johnson, supra, the Court said: pronouncing a judicial decision upon the question it undertook to try. If it
“x x x But it is a case where a new constitution has been formed and decides at all as a court, it necessarily affirms the existence and authority of
promulgated according to the forms of law. Great interests have already the government under which it is exercising judicial power.”
arisen under it; important rights exist by virtue of it; persons have been
The foreign relations of the Republic of the Philippines have
convicted of the highest crimes known to the law, according to its
been normally conducted on the basis of the new Constitution
provisions; the political power of the government has in many ways
recognized it; and, under such circumstances, it is our duty to treat and 289
regard it as a valid constitution, and now the organic law of our state. We
need not consider the validity of the amendments made after the convention
VOL. 50, MARCH 31, 1973 289
288
288 SUPREME COURT REPORTS ANNOTATED and no state with which we maintain diplomatic relations has
Javellana vs. The Executive Secretary withdrawn its recognition of our government. (For particulars about
executive acts done under the new Constitution, see pages 22-25 of
reassembled. If the making of them was in excess of its power, yet as the the Comments of the Solicitor General, dated February 3, 1973.)
entire instrument has been recognized as valid in the manner suggested, it Certainly the invalidation of Proclamation No. 1102 and
would be equally an abuse of power by the judiciary, and violative of the Presidential Decrees Nos. 86 and 86-A by this Court would smack
rights of the people, — who can and properly should remedy the matter, if of plain political meddling which is described by the United States
not to their liking, — if it were to declare the instrument or a portion Supreme Court as “entering a political thicket” in Colegrove vs.
invalid, and bring confusion and anarchy upon the state.” (Emphasis Green, 328 U.S. p. 549. At this juncture it would be the part of
supplied) wisdom for this Court to adopt the proper attitude towards political
upheavals and realize that the question before Us is political and not
In Smith vs. Good, supra, the Court said: fit for judicial determination. For a political question is one entrusted
“It is said that a state court is forbidden from entering upon such an to the people for judgment in their sovereign capacity (Tañada vs.
inquiry when applied to a new constitution, and not an amendment, because Cuenco, G.R. No. L-10520, Feb. 28,1967, 100 Phil. 1101), or to a
the judicial power presupposes an established government, and if the co-equal and coordinate branch of the Government (Vera vs.
authority of that government is annulled and overthrown, the power of its Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1;
courts is annulled with it; therefore, if a state court should enter upon such Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No.
an inquiry, come to the conclusion that the government under which it acted 4638, May 8, 1931). A case involves a political question when there
had been displaced by an opposing government, it would cease to be a court, would be “the impossibility of undertaking independent resolutions
and it would be incapable of pronouncing a judicial decision upon the without expressing a lack of respect due to coordinate branches of
government,” or when there is “the potentiality of embarrassment
231/326 232
from multifarious pronouncements by various departments on one _______________

question.” 1 Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v.
To preserve the prestige and eminence that this Court has long Commission on Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on
enjoyed as the “ultimate organ of the “Supreme Law of the Land” in Elections, et al., L-35940; Eddie B. Monteclaro v. The Commission on Elections, et
that vast range of legal problems often strongly entangled in popular al., Sedfrey A. Ordoñez, et al. v. The National Treasurer of Philippines, et al., L-
feeling on which this Court must pronounce,” let us harken to the 35942; Vidal Tan, et al. v. Commission on Elections, et al., L-35948; Jose W. Diokno,
following admonition of Justice Frankfurter in his dissent in Baker et al. v. The Commission on Elections, L-35953; Jacinto Jimenez v. Commission on
vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663: Elections, et al., L-35961; Raul M. Gonzales v. The Honorable Commission on
Elections, et al., L-35965; Ernesto Hidalgo v. Commission Elections, et al., L-35979.
“The Court’s authority — possessed neither of the purse nor the sword
— ultimately rests on sustained public confidence in its moral sanction. 291
Such feeling must be nourished by the Court’s complete detachment, in fact
and appearance, from political entanglements and abstention from injecting
VOL. 50, MARCH 31, 1973 291
itself into the clash of political forces in political settlement....” (Emphasis
supplied) Javellana vs. The Executive Secretary
290 majority of this Court, however, was of the view that the issue was
not squarely raised in those cases, and so the Court, as a body, did
290 SUPREME COURT REPORTS ANNOTATED make any categorical pronouncement on the question of whether or
not the Constitution proposed by the 1971 Convention was validly
ratified. I was the only one who expressed the opinion that the
proposed Constitution was not validly ratified and therefore “it
should not be given force and effect.”
The people have accepted and submitted to a Constitution to The Court is now called upon to declare, and to inform the
replace the 1935 Constitution. The new organic law is now in the people of this country, whether or not that proposed Constitution had
plenitude of its efficacy and vigor. We are now living under its aegis been validly ratified and had come into effect.
and protection and only the cynics will deny this. This Court should The Solicitor General, however, contends that this Court has no
not in the least attempt to act as a super-legislature or a super-board jurisdiction to resolve the issue that we have mentioned because that
of canvassers and sow confusion and discord among our people by issue is a political question that cannot be decided by this Court.
pontificating there was no valid ratification of the new Constitution. This contention by the Solicitor General is untenable. A political
The sober realization of its proper role and delicate function and its question relates to “those questions which under the Constitution are
consciousness of the limitations on its competence, especially to be decided by the people in their sovereign capacity or in regard
situations like this, are more in keeping with the preservation of our to which full discretionary authority has been delegated to the
democratic tradition than the blatant declamations of those who wish legislative, or to the executive, branch of the government.2 The
the Court to engage in their brand of activism and would not mind courts have the power to determine whether the acts of the executive
plunging it into the whirlpool of passion and emotion in an effort to are authorized by the Constitution and the laws whenever they are
capture the intoxicating applause of the multitude. brought before the court in a judicial proceeding. The judicial
For all the foregoing, I vote to dismiss all petitions. department of the government exercises a sort of controlling, or
ZALDIVAR, J., concurring and dissenting: rather restraining, power over the two other departments of the
In these five cases, the main issue to be resolved by Court is government. Each of the three departments, within its proper
whether or not the Constitution proposed by the Constitutional constitutional sphere, acts independently of the other, and restraint is
Convention of 1971 had been ratified in accordance with the only placed on one department when that sphere is actually
provisions of Article XV of the 1935 Constitution. In the plebiscite transcended. While a court may not restrain the executive from
cases, which were decided by this Court on January 22, 1973,1 I held committing an unlawful act, it may, when the legality of such an act
the view that this issue could be properly resolved by this Court, and is brought before it in a judicial proceeding, declare it to be void, the
that it was in the public interest that this Court should declare then same as it may declare a law enacted by the legislature to be
whether or not the proposed Constitution had been validly ratified. unconstitutional.3 It is a settled doctrine that every officer under a
The constitutional government must act according to law and subject to
its restrictions, and every departure therefrom, or disregard
233/326 234
_______________ 293
2 See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr, 369 U.S.
186 (1962).
VOL. 50, MARCH 31, 1973 293
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
292
requirements prescribed in the Constitution that was amended. And

292 SUPREME COURT REPORTS ANNOTATED so, in the cases now before Us, I believe that the question of whether
or not the Constitution proposed by the 1971 Constitutional
Convention had been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the
thereof, must subject him to the restraining and controlling power of subject on whether or not, the cases, before Us involve a political, or
the people, acting through the agency of the judiciary. It must be a judicial, question. I fully concur with his conclusion that the
remembered that the people act through the courts, as well as question involved in these cases is justiciable.
through the executive or the legislature. One department is just as On the question now of whether or not the Constitution proposed
representative as the other, and judiciary is the department which is by the 1971 Constitutional Convention has been validly ratified, I
charged with the special duty of determining the limitations which am reproducing herein pertinent portions of my dissenting opinion
the law places upon all official actions.4 In the case of Gonzales v. in the plebiscite cases:
Commission on Elections,5 this Court ruled that the issue as to
whether or not a resolution of Congress acting as a constituent “The ratification of the Constitution proposed by the 1971 Constitutional
assembly violates the Constitution is not a political question and is Convention must be done in accordance with the provisions of Section 1,
therefore subject to judicial review. In the case of Avelino v. Article XV of the 1935 Constitution of the Philippines, which reads:
Cuenco,6 this Court held that the exception to the rule that courts ‘Section 1. The Congress in joint session assembled by a vote of
will not interfere with a political question affecting another three fourths of all the Members of the Senate and of the House of
department is when such political question involves an issue as to Representatives voting separately, may propose amendments to the
the construction and interpretation of the provision of the Constitution or call a convention for that purpose. Such amendments
constitution. And so, it has been held that the question of whether a shall be valid as part of this Constitution when approved by a
constitution shall be amended or not is a political question which is majority of the votes cast at an election at which the amendments are
not in the power of the court to decide, but whether or not the submitted to the people for their ratification.’
constitution has been legally amended is a justiciable question.7 “It is in consonance with the abovequoted provision of the 1935
My study on the subject of whether a question before the court is Constitution that on March 16, 1967, the Congress of the Philippines
political or judicial, based on decisions of the courts in the United Resolution No. 2 calling a convention to propose amendments to the
States — where, after all, our constitutional system has been Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as
patterned to a large extent — made me arrive at the considered view follows:
that it is in the power of this Court, as the ultimate interpreter of the ‘Section 7. The amendments proposed by the Convention shall be
Constitution, to determine the validity of the proposal, the valid and considered part of the Constitution when approved by a
submission, and the ratification of any change in the Constitution. majority of the votes cast in an election at which they are submitted
Ratification or non-ratification of a constitutional amendment is a to the people for their ratification pursuant to Article XV of the
vital element in the procedure to amend the constitution, and I Constitution.’
believe that the Court can inquire into, and decide on, the question
294
of whether or not an amendment to the constitution, as in the present
cases, has been ratified in accordance with the
_______________
4 Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5 L-38196, November 9, 1967, 21 SCRA 774.

6 83 Phil. 1957.
“It follows that from the very resolution of the Congress of the
7 McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and
Philippines which called for the 1971 Constitutional Convention, there was
Phrases p. 516. See also the plebiscite cases, mentioned in footnote 1, ante.
a clear mandate that the amendments proposed by the 1971 Convention, in
235/326 236
order to be valid and considered part of the Constitution, must be approved of the Election Code. Proclamation No. 1102 unequivocally states that the
by majority of the votes cast in an election at which they are submitted to proposed Constitution of 1972 was voted upon by the barangays. It is very
the people for the ratification as provided in the Constitution. clear, therefore, that the voting held in these barangays is not the election
“This Court, in the case of Tolentino vs. Commission Elections, L-35140, contemplated in the provisions of Section 1, Article XV, of the 1935
October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, Constitution. The election contemplated in said constitutional provision is
said: an election held in accordance with the provisions of the election law, where
‘The Constitutional Convention of 1971, as any other convention only the qualified and registered voters of the country would cast their votes,
of the same nature, owes its existence and all its authority and power where official ballots prepared for the purpose are used, where the voters
from the existing Constitution of the Philippines. This Convention would prepare their ballots in secret inside the voting booths in the polling
has not been called by the people directly as in the case of a places established in the different election precincts throughout the country,
revolutionary convention which drafts the first Constitution of an where the election is conducted by election inspectors duly appointed in
entirely new government born of either a war of liberation from a accordance with the election law, where the votes are canvassed and
mother country or of revolution against an existing government or of reported in a manner provided for in the election law. It was this kind of
a bloodless seizure of power a la coup d’etat. As to such kind of election that was held on May 14, 1935, when the Constitution of 1935 was
conventions, it is absolutely true that the convention is completely ratified; on April 30, 1937, when the amendment to the Constitution
without restraint and omnipotent all wise, and it as to such providing for Women’s Suffrage was ratified; on June 18, 1940, when the
conventions that the remarks of Delegate Manuel Roxas of the 1940 Amendments to the Constitution were ratified; on March 11, 1947
Constitutional Convention of 1934 quoted by Senator Pelaez refer. when the Parity Amendment to the Constitution was ratified; and on
No amount of rationalization can belie the fact that the current November 14, 1967 when the amendments to the Constitution to increase
convention came into being only because it was called by a the number of Members of the House of Representatives and to allow the
resolution of a joint session of Congress acting as a constituent Members of Congress to run in the elections for Delegates to the
assembly by authority of Section 1, Article XV of the present Constitutional Convention of 1971 were rejected.
Constitution x x x.’ “I cannot see any valid reason why the practice or procedure in the past,
x x x in implementing the constitutional provision requiring the holding, of an
‘As to matters not related to its internal operation and the election to ratify or reject an amendment to the Constitution, has not been
performance of its assigned mission to propose amendments to the followed in the case of the Constitution proposed by the 1971 Constitutional
Constitution, the Convention and its officers and members are all Convention.
subject to all the provisions of the existing Constitution. Now we
296
hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV.’
“In Proclamation No. 1102, issued on January 17, 1973, the 296 SUPREME COURT REPORTS ANNOTATED
295

VOL. 50, MARCH 31, 1973 295 “It is my view that the President of the Philippines cannot by decree
Javellana vs. The Executive Secretary order the ratification of the proposed 1972 Constitution thru a voting in the
barangays and make said result the basis for proclaiming the ratification of
President of the Philippines certified that as a result of the voting before the the proposed constitution. It is very clear, to me, that Proclamation No. 1102
barangays (Citizens Assemblies) 14,976,561 members of the barangays was issued in complete disregard or in violation, of the provisions of Section
voted for the adoption of the proposed Constitution, as against 743,869 who 1 of Article X of the 1935 Constitution.
voted for its rejection, and on the basis of the overwhelming majority of the “Proclamation No. 1102 mentions, furthermore, that on the question as to
votes cast by the members of all the barangays throughout the Philippines, whether or not the people would still like a plebiscite to be called to ratify
the President proclaimed that the Constitution proposed by the 1971 the new Constitution, 14,298,814 members of the barangays answered that
Convention has been ratified and has thereby come into effect. there was no need for a plebiscite but that the vote of the barangays should
“It is very plain from the very wordings of Proclamation No. 1102 that be considered a vote in a plebiscite. It would thus appear that the barangays
the provisions of Section 1 of Article XV of the Constitution of 1935 were assumed the power to determine whether a plebiscite as ordained in the
not complied with. It is not necessary that evidence be produced before this Constitution be held or not. Indeed, the provision of Section 1, Article XV
Court to show that no elections were held in accordance with the provisions of the Constitution was completely disregarded.
237/326 238
“The affirmative votes cast in the barangays are not the votes provision of Section I of Article V of the 1935 Constitution, the age
contemplated in Section 1 of Article XV of the 1935 Constitution. The votes requirement to be a qualified voter is 21 years or over.
contemplated in said constitutional provision are votes obtained through the “But what is more noteworthy is the fact that the voting in the barangays,
election processes as provided by law. except in very few instances, was done by the raising of hands by the
‘An election is the embodiment of the popular will, the expression persons indiscriminately gathered to participate in the voting, where even
of the sovereign power of the people. In common parlance, an children below 15 years of age were included. This is a matter of common
election is the act of casting and receiving the ballots, counting them, observation, or of common knowledge, which the Court may take judicial
and making the return.’ (Hontiveros vs. Altavas, 24 Phil. 632, 637). notice of. To consider the votes in the barangays as expressive of the
‘Election’ implies a choice by an electoral body at the time and popular will and use them as the basis in declaring whether a Constitution is
substantially in the manner and with the safeguards provided by law ratified or rejected is to resort to a voting by demonstrations, which is would
with respect to some question or issue. (Leffel v. Brown, Com. P1., mean the rule of the crowd, which is only one degree higher than the rule by
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5). the mob. Certainly, so important a question as to whether the Constitution,
‘* * * the statutory method whereby qualified voters or electors which is the supreme law of the land, should be ratified or not, must not be
pass on various public matters submitted to them — the election of decided by simply gathering people and asking
officers, national, state, county, township — the passing on various
298
other questions submitted for their determination.’ (29 C.J.S. 13,
citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W.
2d 1, 5, 241 Iowa 358). 298 SUPREME COURT REPORTS ANNOTATED
‘Election’ is expression of choice by voters of body politic. Javellana vs. The Executive Secretary
(Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and
them to raise their hands in answer to the question of whether the vote for or
297
against a proposed Constitution. The election as provided by law should be
strictly observed in determining the will of the sovereign people in a
VOL. 50, MARCH 31, 1973 297 democracy. In our Republic, the will of the people must be expressed
Javellana vs. The Executive Secretary through the ballot in a manner that is provided by law.
“It is said that in a democracy, the will of the people is the supreme law.
Phrases, Permanent Edition, p. 234). Indeed, the people are sovereign, but the will of the people must be
‘The right to vote may be exercised only on compliance with such expressed in a manner as the law and the demands a well-ordered society
statutory requirements as have been set by the legislature.’ (People ex require. The rule of law must prevail even over the apparent will of the
rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v. majority of the people, if that will had not been expressed, or obtained, in
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). accordance with the law. Under the rule of law, public questions must be
(Emphasis supplied). decided in accordance with the Constitution and the law. This is specially
“In this connection I herein quote the pertinent provisions of the Election true in the case of adoption of a constitution or in the ratification of an
Code of 1971: amendment to the Constitution.
‘Sec. 2. Applicability of this Act. — All elections of public “The following citations are, to me, very relevant in the effort to
officers except barrio officials and plebiscites shall be conducted in determine whether the proposed Constitution of 1972 had been validly
the manner provided by this Code.’ ratified, or not:
‘Sec. 99. Necessity of registration to be entitled to vote. — In ‘When it is said that ‘the people’ have the right to alter or amend
order that a qualified voter may vote in any regular or special election the constitution, it must not be understood that term necessarily
or in any plebiscite, he must be registered in the permanent list of includes all the inhabitants of the state. Since the question of the
voters for the city, municipality or municipal district in which he adoption or rejection of a proposed new constitution or constitutional
resides: Provided, that no person shall register more than once amendment must be answered a vote, the determination of it rests
without first applying for cancellation of his previous registration.’ with those who, by existing constitution, are accorded the right of
(Italics supplied). (Please see also Sections 100-102, Election Code suffrage. But the qualified electors must be understood in this, as in
of 1971, R.A. No. 6388) many other cases, as representing those who have not the right to
“It is stated in Proclamation No. 1102 that the voting was done by the participate in the ballot. If a constitution should be abrogated and a
members of citizens assemblies who are 15 years of age or over. Under the new one adopted, by the whole mass of people in a state acting
through representatives not chosen by the ‘people’ in political sense
239/326 240
of the term, but by the general body of the populace, the movement 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep.
would be extra-legal.’ (Black’s Constitutional Law, Second Edition, 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
pp. 47-48). ‘Provisions of a constitution regulating its own amendment, * * *
‘The theory of our political system is that the ultimate sovereignty are not merely directory, but are mandatory; and a strict observance
is in the people, from whom springs all legitimate authority. The of every substantial mandatory; and a strict observance of every
people of the Union created a national constitution, and conferred substantial requirement is essential to the validity of the proposed
upon it powers of sovereignty on certain subjects, and the people of amendment. These provisions are as binding on the people as
each State created a State government, to exercise the remaining
300
powers of sovereignty so

VOL. 50, MARCH 31, 1973 299
Javellana vs. The Executive Secretary on the legislature, and the former are powerless by vote of
acceptance to give legal sanction to an amendment the submission of
far as they were disposed to allow them to be exercised at all. By the which was made in disregard of the limitations contained in the
constitution which they establish, they not only tie up the hands of constitution.’ (16 C.J.S. 35-36. cited in Graham v. Jones, 3 So. 2d
their official agencies, but their own hands as well; and neither the 761, 782).
officers of the State, nor the whole people as an aggregate body, are ‘It is said that chaos and confusion in the government affairs of
at liberty to take action in opposition to this fundamental law.’ the State will result from the Court’s action in declaring the proposed
(Cooley’s Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited constitutional amendment void. This statement is grossly and
in Graham v. Jones, 3 So. 2d. 761, 782). manifestly inaccurate. If confusion and chaos should ensue, it will
‘The theory that a favorable vote by the electorate, however not be due to the action of the Court but will be the result of the
unanimous, on a proposal to amend a constitution, may cure, render failure of the drafters joint resolution to observe, follow and obey the
innocuous, all or any antecedent failures to observe commands of plain essential provisions of the Constitution. Furthermore, to say
that Constitution in respect of the formulation or submission of that, the Court disregards its sworn duty to enforce the Constitution,
proposed amendments thereto, does not prevail in Alabama, where chaos and confusion will result, is an inherently weak argument in
the doctrine of the stated theory was denied, in obvious effect, by the favor of the alleged constitutionality of the proposed amendment. It
pronouncement 60 years ago of broad, wholesome constitutional is obvious that, if the Court were to countenance the violations of the
principles in Collier v. Frierson, supra, as quoted in the original sacramental provisions Constitution, those who would thereafter
opinion, ante. The people themselves are bound by the Constitution; desire to violate it disregard its clear mandatory provisions would
and, being so bound, are powerless, whatever their numbers, to resort to the scheme of involving and confusing the affairs of the
change or thwart its mandates, except through the peaceful means of State then simply tell the Court that it was powerless to exercise one
a constitutional convention, or of an amendment according to the of its primary functions by rendering the proper decree to make the
mode therein prescribed, or through the exertion of the original right Constitution effective.’ (Graham v. Jones, 3 So. 2d. 761, 793-794).
of revolution. ‘The Constitution may be set aside by revolution, but it “In our jurisprudence I find an instance where this Court did not allow
can only be amended in the way it provides,’ said Hobson, C.J., in the will of the majority to prevail, because the requirements of the law were
McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale
Craft, et al., 87 So. 375, 385, 387, On Rehearing). and Nico were both candidates for the office of Municipal Mayor of
‘The fact that a majority voted for the amendment, unless the vote Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly
was taken as provided by the Constitution, is not sufficient to make a filed his certificate of candidacy before the expiration of the period for the
change in that instrument. Whether a proposed amendment has been filing of the same. However, on October 10, 1947, after the period for the
legally adopted is a judicial question, for the court must uphold and filing of the certificate of candidacy, Monsale withdrew his certificate of
enforce the Constitution as written until it is amended in the way candidacy. But on November 7, 1947 Monsale attempted to revive his
which it provides for.’ Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 certificate of candidacy by withdrawing the withdrawal of certificate of
L.R.A. 560;McConaughty v. State, 106 Minn. 409, 119 N.W. candidacy. The Commission on Elections, November 8, 1947, ruled that
408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac. Monsale could no longer be a candidate. Monsale nevertheless proceeded
with his candidacy. The boards of inspectors in Miagao, however, did not
241/326 242
count the votes cast for Monsale upon the ground that the votes cast for him 302 SUPREME COURT REPORTS ANNOTATED
were stray votes, because he was considered as having no certificate of Javellana vs. The Executive Secretary
candidacy. On the other hand, the boards of inspectors credited Nico
therefore, my view that voting in the barangays on January 10, 1973 was not
301
free, and so this is one added reason why the results of the voting in the
barangays should not be made the basis for proclamation of the ratification
VOL. 50, MARCH 31, 1973 301 of the proposed Constitution.
Javellana vs. The Executive Secretary “It is my view, therefore, that Proclamation No. 1102 repugnant to the
1935 Constitution, and so it is invalid, and should not be given effect. The
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest Constitution of 1972 proposed by the 1971 Constitutional Convention
against the election of Nico in the Court of First Instance of Iloilo. In the should be considered as not yet ratified by the people of this Republic, and
count of the ballots during the proceedings in the trial court, it appeared that so it should not be given force and effect.”
Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a
margin of 601 votes in favor of Monsale. The Court of First Instance of It is urged by the Solicitor General, however, that the voting in
Iloilo decided the election protest in favor of Monsale. Upon appeal by the citizens assemblies was a substantial compliance with the
Nico, this Court reversed the decision of the lower court. This Court provisions of Article XV of the 1935 Constitution. The Solicitor
declared that because Monsale withdrew his certificate of candidacy, his General maintains that the primary thrust of the provision of Article
attempt to revive it by withdrawing his withdrawal of his certificate of XV of the 1935 Constitution is that “to be valid, amendments must
candidacy did not restore the effectiveness of his certificate of candidacy, gain the approval of the majority recognition of the democratic
and this Court declared Nico the winner in spite of the fact that Monsale had postulate that sovereign resides in the people.” It is not disputed that
obtained more votes than he. in a democratic sovereignty resides in the people. But the
“We have cited this Monsale case to show that the will of the majority of term “people” must be understood in its constitutional meaning, and
the voters would not be given effect, as declared by this Court, if certain they are “those persons who are permitted by the Constitution to
legal requirements have not been complied with in order to render the votes exercise the elective franchise.”8 Thus, in Section 2 of Article VII of
valid and effective to decide the result of an election. the 1935 Constitution, it is provided that “the President shall hold
“And so, in the cases now before this Court, the fact that the voting in his office during a term of four years and, together with the Vice-
the citizens assemblies (barangays) is not the election that is provided for in President chosen for the same term, shall be elected by direct vote of
the 1935 Constitution for the ratification of the amendment to the the people...” Certainly under that constitutional provision,
Constitution, the affirmative votes cast in those assemblies can not be made the “people” who elect directly the President and the Vice-President
the basis for declaring the ratification of the proposed 1972 Constitution, in are no other than the persons who, under the provisions of the same
spite of the fact that it was reported that 14,976,561 members of the citizens Constitution, are granted the right to vote. In like manner the
assemblies voted for the adoption as against 743,869 for the rejection, provision in Section 1 of Article II of the 1935 Constitution which
because the votes thus obtained were not in accordance with the provisions says “Sovereignty resides in the people and all government authority
of Section 1 of Article XV of the 1935 Constitution of the Philippines. The emanates from them,” the “people” who exercise the sovereign
rule of law mast be upheld. power are no other than the persons who have the right to vote under
“My last observation: One of the valid grounds against the holding of the the Constitution. In the case of Garchitorena vs. Crescini,9 this
plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is Court, speaking through Mr. Justice Johnson, said, “In democracies,
that there is no freedom on the part of the people to exercise their right of the people, combined,
choice because of the existence of martial law in our country. The same
_______________
ground holds true as regards to the voting of the barangays on January 10 to
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
15, 1973. More so, because by General Order No. 20, issued on January 7,
9 39 Phil. 258, 268.
1973, the President of the Philippines ordered ‘that the provisions of Section
3 of Presidential Decree No. 73 in so far as they allow free public discussion 303
of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be suspended VOL. 50, MARCH 31, 1973 303
in the meantime.’ It is, Javellana vs. The Executive Secretary
302
243/326 244
represent the sovereign power of the State. Their sovereign authority known as the Tydings-McDuffie Law (Public Act No. 127). Said
is expressed through the ballot, of the qualified voters, in duly Section 4 of the Tydings-McDuffie Law provides as follows:
appointed elections held from time to time, by means of which they
choose their officials for definite fixed periods, and to whom they “Section 4. After the President of the United States certified that the
entrust, for the time being, as their representatives, the exercise of constitution conforms with the provisions of this act, it shall be submitted to
the powers of government.” In the case of Moya v. Del Fierro,10 this the people of the Philippine Islands for their ratification or rejection at an
Court, speaking through Mr. Justice Laurel, said, “As long as election to he held within months after the date of such certification, on a
popular government is an end to be achieved and safeguarded, date to be fixed by the Philippine Legislature at which election, the qualified
suffrage, whatever may be the modality and form devised, must voters of the Philippine Islands shall have an opportunity to vote directly or
continue to be the means by which the great reservoir of power must against the proposed constitution and ordinances append thereto. Such
be emptied into the receptacle agencies wrought by the people election shall be held in such manner as may prescribed by the Philippine
through their Constitution in the interest of good government and the Legislature to which the return of the election shall be made. The Philippine
common weal. Republicanism, in so far as it implies the adoption of Legislature shall certify the result to the Governor-General of the Philippine
a representative type of government, necessarily points to Islands, together with a statement of the votes cast, and a copy of said
the enfranchised citizen as a particle of popular sovereignty and as constitution ordinances. If a majority of the votes cast shall be for the
the ultimate source of the established authority.” And in the case constitution, such vote shall be deemed an expression of the will of the
of Abanil v. Justice of the Peace of Bacolod,11 this Court said: “In people of the Philippine Independence, and the Governor-General shall,
the scheme of our present republican government, the people are within thirty days after receipt of the certification from the Philippine
allowed to have a voice therein through the instrumentality of Legislature, issue a proclamation for the election of officers of the
suffrage to be availed of by those possessing certain prescribed government of the Commonwealth of the Philippine Islands provided for in
qualifications. The people, in clothing a citizen with the elective the Constitution...”
franchise for the purpose of securing a consistent and perpetual
It can safely be said, therefore, that when the framers of the 1935
administration of the government they ordain, charge him with the
Constitution used, the word “election” in Section I Article XV of the
performance of a duty in the nature of a public trust, and in that
1935 Constitution they had no other idea in mind except the
respect constitute him a representative of the whole people. This
elections that were periodically held in the Philippines for the choice
duty requires that the privilege thus bestowed exclusively for the
of public officials prior to the drafting of the 1935 Constitution, and
benefit of the citizen or class of citizens professing it, but in good
also the “election” mentioned in the Independence Act at which “the
faith and with an intelligent zeal for the general benefit and welfare
qualified voters of the Philippine Islands shall have an opportunity to
of the state. (U.S. v. Cruikshauk, 92 U.S. 588)...” There is no
vote directly for or against the proposed constitution...” It is but
question, therefore, that when we talk of sovereign people, what is
logical to expect that the framers of the 1935 Constitution would
meant are the people who act through the duly qualified and
provide a mode of ratifying an amendment to that Constitution
registered voters who vote during an election that is held as provided
similar to the mode of ratifying the original Constitution itself.
in the Constitution or in the law.
The term “election” as used in Section 1 of Article XV of the 305
_______________ VOL. 50, MARCH 31, 1973 305

10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
304
It is clear therefore, that the ratification or any amendment to the
304 SUPREME COURT REPORTS ANNOTATED 1935 Constitution could only be done by holding an election, as the
term “election” was understood, and practiced, when the 1935
Constitution as drafted. The alleged referendum in the citizens
assemblies — participated in by persons aged 15 years or more,
1935 Constitution should be construed along with the term regardless of whether they were qualified voters or not, voting by
“election” as used in the Provisions of Section 4 of the Philippine raising their hands, and the results of the voting reported by the
Independence Act of the Congress of the United States, popularly barrio or ward captain, to the municipal mayor, who in turn
245/326 246
submitted the report to the provincial Governor, and the latter of the oath of office where the affiant says that he swears to “support
forwarding the reports to the Department of Local Governments, all and defend the Constitution” that the acceptance of the Constitution
without the intervention of the Commission on Elections which is is made manifest. I agree with counsel petitioners in L-36165
the constitutional body which has exclusive charge of the (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said that
enforcement and administration of all laws, relative to the conduct the members of Congress who opted to serve in the interim National
of elections — was not only a non-substantial compliance with the Assembly did only ex abundante cautela, or by way of a precaution,
provisions of Section 1 of Article XV of the 1935 Constitution but a making sure, that in the event the new Constitution becomes
downright violation of said constitutional provision. It would be definitely effective and the interim National Assembly convened,
indulging in sophistry to maintain that the voting in the citizens they can participate in legislative work in the capacity as duly
assemblies amounted to a substantial compliance with the elected representatives of the people, which otherwise they could not
requirements prescribed in Section 1 of Article XV of the 1935 do if they did not manifest their option to serve, and that option had
Constitution. to be made within 30 day from January 17, 1973, the date when
It is further contended by the Solicitor General, that even if the Proclamation No. 110 was issued. Of course, if the proposed
Constitution proposed by the 1971 Constitutional Convention was Constitution does not become effective, they continue to be
not ratified in accordance with the provisions of Section 1 of Article members of Congress under the 1935 Constitution. Let it be
XV of the 1935 Constitution, the fact is that after the President of considered that the members of the House of Representatives were
the Philippines had issued Proclamation No. 1102 declaring that the elected in 1969 to serve a term which will yet expire on December
said proposed Constitution “has been ratified by overwhelming 31, 1973. Whereas, of the Senators who opted to serve in the interim
majority of all the votes cast by the members of all the barangays National Assembly, the term of some of them will yet expire on
(citizens assemblies) throughout the Philippines and had thereby December 31, 1973, some on December 31, 1975, and the rest on
come into effect” the people have accepted the new Constitution. December 31, 1977. Let if be noted that 9 Senators did not opt to
What appears to me, however, is that practically it is only the serve in the interim National Assembly, and 18 members of the
officials and employees under the executive department of the House of Representatives also did not opt to serve in the interim
Government who have been performing their duties apparently in National Assembly.
observance of the provisions of the new Constitution. It could not be Neither can it be said that the people have accepted the new
otherwise, because the President of the Philippines, who is the head Constitution. I cannot, in conscience, accept the reported
of the executive department, had proclaimed that the new
307
Constitution had come into effect, and his office had taken the steps
to implement the provisions of the new Constitution. True it is, that
some 92 members of the VOL. 50, MARCH 31, 1973 307
306 SUPREME COURT REPORTS ANNOTATED affirmative votes in the citizens assemblies as a true and correct
expression by the people of their approval, or acceptance, of the
Javellana vs. The Executive Secretary proposed Constitution. I have my serious doubts regarding the
freedom of the people to express their views regarding the proposed
House of Representatives and 15 members of the Senate, of the Constitution during the voting in the citizens assemblies, and I have
Congress of the Philippines had expressed their option to serve in also my serious doubts regarding the truthfulness and accuracy of
the interim National Assembly that is provided for in Section 2 of the reports of the voting in the citizens assemblies. This doubt has
Article XVII of the proposed Constitution. It must be noted, been engendered in my mind after a careful examination and study
however, that of the 15 senators who expressed their option to serve of the records of these cases, particularly with respect to the reports
in the interim National Assembly only one them took his oath of of the voting in the citizens assemblies. Perhaps, it may be said that
office; and of the 92 members of the House of Representatives who the people, or the inhabitants of this country, have acquiesced to the
opted to serve in the interim National Assembly, only 22 took their new Constitution, in the sense that they have continued to live
oath of office. The fact that only one Senator out of 24, and only 22 peacefully and orderly under the government that has been existing
Representative out of 110, took their oath of office, is an indication since January 17, 1973 when it was proclaimed that the new
that only a small portion of the members of Congress had Constitution came into effect. But what could the people do? In the
manifested the acceptance of the new Constitution. It is in the taking same way that the people have lived under martial law since
247/326 248
September 23, 1972, they also have to live under the government as been acting all the way in consonance with his powers under the
it now exists, and as it has existed since the declaration of martial Constitution. The people of this Republic has reason to be happy
law on September 21, 1972, regardless of what Constitution is because, according to the President, we still have a constitutional
operative — whether it is the 1935 Constitution or the new government. It being my view that the 1935 Constitution is still in
Constitution. Indeed, there is nothing that the people can do under force, I believe Congress may still convene and pass a law calling
the circumstances actually prevailing in our country today — for an election at which the Constitution proposed by the 1971
circumstances, known to all, and which I do not consider necessary Constitutional Convention will be submitted to the people their
to state in this opinion. I cannot agree, therefore, with my worthy ratification or rejection. A plebiscite called pursuant to Section 1 of
colleagues in the Court who hold the view that the people have Article XV of the 1935 Constitution is an assurance to our people
accepted the new Constitution, and that because the people have that we still have in our country the Rule of Law and that the
accepted it, the new Constitution should be considered as in force, democratic system of government that has been implanted in our
regardless of the fact that it was not ratified in accordance with the country by the Americans, and which has become part of our social
provisions of Section 1 of Article XV of the 1935 Constitution. and political fabric, is still a reality.
It is my honest view that the Constitution proposed by the 1971 The views that I have expressed in this opinion are inspired by a
Constitutional Convention has not come into effect. I do not say, desire on my part to bring about stability in democratic and
however, that the proposed Constitution is invalid. To me, the constitutional system in our country. I feel that if this Court would
validity of the proposed Constitution is not in issue in the cases give its imprimatur to the ratification of the proposed Constitution,
before Us. What the petitioners assail is not the validity of the as announced in Proclamation
proposed Constitution but the validity of Presidential Proclamation
309
No. 1102 which declares the proposed Constitution as having been
ratified and has come into effect. It being my considered view that
the ratification of VOL. 50, MARCH 31, 1973 309
308 SUPREME COURT REPORTS ANNOTATED No. 1102, it being very clear that the provisions of Section 1 of
Article XV of the 1935 Constitution had not been complied with,
Javellana vs. The Executive Secretary We will be opening the gates for a similar disregard of the
Constitution in the future. What I mean is that if this Court now
the proposed Constitution, as proclaimed in Proclamation No. 1102, declares that a new Constitution is now in force because the
is not in accordance with the provisions of Section 1 of Article XV, members of the citizens assemblies had approved the said new
of the 1935 Constitution, I hold that Proclamation No. 1102 is Constitution, although that approval was not in accordance with the
invalid and should not be given force and effect. Their proposed procedure and the requirements prescribed in the 1935 Constitution,
Constitution, therefore, should be considered as not yet validly it can happen again in some future time that some amendments to
ratified, and so it is not in force. The proposed Constitution may still the Constitution may be adopted, even in a manner contrary to the
be submitted to a plebiscite in conformity with Section 1 of Article existing Constitution and the law, and then said proposed
XV of the 1935 Constitution. Incidentally, I must state that the amendment is submitted to the people in any manner and what will
Constitution is still in force, and this Court is still functioning under matter is that a basis is claimed that there was approval by the
the 1935 Constitution. people. There will not be stability in our constitutional system, and
I sincerely believe that the proposed Constitution may still be necessarily no stability in our government. As a member of this
submitted to the people in an election or plebiscite held in Court I only wish to contribute my humble efforts to prevent the
accordance with the provisions of Section 1 of Article XV of the happening of such a situation in the future.
1935 Constitution. In fact, as we have adverted to in this opinion, It appearing to me that the announced ratification of the proposed
this was the mandate of Congress when, on March 16, 1967, it Constitution through the voting in the citizens assemblies is a clear
passed Resolution No. 2 calling a convention to propose violation of the 1935 Constitution, what I say in this opinion is
amendments to the 1935 Constitution. The Court may take judicial simply an endeavor on my part to be true to my oath of office to
notice of the fact that the President of the Philippines has reassured defend and support the 1935 Constitution. I am inspired by what the
the nation that the government of our Republic since the declaration great jurist and statesman, Jose P. Laurel, said:
of martial law is not a revolutionary government, and that he has
249/326 250
“Let our judges be as it were the vestal keepers of the purity and sanctity 2 According to the 1935 Constitution: “The Congress in joint session assembled,
of our Constitution, and the protection and vindication of popular rights will by a vote of three-fourths of all the members of the Senate and of the House of
be safe and secure in their reverential guardianship.” Representatives voting separately may propose amendments to this Constitution or
call a convention for that purpose. Such amendments shall be valid as part of this
I only wish to help prevent, if I can, democracy and the liberties Constitution when approved by a majority of the votes cast at an election at which the
of our people from vanishing in our land, because, as Justice George amendments are submitted to the people for their ratification.” Art. XV, Section 1.
Sutherland of the U. S. Supreme Court said:
311
“(t)he saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to stretch forth a
saving hand while yet there was time.” VOL. 50, MARCH 31, 1973 311
310
position taken by the Chief Justice as set forth with his usual lucidity
310 SUPREME COURT REPORTS ANNOTATED and thoroughness has, on the whole, my concurrence, subject, of
Javellana vs. The Executive Secretary course, to reservations insofar as it contains views and nuances to
which I have in the past expressed doubts. Nonetheless, I feel that a
brief expression of the reasons for the stand I take would not be

amiss.In coping with its responsibility arising from the function of
I concur fully with the personal views expressed by the Chief
judicial review, this Court is not expected to be an oracle given to
Justice in the opinion that he has written in these cases. Along with
utterances of eternal verities, but certainly it is more than just a keen
him, I vote to deny the motion to dismiss and give due course to the
but passive observer of the contemporary scene. It is, by virtue of its
petitions in these cases.
role under the separation of powers concept, involved not
FERNANDO, J., dissenting:
necessarily as a participant in the formation of government policy,
No question more momentous, none impressed with such
but as an arbiter of its legality. Even then, there is realism in what
transcendental significance is likely to confront this Court in the near
Lerner did say about the American Supreme Court as “the focal
or distant future as that posed by these petitions. For while the
point of a set of dynamic forces which [could play] havoc with the
specific substantive issue is the validity of Presidential Proclamation
landmarks of the American state and determine the power
No. 1102, an adverse judgment may be fraught with consequences
configuration of the day.”3 That is why there is this caveat. In the
that, to say the least, are far-reaching in its implications. As stressed
United States as here, the exercise of the power of judicial review is
by respondents, “what petitioners really seek to invalidate is the new
conditioned on the necessity that the decision of a case or
Constitution.”1 Strict accuracy would of course qualify such
controversy before it so requires. To repeat, the Justices of the
statement that what is in dispute, as noted in the opinion of the Chief
highest tribunal are not, as Justice Frankfurter made clear,
Justice, goes only as far as the validity of its ratification. It could
“architects of policy. They can nullify the policy of others, they are
very well be though that the ultimate outcome is not confined within
incapable of fashioning their own solutions for social problems.”4
such limit, and this is not to deny that under its aegis, there have
Nonetheless, as was stressed by Professors Black5 and Murphy,6 a
been marked gains in the social and economic sphere, but given the
Supreme Court by the conclusion it reaches and the decision it
premise of continuity in a regime under a fundamental law, which
renders does not merely check the coordinate branches, but also by
itself explicitly recognizes the need for change and the process for
its approval stamps with legitimacy the action taken. Thus in
bringing it about,2 it seems to me that the more appropriate course is
affirming constitutional supremacy, the political departments could
this Court to give heed to the plea of petitioners that the most serious
seek the aid of the judiciary. For
attention be paid to their submission that the challenged executive
act fails to meet the test of constitutionality. Under the
circumstances, with regret and with due respect for the opinion of _______________
my brethren, I must perforce dissent. It would follow therefore that 3 Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays,
the legal Lerner made this not-entirely-inaccurate observation: “No governmental institution
that consists of a group of legal technicians appointed for life can ever hope to cope
with, much less solve, the exigent problems of our polity.” Ibid., 231. He was
_______________
referring of course to the Supreme Court of the United States.
1 Memorandum for Respondents, 2.
4 Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).
251/326 252
5 Black, The People and the Court (1960). VOL. 50, MARCH 31, 1973 313
6 Murphy, Elements of Judicial Strategy (1964).
312
to be tested in the light of the fundamental doctrine of separation
of powers that it is not only the function but the solemn duty of the
judiciary to determine what the law is and to apply it in cases and
Javellana vs. The Executive Secretary controversies that call for decision.7 Since the Constitution pre-
eminently occupies the highest rung in the hierarchy of legal norms,
the assent it gives to what has been done conduces to its support in a it is in the judiciary, ultimately this Tribunal, that such a
regime where the rule of law holds sway. In discharging such a role, responsibility is vested. With the 1935 Constitution containing, as
this Court must necessarily take in account not only what the exigent above noted, an explicit article on the subject of amendments, it
needs of the present demand but what may lie ahead in the would follow that the presumption to be indulged in is that the
unexplored and unknown vistas of the future. It must guard against question of whether there has been deference to its terms is for this
the pitfall of lack of understanding of the dominant forces at work to Court to pass upon. What is more, the Gonzales,8 Tolentino9 and
seek a better life for all, especially those suffering from the pangs of Planas10 cases speak unequivocally to that effect. Nor is it a valid
poverty and disease, by a blind determination to adhere to the status objection to this conclusion that what was involved in those cases
quo. It would be tragic, and a clear case of its being recreant to its was the legality of the submission and not ratification, for from the
trust, if the suspicion can with reason be entertained that its very language of the controlling article, the two vital steps are
approach amounts merely to a militant vigilantism that is violently proposal and ratification, which as pointed out in Dillon v. Gloss,11
opposed to any form of social change. It follows then that it does not “cannot be treated as unrelated acts, but as succeeding steps in a
suffice that recourse be had only to what passes for scholarship in single endeavor.”12 Once an aspect thereof is viewed as judicial,
the law that could be marred by inapplicable erudition and narrow there would be no justification for considering the rest as devoid of
legalism. Even with due recognition, such factors, however, I that character. It would be for me then an indefensible retreat,
cannot, for reasons to be set more lengthily and in the light of the deriving no justification from circumstances of weight and gravity, if
opinion of the Chief Justice, reach the same result as the majority of this Court were to accede to what is sought by respondents and rule
my brethren. For, in the last analysis, it is my firm conviction that that the question before us is political.
the institution of judicial review speaks too clearly for the point to On this point, it may not be inappropriate to refer to a separate
be missed that official action, even with due allowance made for the opinion of mine in Lansang v. Garcia.13 Thus: “The term has been
good faith that invariably inspires the step taken, has to face the made applicable to controversies clearly non-judicial and therefore
gauntlet of a court suit whenever there is a proper case with the beyond its jurisdiction or to an issue involved in a case appropriately
appropriate parties. subject to its cognizance, as to
1. Respondents are acting in the soundest constitutional tradition
when, at the outset, they would seek a dismissal of these petitions. _______________
For them, the question raised is political and thus beyond the 7 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103
jurisdiction of this Court. Such an approach cannot be indicted for Phil. 1051 (1957); Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.
unorthodoxy. It is implicit in the concept of the rule of law that 8 Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
rights belong to the people and the government possesses powers 9 Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971, 41 SCRA 702.
only. Essentially then, unless such an authority may either be 10 Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
predicated on express or implied grant in the Constitution or the 11 256 US 368 (1921).
statutes, an exercise thereof cannot survive an inquiry as to its 12 Ibid., 374-375.
validity. Respondents through Solicitor-General Mendoza would 13 L-33964, Dec. 11, 1971, 42 SCRA 448.
deny our competence to proceed further. It is their view, vigorously
pressed and plausibly asserted, that since what is involved is not 314
merely the effectivity of an amendment but the actual coming into
effect of a new constitution, the matter is not justiciable. The 314 SUPREME COURT REPORTS ANNOTATED
immediate reaction is that such a contention is
313
253/326 254
which there has been a prior legislative or executive different. As was expressed by him: “Judicial questions, in what
determination to which deference must be paid. It has likewise been may be thought the more useful sense, are those which the sovereign
employed loosely to characterize a suit where the party proceeded has set to be decided in the courts. Political questions, similarly, are
against is the President or Congress, or any branch thereof. If to be those which the sovereign has entrusted to the so-called political
delimited with accuracy, “political questions” should refer to such as departments of government or has reserved to be settled by its own
would under the Constitution be decided by the people in their extra-governmental action.”17 What appears undeniable then both
sovereign capacity or in regard to full discretionary authority is from the standpoint of Philippine as well as American decisions is
vested either in the President or Congress. It is thus beyond the the care and circumspection required before the conclusion is
competence of the judiciary to pass upon. Unless clearly falling warranted that the matter at issue is beyond judicial cognizance, a
within the formulation, the decision reached by the political political question being raised.
branches whether in the form of a congressional act or an executive 2. The submission of respondents on this subject of political
order could be tested in court. Where private rights are affected, the question, admittedly one of complexity and importance, deserves to
judiciary has no choice but to look into its validity. It is not to be lost be pursued further. They would derive much aid and comfort from
sight of that such a power comes into play if there be an appropriate the writings of both Professor Bickel18 of Yale and Professor
proceeding that may be filed only after each coordinate branch has Freund19 of Harvard, both of whom in turn are unabashed admirers
acted. Even when the Presidency or Congress possesses plenary of Justice Brandeis. Whatever be the merit inherent in their lack of
powers, its improvident exercise or the abuse thereof, if shown, may enthusiasm for a more active and positive role that must be played
give rise to a justiciable controversy. For the constitutional grant of by the United States Supreme Court in constitutional litigation, it
authority is usually unrestricted. There are limits to what may be must be judged in the light of our own history. It cannot be denied
done and how it is to be accomplished. Necessarily then, the courts that from the well nigh four decades of constitutionalism in the
in the proper exercise of judicial review could inquire into the Philippines, even discounting an almost similar period of time dating
question of whether or not either of the two coordinate branches has from the inception of American sovereignty, there has sprung a
adhered to what is laid down by the Constitution. The question thus tradition of what has been aptly termed as judicial activism. Such an
posed is judicial rather than political.”14 The view entertained by approach could be traced to the valedictory address before the 1935
Professor Dodd is not too dissimilar. For him such a term “is Constitutional Convention of Claro M. Recto. He spoke of the trust
employed to designate certain types of functions committed to the reposed in the judiciary in these words: “It is one of the paradoxes of
political organs of government (the legislative and executive democracy that the people at times place more confidence in
departments, or either of them) and not subject to judicial instrumentalities of the State other than those directly chosen by
investigation.”15 After a thorough study of American judicial them for the exercise of their sovereignty.”20 It would thus appear
decisions, both federal and state, he could conclude: “The field of that even then this Court was expected not to assume an attitude of
judicial non-enforceability is important, but is not large when timidity and hesitancy when a constitutional question is posed.
contrasted with the whole body of written constitutional texts. The There was
exceptions from judicial enforceability fall primarily within the field
of public or governmental interests.”16 Nor was Professor Weston’s _______________
formulation any 17 Weston, Political Questions, I Selected Essays an Constitutional Law 418, 422
(1938).
_______________ 18 Cf. Bickel, The Least Dangerous Branch (1962).
14 Ibid., 504-505. 19 Cf. Freund, On Understanding the Supreme Court (1950). Also his The
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Supreme Court of the United States (1962).
Essays on Constitutional Law 355, 387 (1938). 20 Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-
16 Ibid., 395. 1935), Appendix L, 800.
315 316
255/326 256
the assumption of course that it would face up to such a task, Nor am I persuaded that the reading of the current drift in
without regard to political considerations and with no thought except American legal scholarship by the Solicitor-General and his equally
that of discharging its trust. Witness these words Justice Laurel in an able associates presents the whole picture. On the question of
early landmark case, People v. Vera,21 decided in 1937: “If it is ever judicial review, it is not a case of black and white; there are shaded
necessary for us to make vehement affirmance during this formative areas. It goes too far, in my view, if the perspective is one of
period of political history, it is that we are independent of the dissatisfaction, with its overtones of distrust. This expression of
Executive no less than of the Legislative department of our disapproval has not escaped Dean Rostow of Yale, who began one of
government — independent in the performance of our functions, his most celebrated legal essays. The Democratic Character of
undeterred by any consideration, free from politics, indifferent to Judicial Review, thus: “A theme of uneasiness, and even of guilt,
popularity, and unafraid of criticism in the accomplishment of our colors the literature about judicial review. Many of those who have
sworn duty as we see it and as we understand it.”22 The hope of talked, lectured, and written about the Constitution have been
course was that such assertion of independence impartiality was not troubled by a sense that judicial review is undemocratic.”25 He went
mere rhetoric. That is a matter more appropriately left to others to on to state: “Judicial review, they have urged, is an undemocratic
determine. It suffices to stake that what elicits approval on the part shoot on an otherwise respectable tree. It should be cut off, or at
of our people of a judiciary ever alert to inquire into alleged least kept pruned and inconspicuous.”26 His view was precisely the
breaches of the fundamental law is the realization that to do so is opposite. Thus: “The power of constitutional review, to be exercised
merely to do what is expected of it and that thereby there is no by some part of the government, is implicit in the conception of a
invasion of spheres appropriately belonging to the political written constitution delegating limited powers. A written
branches. For it needs to be kept in kind always that it can act only constitution would promote discord rather than order in society if
when there is a suit with proper parties before it, wherein rights there were no accepted authority to construe it, at the least in case of
appropriate for judicial enforcement are sought to be vindicated. conflicting action by different branches of government or of
Then, too, it does not approach constitutional questions with constitutionally unauthorized governmental action against
dogmatism or apodictic certainty nor view them from the shining individuals. The limitation and separation of powers, if they are to
cliffs of perfection. This is not to say though that it is satisfied with survive, require a procedure for independent mediation and
an empiricism untroubled by the search for jural consistency and construction to reconcile the inevitable disputes over the boundaries
rational coherence. A balance has to be struck. So juridical realism of constitutional power which arise in the process of government.”27
requires. Once allowance made that for all its care and More than that, he took pains to emphasize:
circumspection this Court manned by human beings fettered by
fallibility, nonetheless earnestly and sincerely striving to do right, _______________
the public acceptance of its vigorous pursuit of the task of assuring 23 63 Phil. 139 (1936).
that the Constitution be obeyed is easy to understand. It has not in 24 L-35925, January 22, 1973.
the past shirked its responsibility to ascertain whether there has been 25 Rostow, The Democratic Character of Judicial Review in Selected Essays on
compliance with and fidelity to constitutional requirements. Such is Constitutional Law 1938 1962, 1, 2 (1963).
the teaching of a host of cases from 26 Ibid.
27 Ibid, 3.
_______________
318
21 65 Phil. 56 (1937).
22 Ibid., 96.
317
VOL. 50, MARCH 31, 1973 317

“Whether another method of enforcing the Constitution could
Javellana vs. The Executive Secretary have been devised, the short answer is that no such method
developed. The argument over the constitutionality of judicial
Angara v. Electoral Commission23 to Planas v. Commission on review has long since been settled by history. The power and duty of
Elections.24 It should continue to exercise its jurisdiction, even in the the Supreme Court to declare statutes or executive action
face of a plausible but not sufficiently persuasive insistence that the unconstitutional in appropriate cases is part of the living
matter before it is political. Constitution. ‘The course of constitutional history,’ Mr. Justice
257/326 258
Frankfurter recently remarked, ‘has cast responsibilities upon the That is why it has been correctly maintained that notwithstanding
Supreme Court which it would be “stultification” for it to evade.’ ”28 the absence of any explicit provision in the fundamental law of the
Nor is it only Dean Rostow who could point Frankfurter, reputed to United States Constitution, that distinguished American
belong to the same school of thought opposed to judicial activism, if constitutional historian, Professor Corwin, could rightfully state that
not its leading advocate during his long stay in the United States judicial review “is simply incidental to the power of courts to
Supreme Court, as one fully cognizant of the stigma that attaches to interpret the law, of which the Constitution is part, in connection
a tribunal which neglects to meet the demands of judicial review. with the decision of cases.”31 This is not to deny that there are those
There is a statement of similar importance from Professor Mason: who would place the blame or the credit, depending upon one’s
“In Stein v. New YorkFrankfurter remarked, somewhat self- predilection, on Marshall’s epochal opinion in Marbury v.
consciously perhaps, that the ‘duty of deference cannot be allowed Madison.32 Curtis belonged to that persuasion. As he put it: “The
imperceptibly to slide into abdication.’ ”29 Professor Konefsky, like problem was given no answer by the Constitution. A hole was left
Dean Rostow, could not accept characterization of judicial review as where the Court might drive in the peg of judicial supremacy, if it
undemocratic. Thus his study of Holmes and Brandeis, the following could. And that is what John Marshall did.”33 At any rate there was
appears: “When it is said that judicial review is an undemocratic something in the soil of American juristic thought resulting in this
feature of our political system, it ought also to be remembered that tree of judicial power so precariously planted by Marshall striking
architects of that system did not equate constitutional government deep roots and showing wonderful vitality and hardiness. It now
with unbridled majority rule. Out of their concern for political dominates the American legal scene. Through it, Chief Justice
stability and security for private rights, * * *, they designed a Hughes, before occupying that exalted position, could state in a
structure whose keystone was to consist of barriers to the lecture: “We are under a Constitution, but the Constitution is what
untrammeled exercise of power by any group. They perceived no the judges say it is * * *.”34 The above statement is more than just
contradiction between effective government and constitutional an aphorism that lends itself to inclusion in judicial anthologies or
checks. To James Madison, who may legitimately be regarded as the bar association speeches. It could and did provoke from Justice
philosopher of the Constitution, the scheme of mutual restraints was Jackson, an exponent of the judicial restraint school of
the best answer to what he viewed as the chief problem in erecting a
system of free representative government: ‘In framing a government _______________
which is to be administered by men over men, the great difficulty 30 Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
lies in 31 Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450
(1938).
_______________ 32 1 Cranch 137 (1803).
28 Ibid., 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. 33 Curtis, Lions Under the Throne, 12 (1947).
People of California, 342 US 165 (1952). 34 Addresses and Papers of Charles Evans Hughes, 139-140 (1908).
29 Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of
320
Justice Frankfurter found in his opinion in Stein v. New York, 346 US 156 (1953).
319
VOL. 50, MARCH 31, 1973 319
Javellana vs. The Executive Secretary thought, this meaningful query: “The Constitution nowhere
provides that it shall be what the judges say it is. How, did it come
this: you must first enable the government to control the governed; about that the statement not only could be but could become current
and in the next place oblige it to control itself.’ ”30 as the most understandable comprehensive summary of American
There is thus an inevitability to the flowering of judicial review. Constitutional law?”35 It is no wonder that Professor Haines could
Could it be that the tone of discontent apparent in the writings of pithily and succinctly sum up the place of the highest American
eminent authorities on the subject evince at the most fears that the tribunal in the scheme of things in this wise: “The Supreme Court of
American Supreme Court might overstep the bounds allotted to the the United States has come to be regarded as the unique feature of
judiciary? It cannot be a denial of the fitness of such competence the American governmental system.”36 Let me not be
being vested in judges and of their being called upon to fulfill such a misunderstood. There is here no attempt to close one’s eyes to a
trust whenever appropriate to the decision of a case before them. discernible tendency on the part of some distinguished faculty minds
259/326 260
to look askance at what for them may be inadvisable extension of and the limitations on that power.”43 As for Professor Bickel, it has
judicial authority. For such indeed is the case as reflected in two been said that as counsel for the New York Times in the famous
leading cases of recent vintage, Baker v. Carr,37 decided in 1962 Vietnam papers case,44 he was less than insistent on the American
and Powell v. MacCormack,38 in 1969, both noted in the opinion of Supreme Court exercising judicial self-restraint. There are signs that
the Chief Justice. The former disregarded the warning of Justice the contending forces on such question, for some an unequal contest,
Frankfurter in Colegrove v. Green39 about the American Supreme are now quiescent. The fervor that characterized the expression of
Court declining jurisdiction on the question of apportionment as to their respective points of view appears to have been minimized. Not
do so would cut very deep into the very being of Congress.”40 For that it is to be expected that it will entirely disappear, considering
him, the judiciary “ought not to enter this political thicket.” Baker how dearly cherished are, for each group, the convictions, prejudices
has since then been followed; it has spawned a host of cases.41 one might even say, entertained. At least what once was fitly
Powell, on the question of the power of a legislative body to exclude characterized as the booming guns of rhetoric, coming from both
from its ranks a person whose qualifications directions, have been muted. Of late, scholarly disputations have
been centered on the standards that should govern the exercise of the
_______________ power of judicial review. In his celebrated Holmes lecture in 1959 at
35 Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949). the Harvard Law School, Professor Wechsler advocated as basis for
36 Haines, Charles Grove, The Role of the Supreme Court in American decision what he termed neutral principles of constitutional law.45 It
Government and Politics, 1789-1835, 3 (1960). has brought forth a plethora of law
37 369 US 186.
38 395 US 486. _______________
39 328 US 549 (1946). 376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105, 18 L ed
40 Ibid., 556. 2d 650, 87 S Ct. 1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct.
41 Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. (1964); Wright v. 1554 (1967).
Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct (1964); Reynolds v. Sims, 377 US 42 77 Phil. 192 (1946).
533, 12 L ed 2d 506, 84 S Ct 1362 (1964); WMCA v. Lomenzo, 377 US 633, 12 L ed 43 Ibid., 56.
2d 568, 84 S Ct. (1964); Maryland Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 44 New York Times Company v. United States, 29 L ed. 822 (1971).
84 S Ct. 1442 (1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609, 84 S Ct. 1453 45 Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law
(1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S.Ct. 1462 (1964); Lucas Review 77 (1959). It is the first essay in his Principles, Politics and Fundamental Law.
v. Colorado General Assembly, 377 US 713, L ed 2d 632, 84 S Ct. 1472 (1964);
322
Fortson v. Dorsey, 379 us 433, 13 L ed 2d 401, 85 S Ct. 498 (1965); Burns v.
Richardson, 384 US 73, 16 L ed 2d
321
VOL. 50, MARCH 31, 1973 321

review articles, the reaction ranging from guarded conformity to
Javellana vs. The Executive Secretary caustic criticism.46 There was, to be sure, no clear call to a court in
effect abandoning the responsibility incumbent on it to keep
are uncontested, for many the very staple of what is essentially governmental agencies within constitutional channels. The matter
political, certainly goes even further than the authoritative Philippine has been put in temperate terms by Professor Frank thus: “When
decision of Vera v. Avelino,42 It does look then that even in the allowance has been made for all factors, it nevertheless seems to me
United States, the plea for judicial self-restraint, even if given voice that the doctrine of political questions ought to be very sharply
by those competent in the field of constitutional law, has fallen on confined to where the functional reasons justify it and that in a give
deaf ears. There is in the comments of respondents an excerpt from involving its expansion there should be careful consideration also of
Professor Freund quoting from one of his essays appearing in a the social considerations which may militate against it. The doctrine
volume published in 1968. It is not without interest to note that in has a certain specious charm because of its nice intellectualism and
another paper, also included therein, he was less than assertive about because of the fine deference it permits to expertise, to secret
the necessity for self-restraint and apparently mindful of the claims knowledge, and to the prerogatives of others. It should not be
of judicial activism. Thus: “First of all, the Court has a responsibility allowed to grow as a merely intellectual plant.”47
to maintain the constitutional order, the distribution of public power,
261/326 262
It is difficult for me at least, not to be swayed by appraisal, if one does not lose sight of how the article on amendments is
coming from such impeccable sources of the worth and significance phrased. A word, to paraphrase Justice Holmes may not be a crystal,
of judicial review in the United States. I cannot resist the conclusion transparent and unchanged, but it is not, to borrow from Learned
then that the views advanced on this subject by distinguished Hand, that eminent jurist, a rubber band either. It would be
counsel for petitioners, with unwarranted in my view then to assert that the requirements of the
1935 Constitution have been met. There are American decisions,49
_______________ and they are not
46 The principal articles are: Pollak, Constitutional Adjudication: Relative or
Absolute Neutrality, 11 J. Pub. L. 48 (1962); Rostow, American Legal Realism and _______________
the Sense of Profession, 34 Rocky Mt. L. Rev. 123, 136-46 (1962); Henkin, Some 48 Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 (1957).
Reflections on Current Constitutional Controversy, 109 U. Pa. L. Rev. 637 (1961); 49 Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss. 650 (1856);
Henson, A Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553 (1961); Penn v. Tollison, 26 Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738
Miller, A Note on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1883); McMillan v. Blattner, 67 Iowa 287, 25 NW 245 (1885); State v. Davis, 2D
(1961), Wright, The Supreme Court Cannot be Neutral, 40 Texas L. Rev. 599 (1961); Neb. 220, 19 Pac. 894 (1888); State v. Tooker, 15 Mont. 8, 37 Pac. 840 (1894); Russie
Arnold, Professor Hart’s Theology, 73 Harv. L. Rev. 1298 (1960); Black, The v. Brazzell, 128 Mo. 93, 30 SW 526 (1895); State v. Powell, 77 Miss. 543, 27 So. 927
Lawfulness of the Segration Decisions, 69 Yale L. J. 421 (1960); Griswold, Of Time (1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind.
and Attitudes: Professor art and Judge Arnold, 74 Harv. L. Rev. 81 (1960); Karst, 104, 59 NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v.
Legislative Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller Kalbach, 109 Va. 475, 64 SE 342 (1909); People ex rel. Swift v. Luce, 74 Misc. Rep.
and Howell The Myth of Neutrality in Constitutional Adjudication, 27U. Chi. L. Rev. 551, 133 US 9 (1912); McCreary v. Speer, 156 Ky. 783, 162 SW 99 (1914); State v.
661 (1960); Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Donald, 160 Wis. 21, 151 NW 331 (1915); State v. Marcus, 160 Wis. 354, 152 NW
Rev. 571 (1960); Hart, Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 419 (1915); State v. Campbell, 94 Ohio St. 403, 115 NE 29 (1916); In re Opinion of
(1959); Pollak, Racial Domination and Judicial Integrity: A Reply to Professor Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v. Vouchan, 202
Wechsler, 108 U. Pa. L. Rev. 1 (1959).
324
47 Cahn, Supreme Court and Supreme Law, 40 (1954).
323
VOL. 50, MARCH 31, 1973 323
Javellana vs. The Executive Secretary few in number, which require that there be obedience to the
literal terms of the applicable provision. It is understandable why it
Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather should be thus. If the Constitution is the supreme law, then its
than the advocacy of the Solicitor-General, possess the greater mandate must be fulfilled. No evasion is tolerated. Submission to its
weight and carry persuasion. So much then for the invocation of the commands can be shown only if each and every word is given
political question principle as a bar to the exercise of our meaning rather than ignored or disregarded. This is not to deny that
jurisdiction. a recognition conclusive effect attached to the electorate manifesting
3. That brings me to the issue of the validity of the ratification. its will to vote affirmatively on the amendments proposed poses an
The crucial point that had to be met is whether Proclamation No. obstacle to the judiciary being insistent on the utmost regularity.
1102 manifests fidelity to the explicit terms of Article XV. There is, Briefly stated, substantial compliance is enough. A great many
of course, the view not offensive to reason that a sense of the American State decisions may be cited in support of such a
realities should temper the rigidity of devotion to the strict letter of doctrine.50
the text to allow deference to its spirit to control. With due
recognition of its force in constitutional litigation,48 if my reading of _______________
the events and the process that led to such proclamation, so clearly Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371 (1921);
set forth in the opinion of the Chief Justice, is not inaccurate, then it Switzer v. State, 103 Ohio St. 306, 133 NE 552 (1921); Johnson v. Craft, 87 So. 375,
cannot be confidently asserted that there was such compliance. It 205 Ala. 386 (1921); In re Opinion of the Justices, 237 Mars. 589, 130 NE 202
would be to rely on conjectural assumptions that did founder on the (1921); Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922); Hamilton v. Deland,
rock of the undisputed facts. Any other conclusion would, for me, 191 NW 829, 221 Mich. 541 (1923); In re Initiative Petition, 89 Okl. 124, 214 P. 186
require an interpretation that borders on the strained. So it has to be
263/326 264
(1923); Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924); McAdams v. Henley, Lee V. Price, 54 Utah, 474, 181 P. 948 (1919), Erwin v. Nolan, 280 Mo. 401, 217 SW
169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Floyd, 130 SC 434, 126 SE 336 (1925); 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921); Thompson v. Livingston,
State v. Zimmerman, 187 Wis. 180, 204 NW 803 (1925); Brown v. City of New York, 116 S.C. 412, 107 SE 581 (1921); Thrailkill v. Smith, 106 Ohio St. 1, 138 NE 532
125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel. Bahns v. City of New Orleans, (1922); Brawner v. Curran, 141 Ind. 586, 119 A. 250 (1922); Fahey v. Hackmann, 291
163 La. 777 So. 718 (1927); Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 Mo. 351 SW 752 (1922); Goolsby v. Stephens, 155 Ga. 529, 117 SE 439 (1923);
(1928); Lane v. Lukens, 48 Idaho 517, 283 P. 532 (1929); School Dist. of City of Manos v. State, 98 Tax. Cr. 87, 263 SW 310 (1924); State v. Zimmermann, 187 Wis.
Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW 474 (1933); Collier v. Gray, 116 180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 235, 130 A. 407 (1925); Board of
Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55 R.I. 56, 178 A. 433 Liquidation of State Debt of Louisiana v. Whitney-Central Trust and Savings Bank,
(1935); State ex rel Landis v. Thompson, 120 Fla. 860,163 So. 270 (1935); Tausig v. 168 La. 560, 122 So. 850 (1929); State v. Cline, 118 Neb. 150, 224 NW 6 (1929);
Lawrence, 328 Pa. 408, 197 A. 235 (1938); Downs v. City of Bromingham, 240 Ala. California Teacher’s Ass’n. v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934); Collier v.
177, 198 So. 231 (1940); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); Pearson Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. Commission v.
v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmer v. Dunn, 216 SC 558, 59 SE Smith, 335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186 SE 420
158 (1950). (1936); Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937);
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); Senate File No. 31, Swanson v. State, 132 Neb. 82, 271 NW 264 (1937); Stonns v. Heck, 238 Ala. 196,
25 Neb. 864, 41 NW 981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); 190 So. 78 (1939); Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative
Nesbit v. People, 19 Colo. 441, 36 Pac. 221 (1894); Hays v. Hays, 5 Idaho 154, 47 P. Petition No. 224, 197 Okl. 432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316
732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW 756 (1897); Russell v. Grey, 164 Mich. 694, 26 NW 2d 569 (1947); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662
Mo. 69, 63 SW 849 (1901); Gabbert v. Chicago, R.I. Ry. Co. 171 Mo. 84, 70 SW (1948).
(1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v. Loomis, 135 51 Commonwealth Act No. 492 (1939).
Mich. 556, 98 NW 262 (1904); West v. State, 50 Fla. 154,
326
325

VOL. 50, MARCH 31, 1973 325
ordinance appended to the 1935 Constitution, it was made that
the election for such purpose was to “be conducted in conformity
Even if the assumption be indulged in that Article XV is not with the provisions of the Election Code insofar as the same may be
phrased in terms too clear to be misread, so that this Court is called applicable.”52 Then came the statute,53 calling for the plebiscite on
upon to give meaning and perspective to what could be considered the three 1940 amendments providing for the plebiscite on the three
words of vague generality, pregnant with uncertainty, still whatever 1930 amendments providing for a bicameral Congress or a Senate
obscurity it possesses is illumined when the light of the previous and a House of Representatives to take the place of a unicameral
legislation is thrown on it. In the first Commonwealth Act,51 National Assembly,54 reducing the term of the President to four
submitting to the Filipino people for approval or disapproval certain years but allowing his re-election with the limitation that he cannot
amendments to the original serve more than eight consecutive years,55 and creating an
independent Commission on Elections.56 Again, it was expressly
_______________ provided that the election “shall be conducted in conformity with the
39 So. 412 (1905); State v. Winnett, 78 Neb. 379, 110 NW 113 (1907); Farrell v. Port provisions of the Election Code in so far as the same may be
of Columbia, 50 Or. 169, 93 P. 254 (1908); In re Mcconaughy, 106 Minn. 392, 119 applicable.”57 The approval of the present parity amendment was by
NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824 (1911); Hammond v. virtue of a Republic Act58 which specifically made applicable the
Clark, 136 Ga. 313, 71 SE 479 (1911), Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 then Election Code.59 There is a similar provision in
(1912); Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 the legislation,60 which in cotemplation of the 1971 Constitutional
Wash. 332, 136 P. 374 (1913); Tabor v. City of Walla Walla, 77 Wash. 579, 137 P. Convention, saw to it that there be an increase in the membership of
1040 (1914); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey v. the House of Representatives a maximum of one hundred eighty and
Persinger, 43 Okl. 41,141 P. 13 (1914); Cress v. Estes, 43 Okl. 213 P. 411 (1914); assured the eligibility of senators and representatives to become
Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor, 117 Ark. 465, members of such constituent body without forfeiting their seats, as
175 SW 40 (1915); Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917); State v. Wetz, proposed amendments to be voted on in the 1967 elections.61 That is
40 N.D. 299, 168 NW 835 (1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319 (1919); the
265/326 266
_______________ out, that only with the recognition of the nation as the separate
52 Ibid., Section 3. political unit in public law is there the juridical recognition of the
53 Commonwealth Act No. 517 (1940). people composing it “as the source of political authority.”64 From
54 Article VI of the 1935 Constitution. them, as Corwin
55 Article VII of the 1935 Constitution.
56 It is to be noted that under Commonwealth Act No. 607 (1940), subsequently _______________
amended by Commonwealth Act No. 657 (1940), there was a statutory creation of an Republic Act Numbered One hundred eighty, as amended, insofar as they are not
independent Commission on Elections. inconsistent herewith, are made applicable to the election provided for in this Act.” It
57 Section 3, Commonwealth Act No. 517. is to be remembered that in the plebiscite held, the two proposals last. Cf. on this
58 Republic Act No. 73 (1946). point, Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
59 Section 3 of Republic Act 73 reads as follows: “The provisions of 62 The 1935 Constitution provides: “The Philippines is a republican state.
Commonwealth Act Numbered Three Hundred and fifty-seven, otherwise known as Sovereignty resides in the people and all government authority emanates from them.”
the Election Code, and Commonwealth Numbered Six hundred and fifty-seven, Article II, Section 1.
entitled “An Act to Reorganize the Commission on Elections,” is so far as they are 63 Laski, Grammar of Politics, 4th ed., 34 (1937).
not inconsistent herewith, are hereby made applicable to the election provided for in 64 McIver, The Web of Government, 84 (1947).
this Act.”
60 Republic Act 4913 (1967). 328
61 Section 3 of Republic Act 4913 reads thus: “The provisions of

VOL. 50, MARCH 31, 1973 327
did stress, emanate “the highest possible embodiment of human
will,”65 which is supreme and must be obeyed. To avoid any
confusion and in the interest of clarity, it should be expressed in the
consistent course of interpretation followed by the legislative manner ordained by law. Even if such is not the case, however, once
branch. It is most persuasive, if not controlling. The restraints thus it is manifested, it is to be accepted as final and authoritative. The
imposed would set limits to the Presidential action taken, even on government which is merely an agency to register its commands has
the assumption that either as an agent of the Constitutional no choice but to submit. Its officials must act accordingly. No
Convention or under his martial law prerogatives, he was not devoid agency is exempt such a duty, not even this Court. In that sense, the
of power to specify the mode of ratification. On two vital points, lack of regularity in the method employed to register its wishes is
who can vote and how they register their will, Article XV had been fatal in its consequences. Once the fact of acceptance by people of a
given a definitive construction. That is why I fail to see sufficient new fundamental law is made evident, the judiciary is left with no
justification for this Court affixing the imprimatur of its approval on choice but to accord it recognition. The obligation to render it
the mode employed for the ratification of the revised Constitution as obeisance falls on the courts as well.
reflected in Proclamation No. 1102.4. Nor is the matter before us There are American State decisions that enunciate such a
solely to be determined by the failure to comply with the doctrine. While certainly not controlling, they are not entirely bereft
requirements of Article XV. Independently of the lack of validity of of persuasive significance. In Miller v. Johnson,66 decided in 1892, it
the ratification of the new Constitution, if it be accepted by the was set forth in the opinion of Chief Justice Holt that on May 3,
people, in whom sovereignty resides according to the Constitution,62 1890, an act was passed in Kentucky, providing for the calling of a
then this Court cannot refuse to yield assent to such a political convention for the purpose of framing a new constitution and the
decision of the utmost gravity, conclusive in its effect. Such a election of delegates. It provided that before any form of
fundamental principle is meaningless if it does not imply, to follow constitution made by them should become operative, it should be
Laski, that the nation as a whole constitutes the “single center of submitted to the vote of the state and ratified by a majority of those
ultimate reference,” necessarily the possessor of that “power that is voting. The constitution then in force authorized the legislature, the
able to resolve disputes by saying the last word.”63 If the origins of preliminary steps having been taken, to call a convention “for the
the democratic polity enshrined in the 1935 Constitution with the purpose of readopting, amending, or changing” it contained no
declaration that the Philippines is a republican state could be traced provision giving the legislature the power to require a submission of
back to Athens and to Rome, it is no doubt true, as McIver pointed its work to a vote of the people. The convention met in September,
267/326 268
1890. By April, 1891, it completed a draft of a constitution, fidelity to it and proclaiming it, as directed thereby; by the
submitted it to a popular vote, and then adjourned until September Legislature in its formal official act adopting a joint resolution, July
following. When the convention reassembled, the delegates made 15, 1902, recognizing the Constitution ordained by the convention
numerous changes in instrument. As thus amended, it was which assembled in the city of Richmond on the 12th day of June,
promulgated by the convention of September 28, 1891, as the new 1901, as the
constitution. An
_______________
_______________ 67 Ibid., 523.
65 Corwin, The Higher Law Background of American Constitutional Law, in 1 68 101 Va. 829, 44 SE 754.
Selected Essays on Constitutional Law 3 (1938).
330
66 92 Ky. 589, 18 SW 522.
329
VOL. 50, MARCH 31, 1973 329
Javellana vs. The Executive Secretary Constitution of Virginia; by the individual oaths of members to
support it, and by enforcing its provisions; and the people in their
action was brought to challenge its validity. It failed in the lower primary capacity by peacefully accepting it and acquiescing in it, by
court. In affirming such judgment dismissing the action, Chief registering as voters under it to the extent of thousands throughout
Justice Holt stated: “If a set of men, not selected by the people the state, and by voting, under its provisions, at a general election
according to the forms of law, were to formulate an instrument and for their representatives in the Congress of the United States. The
declare it the constitution, it would undoubtedly be the duty of the Constitution having been thus acknowledged and accepted by the
courts to declare its work a nullity. This would be revolution, and office administering the government and by the people of the state,
this the courts of the existing government must resist until they are and there being no government in existence under the Constitution
overturned by power, and a new government established. The of 1869 opposing or denying its validity, we have no difficulty in
convention, however, was the offspring of law. The instrument holding that the Constitution in question, which went into effect at
which we are asked to declare invalid as a constitution has been noon on the 10th day of July, 1902, is the only rightful, valid, and
made and promulgated according to the forms of law. It is a matter existing Constitution of this state, and that to it all the citizens of
of current history that both the executive and legislative branches of Virginia owe their obedience and loyal allegiance.”69
the government have recognized its validity as a constitution, and It cannot be plausibly asserted then that premises valid in law are
are now daily doing so. * * * While the judiciary should protect the lacking for the claim that the revised Constitution has been accepted
rights of the people with great care and jealousy, because this is its by the Filipino people. What is more, so it has been argued, it is not
duty, and also because; in times of great popular excitement, it is merely a case of its being implied. Through the Citizens Assemblies,
usually their last resort, yet it should at the same time be careful not there was a plebiscite with the result as indicated in Proclamation
to overstep the proper bounds of its power, as being perhaps equally No. 1102. From the standpoint of respondents then, they could
dangerous; and especially where such momentous results might allege that there was more than just mere acquiescence by the
follow as would be likely in this instance, if the power of the sovereign people. Its will was thus expressed formally and
judiciary permitted, and its duty requires, the overthrow of the work unmistakably. It may be added that there was nothing inherently
of the convention.”67 In Taylor v. Commonwealth,68 a 1903 decision, objectionable in the informal method followed in ascertaining its
it was contended that the Virginia Constitution reclaimed in 1902 is preference. Nor is the fact that Filipinos of both sexes above the age
invalid as it was ordained and promulgated by the convention of fifteen were given the opportunity to vote to be deplored. The
without being submitted for ratification or rejection by the people. greater the base of mass participation, the more there is fealty to the
The Court rejected such a view. As stated in the opinion of Justice democratic concept. It does logically follow likewise that such
Harrison: “The Constitution of 1902 was ordained and proclaimed circumstances being conceded, then no justifiable question may be
by a convention duly called by direct vote of the people of the state raised. This Court is to respect what had thus received the people’s
to revise and amend the Constitution of 1869. The result of the work sanction. That is not for me though whole of it. Further scrutiny
of the convention has been recognized, accepted, and acted upon as even then is not entirely foreclosed. There is still an aspect that is
the only valid Constitution of the state by the Governor in swearing
269/326 270
judicial, an inquiry may be had as to whether such indeed was the reach. It has occasioned deep thought and considerable soul-
result. This is searching. For there are countervailing
332
_______________
69 Ibid., 755. A similar approach may be noted in Arie v. State, 23 Okl. 166, 100
P. 23 (1909) and Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911). 332 SUPREME COURT REPORTS ANNOTATED
331
considerations that exert a compulsion not easy to resist. It can be

VOL. 50, MARCH 31, 1973 331
asserted with truth, especially in the field of social and economic
Javellana vs. The Executive Secretary rights, that with the revised Constitution, there is an auspicious
beginning for further progress. Then too it could resolve what
no more than what the courts do in election cases. There are other appeared to be the deepening contradictions of political life,
factors to bear in mind. The fact that the President so certified is reducing at times governmental authority to near impotence and
well-nigh conclusive. There is in addition the evidence flowing from imparting a sense of disillusionment in democratic processes. It is
the conditions of peace and stability. There thus appears to be not too much to say therefore that there had indeed been the revision
conformity to the existing order of things. The daily course of events of a fundamental law to vitalize the very values out of which
yields such a conclusion. What is more, the officials under the 1935 democracy grows. It is one which has all the earmarks of being
Constitution, including practically all Representatives and a majority responsive to the dominant needs of the times. It represents an
of the Senators, have signified their assent to it. The thought persists, outlook cognizant of the tensions of a turbulent era that is the
however, that as yet sufficient time has not elapsed to be really present. That is why for some what was done represented an act of
certain. courage and faith, coupled with the hope that the solution arrived at
Nor is this all. There is for me an obstacle to the petitions being is a harbinger of a bright and rosy future.
dismissed for such ascertainment of popular will did take place It is such a comfort then that even if my appraisal of the situation
during a period of martial law. It would have been different had had commanded a majority, there is not, while these lawsuits are
there been that freedom of debate with the least interference, thus being further considered, the least interference, with the executive
allowing a free market of ideas. If it were thus, it could be truly said department. The President in the discharge of all his functions is
that there was no barrier to liberty of choice. It would be a clear-cut entitled to obedience. He remains commander-in-chief with all the
decision either way. One could be certain as to the fact of the constitutional powers it implies. Public officials can go about their
acceptance of the new or of adherence to the old. This is not to deny accustomed tasks in accordance with the revised Constitution. They
that votes are cast by individuals with their personal concerns can pursue even the tenor of their ways. They are free to act
uppermost in mind, worried about their immediate needs and captive according to its tenets. That was so these past few weeks, even
to their existing moods. That is inherent in any human institution, petitions were filed. There was not at any time any thought of any
much more so in a democratic polity. Nor is it open to any valid restraining order. So it was before. That is how things are expected
objection because in the final analysis the state exists for the to remain even if the motions to dismiss were not granted. It might
individuals who in their collectivity compose it. Whatever be their be asked though, suppose the petitions should prevail? What then?
views, they are entitled to respect. It is difficult for me, however, at Even so, the decision of this Court need not be executory right away.
this stage to feel secure in the conviction that they did utilize the Such a disposition of a case before this Court is not novel. That was
occasion afforded to give expression to what was really in their how it was done in the Emergency Powers Act controversy.70 Once
hearts. This is not to imply that such doubt could not be dispelled by compliance is had with the requirements of Article XV of the 1935
evidence to the contrary. If the petitions be dismissed however, then Constitution, to assure that the coming force of the revised charter is
such opportunity is forever lost. free from any taint of infirmity, then all doubts are set at rest.
5. With the foregoing legal principles in mind, I find myself
unable to join the ranks of my esteemed brethren who vote for the _______________
dismissal of these petitions. I cannot yield an affirmative response to 70 Araneta v. Dinglasan, 84 Phil. 368 (1949).
the plea of respondents to consider the matter closed, the
333
proceedings terminated once and for all. It is not an easy decision to
271/326 272
VOL. 50, MARCH 31, 1973 333

Javellana vs. The Executive Secretary TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he
painstakingly deals with the momentous issues of the cases at bar in

all their complexity commands my concurrence.
For some, to so view the question before us is to be caught in a
I would herein make an exposition of the fundamental reasons
web of unreality, to cherish illusions that cannot stand the test of
and considerations for my stand.
actuality. What is more, it may give the impression of reliance on
The unprecedented and precedent-setting issue submitted by
what may, for the practical man of affairs, be no more than gossamer
petitioners for the Court’s resolution is the validity and
distinctions and sterile refinements unrelated to events. That may be
constitutionality of Presidential Proclamation No. 1102 issued on
so, but I find it impossible to transcend what for me are the
January 17, 1973, certifying and proclaiming that the Constitution
implications of traditional constitutionalism. This is not to assert that
proposed by the 1971 Constitutional Convention “has been ratified
an occupant of the bench is bound to apply with undeviating rigidity
by an overwhelming majority of all the votes cast by the members of
doctrines which may have served their day. He could at times even
all the Barangays (Citizens Assemblies) throughout the Philippines,
look upon them as mere scribblings in the sands to be washed away
and has thereby come into effect.”
by the advancing tides of the present. The introduction of novel
More specifically, the issue submitted is whether the purported
concepts may be carried only so far though. As Cardozo put the
ratification of the proposed Constitution by means of the Citizens
matter: “The judge, even when he is free, is still not wholly free. He
Assemblies has substantially complied with the mandate of Article
is not to innovate at pleasure. He is not a knight-errant, roaming at
XV of the existing Constitution of 1935 that duly proposed
will in pursuit of his own ideal of beauty or of goodness. He is to
amendments thereto, in toto or parts thereof, “shall be valid as part
draw his inspiration from consecrated principles. He is not to yield
of this Constitution when approved by a majority of the votes cast at
to spasmodic sentiment, to vague and unregulated benevolence. He
an election at which the amendments are submitted to the people for
is to exercise a discretion informed by tradition, methodized by
their ratification.”1
analogy, disciplined by system, and subordinated to “the primordial
A necessary corollary issue is whether the purported ratification
necessity of order in the social life.” Wide enough in all conscience
of the proposed Constitution as signed on November 30, 1972 by the
is the field of discretion that remains.”71 Moreover what made it
1971 Constitutional Convention may be said also to have
difficult for this Court to apply settled principles, which for me have
substantially complied with its own mandate that “(T)his
not lost their validity, is traceable to the fact that the revised
Constitution shall take immediately upon its ratification by
Constitution was made to take effect immediately upon ratification.
a majority of the votes cast in a plebiscite called for the purpose and
If a period of time were allowed to elapse precisely to enable the
except as herein provided, shall supersede the Constitution of
judicial power to be exercised, no complication would have arisen.
Nineteen hundred and thirty-five and all amendments thereto.”2
Likewise, had there been only one or two amendments, no such
Respondents contend that “(A)lthough apparently what is
problem would be before us. That is why I do not see sufficient
justification for the orthodoxies of constitutional law not to operate.
_______________
Even with full realization then that the approach pursued is not
1 Section 1, which is the lone section of Art. XV; italics supplied.
all that it ought to have been and the process of reasoning not
2 Article XVII, section 16, proposed Constitution of Nov. 30, 1972; italics
without its shortcomings, the basic premises of a constitutional
supplied.
democracy, as I understand them and as set forth in the preceding
pages, compel me to vote the way I did. 335
_______________
VOL. 50, MARCH 31, 1973 335
71 Cardozo, The Nature of the Judicial Process, 141 (1921).
334
sought to be annulled is Proclamation No. 1102, what petitioners

334 SUPREME COURT REPORTS ANNOTATED really seek to invalidate is the new Constitution,” and their actions
Javellana vs. The Executive Secretary must be dismissed, because:
273/326 274
— “the Court may not inquire into the validity of the procedure for present Charter, any proposal for such amendment which is not in
ratification” which is “political in character” and that “what is sought to be conformity with the letter, spirit and intent of the Charter for effecting
invalidated is not an act of the President but of the people; amendments, cannot receive the sanction of this Court.”8
— “(T)he fact of approval of the new Constitution by an overwhelming — As continues to be held by a majority of this Court, proposed
majority of the votes cast as declared and certified in Proclamation No. amendments to the Constitution “should be ratified in only one way, that is,
1102 is conclusive on the courts; in an election or plebiscite held in accordance with law and participated in
— “Proclamation No. 1102 was issued by the President in the exercise of only by qualified and duly registered voters”9 and under the supervision of
legislative power under martial law. x x x Alternatively, or the Commission on Elections.10
contemporaneously, he did so as “agent” of the Constitutional Convention”; — Hence, if the Court declares Proclamation 1102 null and void because
— “alleged defects, such as absence of secret voting, enfranchisement of on its face, the purported ratification of the proposed Constitution has not
persons less than 21 years, non supervision (by) the Comelec are matters not faithfully nor substantially observed nor complied with the mandatory
required by Article XV of the 1935 Constitution”; (sic) requirements of Article XV of the (1935) Constitution, it would not be
— “after ratification, whatever defects there might have been in the “invalidating” the proposed new Constitution but would be simply declaring
procedure are overcome and mooted (and muted) by the fact of ratification”; that the announced fact of ratification thereof by means of the Citizens
and Assemblies
— “(A)ssuming finally that Article XV of the 1935 Constitution was not
strictly followed, the ratification of the new Constitution must nonetheless _______________
be respected. For the procedure outlined in Article XV was not intended to 4 Respondents’ memo dated March 2, 1973, p. 8; italics supplied.
be exclusive of other procedures, especially one which contemplates 5 Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).
popular and direct participation of the citizenry x x x.”3 6 Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
7 Resolution on motion for reconsideration in Tolentino Comelec, L-34150; dated Nov. 4,
To test the validity of respondents’ submittal that the Court, in
1971, at page 3, per Barredo, J. with seven Justices concurring; italics supplied.
annulling Proclamation No. 1102 would really be “invalidating the
8 Idem, at page 4, italics supplied.
new Constitution,” the terms and premises of the issues have to be
9 Joint opinion of JJ. Makalintal and Castro, p. 153.
defined.
10 Article X, sec. 1 of the Constitution entrusts “exclusive charge” of the conduct of
elections to the Comelec. See also the Election Code of 1971.
— Respondents themselves assert that “Proclamation No. 1102 ... is
plainly merely declaratory of the fact that the 1973 337
_______________
VOL. 50, MARCH 31, 1973 337
3 All quotations from respondents’ memo of arguments dated March 2, 1973, pp. 2-5; italics
supplied.
336 referendums does not pass the constitutional test and that the proposed new
Constitution has not constitutionally come into existence.
336 SUPREME COURT REPORTS ANNOTATED — Since Proclamation 1102 is acknowledged by respondent to be
“plainly merely declaratory” of the disputed fact of ratification, they cannot
assume the very fact to be established and beg the issue by citing the self-
same declaration as proof of the purported ratification therein declared.
Constitution has been ratified and has come into force.4
— The measure of the fact of ratification is Article XV of the 1935 What complicates the cases at bar is the fact that the proposed
Constitution. This has been consistently held by the Court in the Gonzales5 1972 Constitution was enforced as having immediately taken effect
and Tolentino6 cases. upon the issuance on January 17, 1973 of Proclamation 1102 and the
— In the Tolentino case, this Court emphasized “that the provisions of question of whether “confusion and disorder in government affairs
Section 1 of Article XV of the Constitution, dealing with the procedure or would (not) result” from a judicial declaration of nullity of the
manner of amending the fundamental law are binding upon the Convention purported ratification is raised by the Solicitor-General on behalf of
and the other departments of the government. It must be added that ... they respondents.
are no less binding upon the people.”7 A comparable precedent of great crisis proportions is found in the
— In the same Tolentino case, this Court further proclaimed that “as long Emergency Powers cases,11 wherein the Court in its Resolution of
as any amendment is formulated and submitted under the aegis of the September 16, 1949 after judgment was initially not obtained on
275/326 276
August 26, 1949 for lack of the required six (6) votes, finally Congress expressly or impliedly, whether their purposes have
declared in effect that the pre-war emergency powers delegated by already been accomplished entirely or partially, and in the last
Congress to the President, under Commonwealth Act 671 in instance, to what extent; acquiescence of litigants; de facto officers;
pursuance of Article VI, section 26 of the Constitution, had ceased acts and contracts of parties acting in good faith; etc. It is my
and became inoperative at the latest in May, 1946 when Congress opinion that each executive order must be viewed in the light of its
met in its first regular session on May 25, 1946. peculiar circumstances, and, if necessary and possible, nullifying it,
Then Chief Justice Manuel V. Moran recited the great interests precautionary measures should be taken to avoid harm to public
and important rights that had arisen under executive orders “issued interest and innocent parties.”12
in good faith and with the best of intentions by three successive Initially, then Chief Justice Moran voted with a majority of the
Presidents, and some of them may have already produced extensive Court to grant the Araneta and Guerrero petitions holding null and
effects on the life of the nation” — in the same manner as may have void the executive orders on rentals and export control but to defer
arisen under the bona fide acts of the President now in the honest judgment on the Rodriguez and Barredo petitions for judicial
belief that the 1972 Constitution had been validly ratified by means declarations of nullity of the executive orders appropriating the
of the Citizens 1949-1950 fiscal year budget for the government and P6 million for
the holding of the 1949 national elections. After rehearsing, he
_______________ further voted to also declare null
11 Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez vs.
Treasurer (L-3054); Guerrero vs. Commissioner of Customs; and Barredo vs. _______________
Comelec (L-3056), jointly decided and reported in 84 Phil. 368. 12 Idem, at pp. 384-385; italics supplied.
338 339
338 SUPREME COURT REPORTS ANNOTATED VOL. 50, MARCH 31, 1973 339
Assemblies referendums — and indicated the proper course and and void the last two executive orders appropriating funds for the
solution therefor, which were duly abided by and confusion and 1949 budget and elections, completing the “sufficient majority” of
disorder as well as harm to public interest and innocent parties six against four dissenting justices “to pronounce a valid judgment
thereby avoided as follows: on that matter.”13
“Upon the other hand, while I believe that the emergency powers Then Chief Justice Moran, who penned the Court’s majority
had ceased in June 1945, I am not prepared to hold that all executive resolution, explained his vote for annulment despite the great
orders issued thereafter under Commonwealth Act No. 671, are per difficulties and possible “harmful consequences” in the following
se null and void. It must be borne in mind that these executive orders passage, which bears re-reading:
had been issued in good faith and with the best of intentions by three
successive Presidents, and some of them may have already produced “However, now that the holding of a special session of Congress for the
extensive effects in the life of the nation. We have, for instance, purpose of remedying the nullity of the executive orders in question appears
Executive Order No. 73, issued on November 12, 1945, remote and uncertain, I am compelled to, and do hereby, give my
appropriating the sum of P6,750,000 for public works; Executive unqualified concurrence in the decision penned by Mr. Justice Tuason
Order No. 86, issued on January 7, 1946, amending a previous order declaring that these two executive orders were issued without authority of
regarding the organization of the Supreme Court; Executive Order law.
No. 89, issued on January 1, 1946, reorganizing Courts of First “While in voting for a temporary deferment of the judgment I was
Instance; Executive Order No. 184, issued on November 19, 1948, moved by the belief that positive compliance with the Constitution by the
controlling rice and palay to combat hunger; and other executive other branches of the Government, which is our prime concern in all these
orders appropriating funds for other purposes. The consequences of cases, would be effected, and indefinite deferment will produce the opposite
a blanket nullification of all these executive orders will be result because it would legitimize a prolonged or permanent evasion of our
unquestionably serious and harmful. And I hold that before organic law. Executive orders which are, in our opinion, repugnant to the
nullifying them, other important circumstances should be inquired Constitution, would be given permanent life, opening the way or practices
into, as for instance, whether or not they have been ratified by which may undermine our constitutional structure.
277/326 278
“The harmful consequences which, as I envisioned in my concurring suffice it to say that I recognize the power of the Supreme Court.
opinion, would come to pass should the said executive orders be With respect to appointments,
immediately declared null and void are still real. They have not disappeared
by reason of the fact that a special session of Congress is not now _______________
forthcoming. However, the remedy now lies in the hands of the Chief 14 Idem, at pp. 435-437.
Executive and of Congress, for the Constitution vests in the former the 15 Idem, at p. 383. Justice Tuason further duly noted that “These observations,
power to call a special session should the need for one arise, and in the though beyond the issue as formulated in this decision, may, we trust, also serve to
latter, the power to pass a valid appropriations act. answer the vehement plea that for good of the Nation, the President should retain his
“That Congress may again fail to pass a valid appropriations act is a extraordinary powers as long as turmoil and other ills directly or indirectly traceable
remote possibility, for under the circumstances it fully realizes its great to the late war harass the Philippines.”
responsibility of saving the nation from breaking down; and furthermore,
the President in the exercise of his constitutional powers may, if he so 341
desires, compel Congress to remain in special
VOL. 50, MARCH 31, 1973 341
_______________
13 Idem, at p. 437.
340 the matter falls under a general provision which authorizes the Prime
Minister to appoint additional members to the Supreme Court. Until
340 SUPREME COURT REPORTS ANNOTATED the matter of the new Constitution is decided, I have no intention of
Javellana vs. The Executive Secretary utilizing that power.”16
Thus, it is that as in an analogous situation wherein the state
session till it approves the legislative measures most needed by the country. Supreme Court of Mississippi held that the questions of whether the
“Democracy is on trial in the Philippines, and surely it will emerge submission of the proposed constitutional amendment of the State
victorious as a permanent way of life in this country, if each of the great Constitution providing for an elective, instead of an appointive,
branches of the Government, within its own allocated sphere, complies with judiciary and whether the proposition was in fact adopted, were
its own constitutional duty, uncompromisingly and regardless of difficulties. justifiable and not political questions, we may echo the words
“Our Republic is still young, and the vital principles underlying its therein of Chief Justice Whitfield that “(W)e do not seek a
organic structure should be maintained firm and strong, hard as the best of jurisdiction not imposed upon us by the Constitution. We could not,
steel, so as to insure its growth and development along solid lines of a stable if we would, escape the exercise of that jurisdiction which the
and vigorous democracy.”14 Constitution has imposed upon us. In the particular instance in
which we are now acting, our duty to know what the Constitution of
The late Justice Pedro Tuason who penned the initial majority the state is, and in accordance with our oaths to support and
judgment (declaring null and void the rental and export control maintain it in its integrity, imposed on us a most difficult and
executive orders) likewise observed that “(T)he truth is that under embarrassing duty, one which we have not sought, but one which,
our concept of constitutional government, in times of extreme perils like all others, must be discharged.”17
more than in normal circumstances ‘the various branches, executive, In confronting the issues at bar, then, with due regard for my
legislative, and judicial,’ given the ability to act, are called upon ‘to colleagues’ contrary views, we are faced with the hard choice of
perform the duties discharge the responsibilities committed to maintaining a firm and strict — perhaps, even rigid — stand that the
respectively.’ ”15 Constitution is a “superior paramount law, unchangeable by
It should be duly acknowledged that the Court’s task of ordinary means” save in the particular mode and manner prescribed
discharging its duty and responsibility has been considerably therein by the people, who, in Cooley’s words, so “tied up (not only)
lightened by the President’s public manifestation of adherence to the hands of their official agencies, but their own hands as well”18 in
constitutional processes and of working within the proper the exercise of their sovereign will or a liberal and flexible stand that
constitutional framework as per his press conference of January would consider compliance with the constitutional article on the
20,1973, wherein he stated that “(T)he Supreme Court is the final amending process as merely directory rather than mandatory.
arbiter of the Constitution. It can and will probably determine the The first choice of a strict stand, as applied to the cases at bar,
validity of this Constitution. I did not want to talk about this because signifies that the Constitution may be amended in toto or otherwise
actually there is a case pending before the Supreme Court. But exclusively “by approval by a majority of the votes
279/326 280
_______________ 343
16 Petitioner Monteclaro’s notes of oral argument dated February 23, 1973, p. 2,
and Annex A thereof.
VOL. 50, MARCH 31, 1973 343
17 State vs. Powell, 77 Miss. 543, 27 south 927.
18 Cooley’s Constitutional Limitations, 8th Ed., Vol. I, p. 81. Javellana vs. The Executive Secretary
342

As was to be restated by Justice Jose P. Laurel a century and a
342 SUPREME COURT REPORTS ANNOTATED third later in the 1936 landmark case of Angara vs. Electoral
Javellana vs. The Executive Secretary Commission,26 “(T)he Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it
cast an election at which the amendments are submitted to the would be inconceivable if the Constitution had not provided for a
people for their ratification,”19 participated in only by qualified and mechanism by which to direct the course of government along
duly registered voters twenty-one years of age or over20 and duly constitutional channels, for then the distribution of powers would be
supervised by the Commission on Elections,21 in accordance with mere verbiage, the bill of rights mere expressions of sentiment, and
the cited mandatory constitutional requirements. the principles of good government mere political apothegms.
The alternative choice of a liberal stand would permit a disregard Certainly, the limitations of good government and restrictions
of said requirements on the theory urged by respondents that “the embodied in our Constitution are real as they should be in any living
procedure outlined in Article XV was not intended to be exclusive of Constitution.”
other procedures especially one which contemplates popular and Justice Laurel pointed out that in contrast to the United States
direct participation of the citizenry,”22 that the constitutional age and Constitution, the Philippine Constitution as “a definition of the
literacy requirements and other statutory safeguards for ascertaining powers of government” placed upon the judiciary the great burden
the will of the majority of the people may likewise be changed as of “determining the nature, scope and extent of such powers” and
“suggested, if not prescribed, by the people (through the Citizens stressed that “when the judiciary mediates to allocate constitutional
Assemblies) themselves,”23 and that the Comelec is constitutionally boundaries, it does not assert any superiority over the other
“mandated to oversee ... elections (of public officers) andnot departments ... but only asserts the solemn and sacred obligation
plebiscites.”24 entrusted to it by the Constitution to determine conflicting claims of
To paraphrase U.S. Chief Justice John Marshall who first authority under the Constitution and to establish for the parties in an
declared in the historic 1803 case of Marbury vs. Madison25 the U.S. actual controversy the rights which the instrument secures and
Supreme Court’s power of judicial review and to declare void laws guarantees to them.”
repugnant to the Constitution, there is no middle ground between II
these two alternatives. As Marshall expounded it: “(T)he Marshall was to utter much later in the equally historic 1819 case
Constitution is either a superior paramount law, unchangeable by of McCulloch vs. Maryland27 the “climactic phrase,”28 ”we must
ordinary means, or it is on a level with ordinary legislative acts, and, never forget that it is a constitution we are expounding,” — termed
like other acts, alterable when the legislature shall please to alter it. by Justice Frankfurter as “the single most important utterance in the
If the former part of the alternative be true, then a legislative act, literature of constitutional law — most important because most
contrary to the Constitution, is not law; if the latter part be true, then comprehensive and
written constitutions are absurd attempts on the part of a people, to
limit a power, in its own nature, illimitable.”
_______________
26 63 Phil. 134 (1936).
_______________
27 4 Wheaton 316 (1819).
19 Article XV, sec. 1, Constitution.
28 Dean Pollak’s “The Constitution and the Supreme Court”, Vol. 1, p. 221.
20 Article V, sec. 1, Constitution.
21 Article X, sec. 2, Constitution. 344
22 Respondents’ memo dated March 2, 1973, p. 5.
23 Respondents’ Comment dated Feb. 3, 1973, p. 67.
24 Idem, at p. 46; note in parentheses supplied.
25 1 Cranch 137 (1803). Javellana vs. The Executive Secretary
281/326 282
2. This Court held in Tolentino that:

comprehending.”29 This enduring concept to my mind permeated to
“x x x as to matters not related to its internal operation and the
this Court’s exposition and rationale in the hallmark case of
performance of its assigned mission to propose amendments to the
Tolentino, wherein we rejected the contentions on the Convention’s
Constitution, the Convention and its officers and members are all subject to
behalf “that the issue ... is a political question and that the
all the provisions of the existing Constitution. Now We hold that even as to
Convention being a legislative body of the highest order is
its latter task of proposing amendments to the Constitution, it is subject to
sovereign, and as such, its acts impugned by petitioner are beyond
the provisions of Section 1 of Article XV. This must be so, because it is plain
the control of Congress and the Courts.”30
to Us that the framers of the Constitution took care that the process of
This Court therein made its unequivocal choice of strictly
amending the same should not be undertaken with the same ease and facility
requiring faithful (which really includes substantial) compliance
in changing an ordinary legislation. Constitution making is the most valued
with the mandatory requirements of the amending process.
power, second to none, of the people in a constitutional democracy such as
1. In denying reconsideration of our judgment of October 16,
the one our founding fathers have chosen for this nation, and which we of
1971 prohibiting the submittal in an advance election of 1971
the succeeding generations generally cherish. And because the Constitution
Constitutional Convention’s Organic Resolution No. 1 proposing to
affects the lives, fortunes, future and every other conceivable aspect of the
amend Article V, section 1 of the Constitution by lowering the
lives of all the people within the country and those subject to its
voting age to 18 years (vice 21 years)30a “without prejudice to other
sovereignty, every degree of care is taken in preparing and drafting it. A
amendments that will be proposed in the future ... on other portions
constitution worthy of the people for deliberation and study. It is obvious
of the amended section,” this Court stated that “the constitutional
that correspondingly, any amendment of the Constitution is of no less
provision in question (as proposed) presents no doubt which may be
importance than the whole Constitution itself, and perforce must be
resolved in favor of respondents and intervenors. We do not believe
conceived and prepared with as much care and deliberation. From the very
such doubt can exist only because it is urged that the end sought to
nature of things, the drafters of an original constitution, as already observed
be achieved is to be desired. Paraphrasing no less than the President
earlier, operate without any limitations, restraints or inhibitions save those
of Constitutional Convention of 1934, Claro M. Recto, let those who
that they may impose upon themselves. This is not necessarily true of
would put aside, invoking grounds at best controversial, any
subsequent conventions called to amend the original constitution. Generally,
mandate of the fundamental law purportedly in order to attain some
the framers of the latter see to it that their handiwork is not lightly treated
laudable objective bear in mind that someday somehow others with
and as easily mutilated or changed, not only for reasons purely personal but
purportedly more laudable objectives may take advantage of the
more importantly, because written constitutions are supposed to be designed
precedent and continue the
so as to last for some time, if not for ages, or for, at least, as long as they can
be adopted to the needs and exigencies of the people, hence, they must be
_______________
insulated against precipitate and hasty actions motivated by more or less
29 Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
passing political moods or fancies. Thus, as a rule, the original constitutions
30 Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per Barredo, J.
carry with them limitations and conditions, more or less stringent, made so
at p. 8.
by the people themselves, in regard to the process of their amendment. And
30a Con-Con Res. No. 1 proposing the urgent lowering of the voting age to
when such limitations or conditions are so incorporated in the original
enfranchise the 18-year olds retained the “permissive” language of section 1, Art. V.
constitution, it does not
Thus, the proposed amendment read “Section 1. Suffrage may be exercised by (male)
citizens of the Philippines not otherwise disqualified by law, who are (twenty one)
_______________
EIGHTEEN years of age or over and are able to read and write ...”
31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
345
346
destruction of the Constitution, making those who laid down the lie in the delegates of any subsequent convention to claim that they may
precedent of justifying deviations from the requirements of the ignore and disregard such conditions because they are powerful and
Constitution the victims of their own folly.”31 omnipotent as their original counterparts.”32
283/326 284
3. This Court in Tolentino likewise formally adopted the doctrine from the incubus of extraneous or possibly insidious influences. We believe
of proper submission first advanced in Gonzales vs. Comelec,33 thus: the word “submitted” can only mean that the government, within its
maximum capabilities, should strain every effort to inform every citizen of
"We are certain no one can deny that in order that a plebiscite for the the provisions to be amended, and the proposed amendments and the
ratification of an amendment to the Constitution may be validly held, it must meaning, nature and effects thereof. By this, we are not to be understood as
provide the voter not only sufficient time but ample basis for an intelligent saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
appraisal of the nature of amendment per se as well as its relation to the reached, then there is no submission within the meaning of the word as
other parts of the Constitution with which it has to form a harmonious intended by the framers of the Constitution. What the Constitution in effect
whole. In the context of the present state of things, where the Convention directs is that the government, in submitting an amendment for ratification,
hardly started considering the merits of hundreds, if not thousands, should put every instrumentality or agency within its structural framework
proposals to amend the existing Constitution, to present to people any single to enlighten the people, educate them with respect to their act of ratification
proposal or a few of them cannot comply with this requirement. We are of or rejection. For as we have earlier stated, one thing is submission and
the opinion that the present Constitution does not contemplate in Section 1 another is ratification. There must be fair submission, intelligent consent or
of Article XV a plebiscite or “election” wherein the people are in the dark as rejection.”36
to frame of reference they can base their judgment on. We reject the
rationalization that the present Constitution is a possible frame of reference, They stressed further the need for undivided attention, sufficient
for the simple reason that intervenors themselves are stating the sole information and full debate, conformably to the intendment of
purpose of the proposed amendment is to enable the eighteen year olds to Article XV, section 1 of the Constitution, in this wise:
take part in the election for the ratification of the Constitution to be drafted
by the Convention. In brief, under the proposed plebiscite, there can be, in “A number of doubts or misgivings could conceivably and logically
the language of Justice Sanchez, speaking for the six members of the Court assail the average voter. Why should the voting age be lowered at all, in the
in Gonzales, supra, ‘no proper submission.’ ”34 first place? Why should the new voting age be precisely 18 years, and not 19
or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as
4. Four other members of the Court35 in a separate concurrence in the 21-year old, so that there is no need of an educational qualification to
Tolentino, expressed their “essential agreement” with Justice entitle him to vote? In this age of permissiveness and dissent, can the 18-
Sanchez’ separate opinion in Gonzales on the need for “fair year old be relied upon to vote with judiciousness when the 21-year old, in
submission (and) intelligent rejection” as “minimum requirements the past elections, has not performed so well? If the proposed amendment is
that must be met in order that there can be a proper submission to voted down by the people, will the Constitutional Convention insist on the
the people of a proposed constitutional amendment” thus: said amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed amendment
_______________ ratified at this particular time? Do some of the members of the Convention
32 Decision of Oct. 16, 1971, at p. 21. have future political plans which they want to begin to subserve by the
33 21 SCRA 774 (Nov. 9, 1967). approval this year of this
34 Decision of Oct. 16, 1971, at p. 24.
35 Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ. _______________
36 Idem at pp. 1-2.
347
348
VOL. 50, MARCH 31, 1973 347

amendment? If this amendment is approved, does it thereby mean that the

18-year old should not also shoulder the moral and legal responsibilities of
“x x x amendments must be fairly laid before the people for their
the 21-year old? Will he be required to compulsory military service under
blessing or spurning. The people are not to be mere rubber stamps. They are
the colors? Will the contractual consent be reduced to 18 years? If I vote
not to vote blindly. They must be afforded ample opportunity to mull over
against the amendment, will I not be unfair to my own child who will be 18
the original provisions, compare them with the proposed amendments, and
years old, come 1973?
try to reach a conclusion as the dictates of their conscience suggest, free
285/326 286
“The above are just samplings from here, there and everywhere — from 6. This Court, in not heeding the popular clamor, thus stated its
a domain (of searching questions) the bounds of which are not immediately position: “(I)t would be tragic and contrary to the plain compulsion
ascertainable. Surely, many more questions can be added to the already long of these perspectives, if the Court were to allow itself in deciding
litany. And the answers cannot except as the questions are debated fully, this case to be carried astray by considerations other than the
pondered upon purposefully, and accorded undivided attention. imperatives of the rule of law and of the applicable provisions of the
“Scanning the contemporary scene, we say that the people are not, and Constitution. Needless to say, in a larger measure than when it binds
by election time will not be, sufficiently informed of the meaning, nature other departments of the government or any other official or entity,
and effects of the proposed constitutional amendment. They have not been the Constitution imposes upon the Court the sacred duty to give
afforded ample time to deliberate thereon conscientiously. They have been meaning and vigor to the Constitution, by interpreting and
and are effectively distracted from a full and dispassionate consideration of construing its provisions in appropriate cases with the proper parties
the merits and demerits of the proposed amendment by their traditional and by striking down any act violative thereof. Here, as in all other
pervasive involvement in local elections and politics. They cannot thus cases, We are resolved to discharge that duty.”39
weigh in tranquility the need for and the wisdom proposed amendment.”37 7. The Chief Justice, in his separate opinion in Tolentino
concurring with this Court’s denial of the motion for
5. This Court therein dismissed the plea of disregarding reconsideration, succinctly restated this Court’s position on the
mandatory requirements of the amending process “in favor of fundamentals, as follows:
allowing the sovereign people to express their decision on the
proposed amendments” as “anachronistic in the real — On the premature submission of a partial amendment proposal, with a
constitutionalism and repugnant to the essence of the rule of law,” in “temporary provisional or tentative character”: — “x x x a partial
the following terms: amendment would deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent appraisal of the issue
“x x x The preamble of the Constitution says that the Constitution has submitted for their ratification or rejection. x x x Then, too, the submission
been ordained by the ‘Filipino people, imploring the aid of Divine to a plebiscite of a partial amendment, without a definite frame of reference,
Providence.’ Section 1 of Article XV is nothing than a part of the is fraught with possibilities which may jeopardize the social fabric. For one
Constitution thus ordained by the people. Hence, in construing said section, thing, it opens the door to wild speculations. It offers ample opportunities
We must read it as if the people had said, ‘This Constitution may be for overzealous leaders and members of opposing political camps to
amended, but it is our will that the amendment must be proposed and
submitted to Us for ratification only in the manner herein provided.’ x x x
_______________
Accordingly, the real issue here cannot be whether or not the amending
38Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J.; pp. 3-4.
process delineated
39 Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
_______________
37 Idem at p. 3.
350
349
unduly exaggerate the pros and cons of the partial amendment proposed. In
by the present Constitution may be disregarded in favor of allowing the short, it is apt to breed false hopes and create wrong impressions. As a
sovereign people to express their decision on the proposed amendments, if consequence, it is bound to unduly strain the people’s faith in the soundness
only because it is evident that the very idea of departing from the and validity of democratic processes and institutions.”
fundamental law is anachronistic in the realm of constitutionalism and — On the plea to allow submission to the sovereign people of the
repugnant to the essence of the rule of law; rather, it is whether or not the “fragmentary and incomplete” proposal, although inconsistent with the letter
provisional nature of the proposed amendment and the manner of its and spirit of the Constitution: “The view, has, also, advanced that the
submission to the people for ratification or rejection conform with the foregoing considerations are not decisive on the issue before Us, inasmuch
mandate of the people themselves in such regard, as expressed in, the as the people are sovereign, and the partial amendment involved in this case
Constitution itself.”38 is being submitted to them. The issue before Us is whether or not said
partial amendment may be validly submitted to the people for ratification “in
287/326 288
a plebiscite coincide with the local elections in November 1971,” and this adherence to the fundamental tenets set forth in the Constitution and
particular issue will not be submitted to the people. What is more, the compliance with its provisions were not obligatory. If we, in effect,
Constitution does not permit its submission to the people. The question approved, consented to or even overlooked a circumvention of said tenets
sought to be settled in the scheduled plebiscite is whether or not the people and provisions, because of the good intention with which Resolution No. 1
are in favor of the reduction of the voting age. is animated, the Court would thereby become the Judge of the good or bad
— On a “political” rather than “legalistic” approach: “Is this approach to intentions of the Convention and thus be involved in a question essentially
the problem too “legalistic?” This term has possible connotations. It may political in nature.
mean strict adherence to the law, which in the case at bar is the Supreme “This is confirmed by the plea made in the motions for reconsideration in
Law of the land. On point, suffice it to say that, in compliance with the favor of the exercise of judicial statesmanship in deciding the present case.
specific man of such Supreme Law, the members of the Supreme Court Indeed, “politics” is the word commonly used to epitomize compromise,
taken the requisite “oath to support and defend the Constitution.” x x x even with principles, for the sake of political expediency or the
Then, again, the term “legalistic” may be used to suggest inversely that the advancement of the bid for power of a given political party. Upon the other
somewhat strained interpretation of the Constitution being urged upon this hand, statesmanship is the expression usually availed of to refer to high
Court be tolerated or, at least, overlooked, upon the theory that the partial politics or politics on the highest level. In any event, politics, political
amendment on voting age is badly needed and reflects the will of the people, approach, political expediency and statesmanship are generally associated,
specially the youth. This course of action favors, in effect, adoption of and often identified, with the dictum that “the end justifies the means.” I
apolitical approach, inasmuch as the advisability of the amendment and an earnestly hope that the administration of justice in this country and the
appraisal of the people’s feeling thereon political matters. In fact, apart from Supreme Court, in particular, will adhere to or approve or indorse such
the obvious message of the mass media, and, at times, of the pulpit, the dictum.”40
Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as well _______________
as letterhead of some sectarian educational institutions, generally stating 40 All quotations are from the Chief Justice’s concurring opinion in Tolentino, pp.
that the writer is 18 years of age and urging that she or he be allowed to 4-7.
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. 352
351

Tolentino, he pointed out that although “(M)ovants’ submittal that
“As above stated, however, the wisdom of the amendment and the “(T)he primary purpose for the submission of the proposed
popularity thereof are political questions beyond our province. In fact, amendment lowering the voting age to the plebiscite on November
respondents and the intervenors originally maintained that We have no 8, 1971 is to enable the youth 18 to 20 years who comprise more
jurisdiction to entertain the petition herein, upon the ground that the issue than three (3) million of our population to participate in the
therein raised is a political one. Aside from the absence of authority to pass ratification of the new Constitution in so far as “to allow young
upon political question, it is obviously improper and unwise for the bench to people who would be governed by the Constitution to be given a say
develop into such questions owing to the danger of getting involved in on what kind of Constitution they will have” is a laudable end, x x x
politics, more likely of a partisan nature, and, hence, of impairing the image those urging the vitality and importance of the proposed
and the usefulness of courts of justice as objective and impartial arbiters of constitutional amendment and its approval ahead of the complete
justiciable controversies. and final draft of the Constitution must seek a valid solution to
“Then, too, the suggested course of action, if adopted, would constitute a achieve it in a manner sanctioned by the amendatory process
grievous disservice to the people and the very Convention itself. Indeed, the ordained by our people in the present Constitution”41 — so that there
latter and the Constitution it is in the process of drafting stand essentially for may be “submitted, not piece-meal, but by way of complete and
the Rule of Law. However, as the Supreme Law of the land, a Constitution final amendments as an integrated whole (integrated either with the
would not be worthy of its name, and the Convention called upon to draft it subsisting Constitution or with the new proposed Constitution)...”
would be engaged in a futile undertaking, if we did not exact faithful 9. The universal validity of the vital constitutional precepts and
principles above-enunciated can hardly be gainsaid. I fail to see the
289/326 290
attempted distinction of restricting their application to proposals for 2. A Massachussets case43 with a constitutional system and
amendments of particular provisions of the Constitution and not to provisions analogous to ours, best defined the uses of the term
so-called entirely new Constitutions. Amendments to an existing “people” as a body politic and “people” in the political sense who
Constitution presumably may be only of certain parts or in toto, and are synonymous with the qualified voters granted the right to vote by
in the latter case would rise to an entirely new Constitution. Where the existing Constitution and who therefore are “the sole organs
this Court held in Tolentino that “any amendment of the Constitution through which the will of the body politic can be expressed.”
is of no less importance than the whole Constitution itself and It was pointed out therein that “(T)he word ‘people’ may have
perforce must be conceived and prepared with as much care and somewhat varying significations dependent upon the connection in
deliberation,” it would appeal that the reverse would equally be true; which it is used. In some connections in the
which is to say, that the adoption of a whole new Constitution would
be of no less importance than any particular amendment and _______________
therefore the necessary care and deliberation as well as the 42 This Court thus declared in Tolentino the Con-Con voting age reduction
mandatory restrictions and safeguards in the amending process resolution as null and void and prohibited its submittal at the 1971 elections for lack
ordained by the people themselves so that “they (may) be insulated of proper submission since it did not “provide the voter ... ample basis for an
against precipitate and hasty actions motivated by more or less intelligent appraisal of the amendment. “Dec. of October 16, 1971, per Barredo, J.
passing political moods or fancies” must necessarily equally apply 43 In re-Opinion of Justices, 115 N.E. Rep. 922-923.
thereto.
354
_______________
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 354 SUPREME COURT REPORTS ANNOTATED
8, 9, 10.
353
Constitution it is confined to citizens and means the same as citizens.
VOL. 50, MARCH 31, 1973 353 It excludes aliens. It includes men, women and children. It
comprehends not only the sane, competent, law-abiding and
Javellana vs. The Executive Secretary educated, but also those who are wholly or in part dependents and
charges upon society by reason of immaturity, mental or moral
deficiency or lack of the common essentials of education. All these
III persons are secured fundamental guarantees of the Constitution in
1. To restate the basic premises, the people provided in Article life, liberty and property and the pursuit of happiness, except as
XV of the Constitution for the amending process only “by approval these may be limited for the protection of society.”
by a majority of the votes cast at an election at which the (duly In the sense of “body politic (as) formed by voluntary association
proposed) amendments are submitted to the people for their of individuals” governed by a constitution and common laws in a
ratification.” “social compact ... for the common good” and in another sense of
The people ordained in Article V, section 1 that only those “people” in a “practical sense” for “political purposes” it was therein
thereby enfranchised and granted the right of suffrage may speak the fittingly stated that in this sense, “people” comprises many who, by
“will of the body politic,” viz, qualified literate voters twenty one reason of want of years, of capacity or of the educational
years of age or over with one year’s residence in the municipality requirements of Article 20 of the amendments of the Constitution,
where they have registered. can have no voice in any government and who yet are entitled to all
The people, not as yet satisfied, further provided by amendment the immunities and protection established by the Constitution.
duly approved in 1940 in accordance with Article XV, for the ‘People’ in this aspect is coextensive with the body politic. But it is
creation of an independent Commission on Elections with “exclusive obvious that ‘people’ cannot be used with this broad meaning of
charge” for the purpose of “insuring free, orderly and honest political signification. The ‘people’ in this connection means that
elections” and ascertaining the true will of the electorate — and part of the entire body of inhabitants who under the Constitution are
more, as ruled by this Court in Tolentino, in the case of proposed entrusted with the exercise of the sovereign power and the conduct
constitutional amendments, insuring proper submission to the of government. The ‘people’ in the Constitution in a practical sense
electorate of such proposals.42 means those who under the existing Constitution possess the right to
exercise the elective franchise and who, while that instrument
291/326 292
remains in force unchanged, will be the sole organs through which 45 “Barrios are units of municipalities or municipal districts in which they are
the will of the body politic can be expressed. ‘People’ for political situated x x.” Rep. Act 3590, sec. 2.
purposes must be considered synonymous with qualified voters.’ ” 46 Rep. Act 3590, sec. 6, par. 1.
As was also ruled by the U.S. Supreme Court, “... While the
356
people are thus the source of political power, their governments,
national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their own power, as against the 356 SUPREME COURT REPORTS ANNOTATED
sudden impulse of mere
355
may be made either in writing as in regular elections, and/or
VOL. 50, MARCH 31, 1973 355 declaration by the voters to the board of election tellers.”47
The subjects of the barrio plebiscites are likewise delimited thus:
Javellana vs. The Executive Secretary “A plebiscite may be called to decide on the recall of any member of
the barrio council. A plebiscite shall be called to approve any
majorities.”44 budgetary, supplemental appropriations or special tax ordinances”
From the text of Article XV of our Constitution, requiring and the required majority vote is specified: “(F)or taking action on
approval of amendment proposals “by a majority of the votes cast at any of the above enumerated measures, majority vote of all the
an election at which the amendments are submitted to the people for barrio assembly members registered in the list of the barrio
their ratification,” it seems obvious as above-stated that “people” as secretary is necessary.”48
therein used must be considered synonymous with “qualified voters” The qualifications for voters in such barrio plebiscites and
as enfranchised under Article V, section 1 of the Constitution — elections of barrio officials49 comply with the suffrage qualifications
since only “people” who are qualified voters can exercise the right of Article V, section 1 of the Constitution and provide that “(S)EC.
of suffrage and cast their votes. 10. Qualifications of Voters and Candidates. — Every citizen of the
3. Sound constitutional policy and the sheer necessity of adequate Philippines, twenty one years of age or over, able to read and write,
safeguards as ordained by the Constitution and implementing who has been a resident of the barrio during the six months
statutes to ascertain and record the will of the people in free, orderly immediately preceding the election, duly registered in the list of
and honest elections supervised by the Comelec make it imperative voters by the barrio secretary, who is not otherwise disqualified,
that there be strict adherence to the constitutional requirements laid may vote or be a candidate in the barrio elections.”50
down for the process of amending in toto or in part the supreme law IV
of the land. 1. Since it appears on the face of Proclamation 1102 that the
Even at barrio level45 the Revised Barrio Charter fixes certain mandatory requirements under the above-cited constitutional articles
safeguards for the holding of barrio plebiscites thus: “SEC. 6. have not been complied with and that no election or plebiscite for
Plebiscite. — A plebiscite may be held in the barrio when authorized ratification as therein provided as well as in section 16 of Article
by a majority vote of the members present in the barrio assembly, XVII of the proposed Constitution itself51 has been called or held,
there being a quorum, or when called by at least four members of the there cannot be said to have been a
barrio council: Provided, however, That no plebiscite shall be held
until after thirty days from its approval by either body, and such _______________
plebiscite has been given the widest publicity in the barrio, stating 47 Idem, par. 2.
the date, time and place thereof, the questions or issues to be 48 Idem, par. 3 and 4, italics supplied.
decided, action to be taken by the voters, and such other information 49 One barrio lieutenant and six barrio councilmen; “Voting shall be by secret
relevant to the holding of the plebiscite.”46 ballot. x x.” Idem, sec. 8.
As to voting at such barrio plebiscites, the Charter further 50 Idem, sec. 10, italics supplied. The same section further disqualifies persons
requires that “(A)ll duly registered barrio assembly members convicted by final judgment to suffer one year or more of imprisonment “within two
qualified to vote may vote in the plebiscite. Voting procedures years after service” or who have violated their allegiance to the Republic and insane
or feeble-minded persons.
_______________ 51 Supra, p. 2.
44 Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
357
293/326 294
VOL. 50, MARCH 31, 1973 357 vote and interested parties would have an opportunity to thresh out
Javellana vs. The Executive Secretary properly before the Comelec all such questions in pre-proclamation
proceedings.
4. At any rate, unless respondents seriously intend to question the
valid ratification.
very statements and pronouncements in Proclamation 1102 itself
2. Petitioners raised serious questions as to the veracity and
which shows on its face, as already stated, that the mandatory
genuineness of the reports or certificates of results purportedly
amending process required by the (1935) Constitution was not
showing unaccountable discrepancies in seven figures in just five
observed, the cases at bar need not reach the stage of answering the
provinces52 between the reports as certified by the Department of
host of questions, raised by petitioners against the procedure
Local Governments and the reports as directly submitted by the
observed by the Citizens Assemblies and the reported referendum
provincial and city executives, which latter reports respondents
results — since the purported ratification is rendered nugatory by
disclaimed inter alia as not final and complete or as not signed;53
virtue of such non-observance.
whether the reported votes of approval of the proposed Constitution
5. Finally, as to respondents’ argument that the President issued
conditioned upon the non-convening of the interim National
Proclamation 1102 “as “agent” of the Constitutional Convention”55
Assembly provided in Article XVII, section 1 thereof,54 may be
under Resolution No. 5844 approved on November 22, 1973, and
considered as valid; the allegedly huge and uniform votes reported;
“as agent of the Convention the President could devise other forms
and many others.
of plebiscite to determine the will of the majority vis-a-vis the
3. These questions only serve to justify and show the basic
ratification of the proposed Constitution.”56
validity of the universal principle governing written constitutions
The minutes of November 22, 1972, of the Convention, however,
that proposed amendments thereto or in replacement thereof may be
do not at all support this contention. On the contrary, the said
ratified only in the particular mode or manner prescribed therein by
minutes fully show that the Convention’s proposal and “agency”
the people. Under Article XV, section 1 of our Constitution,
was that the President issue a decree precisely calling a plebiscite for
amendments thereto may be ratified only in the one way therein
the ratification of the proposed new Constitution on an appropriate
provided, i.e. in an election or plebiscite held in accordance with law
date, under the charge of the Comelec, and with a reasonable period
and duly supervised by the Commission on Elections, and which is
for an information campaign, as follows:
participated in only by qualified and duly registered voters. In this
manner, the safeguards provided by the election code generally “12. Upon recognition by the Chair, Delegate Duavit moved for the
assure the true ascertainment of the results of the approval of the resolution, the resolution portion of which read as follows:
_______________ _______________
52 Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners’ 55 Respondents’ memo dated March 2, 1973, supra, p. 2.
manifestation and supplemental rejoinder dated March 21, 1973 in L-36165. 56 As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did
53 Respondents’ rejoinder dated March 20, 1973 and sur-rejoinder dated March not look on the same with favor, since the constitutional point (that the Comelec has exclusive
29, 1973. charge of the conduct of elections and plebiscites) seems to have been overlooked in the
54 Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that “fourteen Assemblies.”
million nine hundred seventy six thousand five hundred sixty one (14,976,561)
359
members of all the Barangays voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty nine (743,869) who
voted for its rejection; but a majority of those who approved the new Constitution VOL. 50, MARCH 31, 1973 359
conditioned their votes on the demand that the interim National Assembly provided in Javellana vs. The Executive Secretary
its Transitory Provisions should not be convened.”

358
‘RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971
Constitutional Convention propose to President Ferdinand E. Marcos
358 SUPREME COURT REPORTS ANNOTATED that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be
295/326 296
transmitted to the President of the Philippines and the Commission had been made for the presentation of such a motion.
on Elections for implementation.’ 1.8a Delegate Guzman withdrew his motion.
“He suggested that in view of the expected approval of the final draft of the “12.9 Delegate Astilla suggested in his interpellation that there was actually
new Constitution by the end of November 1972 according to the no need for such a resolution in view of the provision of section 15, Article
Convention’s timetable, it would be necessary to lay the groundwork for the XVII on the Transitory Provisions. Delegate Duavit disagreed, pointing out
appropriate agencies of the government to undertake the necessary that the said provision did not provide for the funds necessary for the
preparation for the plebiscite. purpose.
“x x x x x “13. Delegate Ozamiz then moved to close the debate and proceed to the
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was period of amendment.
unnecessary because section 15, Article XVII on the Transitory Provision, “13.1 Floor Leader Montejo stated that there were no reservations to amend
which had already been approved on second and third readings, provided the resolution.
that the new constitution should be ratified in a plebiscite called for the “13.2 Delegate Ozamiz then moved for the previous question. Submitted to
purpose by the incumbent President. Delegate Duavit replied that the a vote, the motion was approved.
provision referred to did not include the appropriation of funds for the “Upon request of the Chair, Delegate Duavit restated the resolution for
plebiscite and that, moreover, the resolution was intended to serve formal voting.
notice to the President and the Commission on Elections to initiate the “14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the
necessary preparations. motion was lost.
“x x x x x “14.2. Thereupon, the Chair submitted the resolution to a vote. It was
“12.4 Interpellating, Delegate Madarang suggested that a reasonable period approved by a show of hands.”57
for an information campaign was necessary in order to properly apprise the
people of the implications and significance of the new charter. Delegate _______________
Duavit agreed, adding that this was precisely why the resolution was 57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-
modified to give the President the discretion to choose the most appropriate delegate Sedfrey A. Ordoñez, et al. in the plebiscite case L-359042, par. 12 of petition
date for the plebiscite. and admitted in par. 4 of answer of therein respondents dated Dec. 15, 1972.
“12.5 Delegate Laggui asked whether a formal communication to the
President informing him of the adoption of the new Constitution would not 361
suffice considering that under Section 15 of the Transitory Provisions, the
President would be duty-bound to call a plebiscite for its ratification.
VOL. 50, MARCH 31, 1973 361
Delegate Duavit replied in the negative, adding that the resolution was
necessary to serve notice to the proper authorities to prepare everything Javellana vs. The Executive Secretary
necessary for the plebiscite.
I, therefore, vote to deny respondents’ motion to dismiss and to
360
give due course to the petitions.
Promulgated: June 4, 1973*
360 SUPREME COURT REPORTS ANNOTATED ANTONIO, J.:
Javellana vs. The Executive Secretary In conformity with my reservation, I shall discuss the grounds for
my concurrence.
I
“12.6 In reply to Delegate Britanico, Delegate Duavit stated that the It is my view that to preserve the independence of the State, the
mechanics for the holding of the plebiscite would be laid down by the maintenance of the existing constitutional order and the defense of
Commission on Elections in coordination with the President. the political and social liberties of the people, in times of a grave
“12.7 Delegate Catan inquired if such mechanics for the plebiscite could emergency, when the legislative branch of the government is unable
include a partial lifting of martial law in order to allow the people to to function or its functioning would itself threaten the public safety,
assemble peaceably to discuss the new Constitution. Delegate Duavit the Chief Executive may promulgate measures legislative in
suggested that the Committee on Plebiscite and Ratification could character, for the successful prosecution of such objectives. For the
coordinate with the COMELEC on the matter. “President’s power as Commander- in-chief has been transformed
“12.8 Delegate Guzman moved for the previous question. The Chair from a simple power of military command to a vast reservoir of
declared that there was one more interpellant and that a prior reservation indeterminate powers in time of emergency. * * * In other words,
the principal canons of constitutional interpretation are * * * set
297/326 298
aside so far as concerns both the scope of the national power and the precedents of Presidential action in times of crisis, rather than
capacity of the President to gather unto himself all constitutionally judicial interpretation. Lincoln wedded his powers under the
available powers in order the more effectively to focus them upon “commander-in-chief” clause with his duty “to take care that the
the task of the hour.” (Corwin, The President: Office & Powers, pp. laws be faithfully executed,” to justify the series of extraordinary
317, 318, [1948]). measures which he took — the calling of volunteers for military
1. The proclamation of martial rule, ushered the commencement service, the augmentation of the regular army and navy, the payment
of a crisis government in this country. In terms of power, crisis of two million dollars from unappropriated funds in the Treasury to
government in a constitutional democracy entails the concentration persons unauthorized to receive it, the closing of the Post Office to
of governmental power. “The more complete the separation of “treasonable correspondence,” the blockade of southern ports, the
powers in a constitutional system, the more difficult, and yet the suspension of the writ of habeas corpus, the arrest and
more necessary” according to Rossiter, “will be their fusion in time
363
of crisis... The power of the state in crisis must not only be
_______________ VOL. 50, MARCH 31, 1973 363

* First decision promulgated by First Division of the Supreme Court. Javellana vs. The Executive Secretary
362
detention of persons “who were represented to him” as being
engaged in or contemplating “treasonable practices” — all this for
the most part without the least statutory authorization. Those actions
Javellana vs. The Executive Secretary were justified by the imperatives of his logic, that the President may,
in an emergency thought by him to require it, partially suspend the
concentrated and expanded, it must be freed from the normal system constitution. Thus his famous question: “Are all laws but one to be
of constitutional and legal limitations. One of the basic features of unexecuted, and the Government itself go to pieces lest that one be
emergency powers is the release of the government from the violated?” The actions of Lincoln “assert for the President,”
paralysis of constitutional restraints” (Rossiter, Constitutional according to Corwin, “an initiative of indefinite scope and legislative
Dictatorship, p. 290). in effect in meeting the domestic aspects of a war emergency.”
It is clearly recognized that in moments of peril the effective (Corwin, The President: Office & Powers, p. 280 [1948]). The facts
action of the government is channeled through the person of the of the civil war have shown conclusively that in meeting the
Chief Executive. “Energy in the executive,” according to Hamilton, domestic problems as a consequence of a great war, an indefinite
“is essential to the protection of the community against foreign power must be attributed to the President to take emergency
attacks ... to the protection of property against those irregular and measures. The concept of “emergency” under which the Chief
high-handed combinations which sometimes interrupt the ordinary Executive exercised extraordinary powers underwent correlative
course of justice; to the security of liberty against the enterprises and enlargement during the first and second World Wars. From its
assaults of ambition, of faction, and of anarchy.” (The Federalist, narrow concept as an “emergency” in time of war during the Civil
Number 70). “The entire strength of the nation,” said Justice Brewer War and World War I, the concept has been expanded in World War
in the Debs case (158 U.S. 564; 39 L. ed. 1092), “may be used to II to include the “emergency” preceding the war and even after it.
enforce in any part of the land the full and free exercise of all “The Second World War” observed Corwin and Koenig, was the
national powers and the security of all rights entrusted by the First World War writ large, and the quasi-legislative powers of
constitution to its care.” The marshalling and employment of the Franklin Roosevelt as “Commander-in-Chief in wartime.”..
“strength of the nation” are matters for the discretion of the Chief burgeoned correspondingly. The precedents were there to be sure,
Executive. The President’s powers in time of emergency defy most of them from the First World War, but they proliferated
precise definition since their extent and limitations are largely amazingly. What is more, Roosevelt took his first step toward war
dependent upon conditions and circumstances. some fifteen months before our entrance into shooting war. This step
2. The power of the President to act decisively in a crisis has occurred in September, 1940, when he handed over fifty so-called
been grounded on the broad conferment upon the Presidency of the overage destroyers to Great Britain. The truth is, they were not
Executive power, with the added specific grant of power under the overage, but had been recently reconditioned and recommissioned.
“Commander-in-Chief” clause of the constitution. The contours of ... Actually, what President Roosevelt did was to take over for the
such powers have been shaped more by a long line of historical nonce Congress’s power to dispose of property of the United States
299/326 300
(Article IV, Section 3) and to repeal at least two statutes.” (Corwin power of the President to order withdrawals from the public domain
& Koenig, The Presidency Today, New York University Press, 1956; not only without Congressional sanction but even
sf Corwin, The President: Office and Powers, 1948.)
365
The creation of public offices is a power confided by the
constitution to Congress. And yet President Wilson, during
VOL. 50, MARCH 31, 1973 365
364

contrary to Congressional statutes.
Javellana vs. The Executive Secretary It is evident therefore that the Steel Seizure Case, cannot be
invoked as an authority to support the view that the President in
World War I on the basis of his powers under the “Commander-in- times of a grave crisis does not possess a residual power above or in
Chief” clause created “offices” which were copied in lavish scale by consequence of his granted powers, to deal with emergencies that he
President Roosevelt in World War II. In April 1942, thirty-five regards as threatening the national security. The lesson of the Steel
“executive agencies” were purely of Presidential creation. On June Seizure case, according to Corwin and Koenig, “Unquestionably ...
7, 1941 on the basis of his powers as “Commander-in-Chief,” he tends to supplement presidential emergency power to adopt
issued an executive order seizing the North American Aviation plant temporary remedial legislation when Congress has been, in the
of Inglewood, California, where production stopped as a judgment of the President, unduly remiss in taking cognizance of
consequence of a strike. This was justified by the government as the and acting on a given situation.” (Corwin and Koenig, The
exercise of presidential power growing out of the “duty Presidency Today, New York University Press, 1956).
constitutionally and inherently resting upon the President to exert his The accumulation of precedents has thus built up the presidential
civil and military as well as his moral authority to keep the defense power under emergency conditions to “dimensions of executive
efforts of the United States a going concern” as well as “to obtain prerogative as described by John Locke, of a power to wit, to fill
supplies for which Congress has appropriated money, and which it needed gaps in the law, or even to supersede it so far as may be
has directed the President to obtain.” On a similar justification, other requisite to realize the fundamental law of nature and government,
plants and industries were taken over by the government. It is true namely, that as much as may be all the members of society are to be
that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. preserved.” (Corwin and Koenig, The Presidency Today).
Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United In the light of the accumulated precedents, how could it be
States did not sustain the claims that the President could, as the reasonably argued therefore, that the President had no power to issue
Nation’s Chief Executive and Commander-in-Chief of the armed Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
forces, validly order the seizure of most of the country’s steel mills. 1102, since these measures were considered indispensable to effect
The Court however did not face the naked question of the the desired reforms at the shortest time possible and hasten the
President’s power to seize steel plants in the absence of any restoration of normalcy? It is unavailing for petitioners to contend
congressional enactment or expressions of policy. The majority of that we are not faced by an actual “shooting war” for today’s
the Court found that this legislative occupation of the field made concept of the emergency which justified the exercise of those
untenable the President’s claim of authority to seize the plants as an powers has of necessity been expanded to meet the exigencies of
exercise of inherent executive power or as Commander-in-Chief. new dangers and crisis that directly threaten the nation’s continued
Justice Clark, in his concurrence to the main opinion of the Court, and constitutional existence. For as Corwin observed: “... today the
explicitly asserted that the President does possess, in the absence of concept of ‘war’ as a special type of emergency warranting the
restrictive legislation, a residual or resultant power above or in realization of constitutional limitations tends to spread, as it were, in
consequence of his granted powers, to deal with emergencies that he both directions, so that there is not only “the war before the war,”
regards as threatening the national security. The same view was but the ‘war after the war.’ Indeed, in the economic crisis from
shared with vague qualification by Justices Frankfurter and Jackson, which the New Deal may be said to have
two of the concurring Justices. The three dissenting Justices,
366
speaking through Chief Justice Vinson, apparently went further by
quoting with approval a passage extracted from the brief of the
government in the case of United States vs. Midwest Oil Co., (236 366 SUPREME COURT REPORTS ANNOTATED
U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the
301/326 302
Javellana vs. The Executive Secretary the method for the revision of the constitution, and automatically
apply in the final approval of such proposed new Constitution the
issued, the nation was confronted in the opinion of the late President provisions of the election law and those of Article V and X of the
with an ‘emergency greater than war’; and in sustaining certain of old Constitution. We search in vain for any provision in the old
the New Deal measures the Court invoked the justification of charter specifically providing for such procedure in the case of a
‘emergency.’ In the final result constitutional practices of wartime total revision or a rewriting of the whole constitution.
have moulded the Constitution to greater or less extent for peacetime 1. There is clearly a distinction between revision and amendment
as well, seem likely to do so still more pronouncedly under fresh of an existing constitution. Revision may involve a rewriting of the
conditions of crisis.” (Corwin, Ibid. p. 318.) whole constitution. The act of amending a constitution, on the other
The same view was expressed by Rossiter thus: hand, envisages a change of only specific provisions. The intention
of an act to amend is not the change of the entire constitution but
“The second crisis is rebellion, when the authority of a constitutional only the improvement of specific parts of the existing constitution of
government is resisted openly by large numbers of citizens who are engaged the addition of provisions deemed essential as a consequence of new
in violent insurrection against enforcement of its laws or are bent on constitutions or the elimination of parts already considered obsolete
capturing it illegally or destroying it altogether. The third crisis, one or unresponsive to the needs of the times.1 The 1973 Constitution is
recognized particularly in modern times as sanctioning emergency action by not a mere amendment to the 1935 Constitution. It is a completely
constitutional governments, is economic depression. The economic troubles new fundamental charter embodying new political,
which plagued all the countries of the world in the early thirties involved
governmental methods of an unquestionably dictatorial character in many _______________
democracies. It was thereby acknowledged that an economic existence as a 1 “When a house is completely demolished and another is erected on the same
war or a rebellion. And these are not the only cases which have justified location, do you have a changed, repaired and altered house, or do you have a new
extraordinary governmental action in nations like the United States. Fire, house? Some of the material contained in the old house may be used again, some of
flood, drought, earthquake, riots, great strikes have all been dealt with by the rooms may be constructed the same, but this does not alter the fact that you have
unusual and of dictatorial methods. Wars are not won by debating societies, altogether another or a new house. We conclude that the instrument as contained in
rebellions are not suppressed by judicial injunctions, reemployment of Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 1877;
twelve million jobless citizens will not be effected through a scrupulous but on the contrary it is a completely revised or new Constitution.” (Wheeler v. Board
regard for the tenets of free enterprise, hardships caused by the eruptions of of Trustees, 37 S.E. 2d 322, 327).
nature cannot be mitigated letting nature take its course. The Civil War, the “Every proposal which affects a change in a Constitution or adds or takes away
depression of 1933 and the recent global conflict were not and could not from it is an “amendment’, while a “revision” implies a re-examination and statement
have been successfully resolved by governments similar to those of James of the Constitution, or some part of it, in a corrected or improved form.” (Const. Secs.
Buchanan, William Howard Taft, or Calvin Coolidge.” (Rossiter, 196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va. 613).
Constitutional Dictatorship — Crisis of Government in the Modern “Amendment” and “revision” of constitution are separate procedures each having
Democracies, p. 6 [1948). a substantial field of application not mere alternative procedures in the same field.”
(McFadden v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
II
We are next confronted with the insistence of Petitioners that the 368
referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who
are allowed to participate, under the 368 SUPREME COURT REPORTS ANNOTATED
367
social and economic concepts.

VOL. 50, MARCH 31, 1973 367 According to an eminent authority on Political Law, “The
Javellana vs. The Executive Secretary Constitution of the Philippines and that of the United States
expressly provide merely for methods of amendment. They are silent
on the subject of revision. But this is not a fatal omission. There is
supervision of the Commission on Elections, the new Constitution,
nothing that can legally prevent a convention from actually revising
should therefore be a nullity. Such an argument is predicated upon
the Constitution of the Philippines or of the United States even were
an assumption, that Article XV of the 1935 Constitution provides
such conventions called merely for the purpose of proposing and
303/326 304
submitting amendments to the people. For in the final analysis, it is the law is, or has been, is a judicial power, but to declare what the
the approval of the people that gives validity to any proposal of law shall be is not within Our judicial competence and authority.
amendment or revision.” (Sinco, Philippine Political Law, p. 49). Upon the other hand, since our fundamental charter has not
Since the 1935 Constitution does not specifically provide for the provided the method or procedure for the revision or complete
method or procedure for the revision or for the approval of a new change of the Constitution, it is evident that the people have
constitution, should it now be held, that the people have placed such reserved such power in themselves. They decided to exercise it not
restrictions on themselves that they are not disabled from exercising through their legislature, but through a Convention expressly chosen
their right as the ultimate source of political power from changing for that purpose. The Convention as an independent and sovereign
the old constitution which, in their view, was not responsive to their body has drafted not an amendment but a completely new
needs and in adopting a new charter of government to enable them Constitution, which decided to submit to the people for approval, not
to rid themselves from the shackles of traditional norms and to through an act of Congress, but by means of decrees to be
pursue with new dynamism the realization of their true longings and promulgated by the President. In view of the inability of Congress to
aspirations, except in the manner and form provided by Congress for act, it was within the constitutional powers of the President, either as
previous plebiscites? Was not the expansion of the base of political agent of the Constitutional Convention, or under his authority under
participation, by the inclusion of the youth in the process of martial law, to promulgate the necessary measures for the
ratification who after all constitute the preponderant majority more
in accord with the spirit and philosophy of the constitution that _______________
political power is inherent in the people collectively? As clearly 2 Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
expounded by Justice Makasiar, in his opinion, in all the cases cited 3 Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
where the Courts held that the submission of the proposed 4 Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan,
amendment was illegal due to the absence of substantial compliance Minnesota, Nevada, New Hampshire, Oklahoma, Oregon, Utah and Wyoming in
with the procedure prescribed by the constitution, the procedure Appendix to this opinion.
prescribed by the state Constitution, is so detailed, that specified the
manner in which such submission shall be made, the persons 370
qualified to vote for the same, the date of election and other definite
standards, from which the court could safely ascertain whether or 370 SUPREME COURT REPORTS ANNOTATED
not the submission was in accordance with the Constitution. Thus
the case of In re McConaughy (119 Javellana vs. The Executive Secretary
369
ratification of the proposed new Constitution. The adoption the new
Charter was considered as a necessary basis for all the reforms set in
VOL. 50, MARCH 31, 1973 369 motion under the new society, to root out the causes of unrest. The
imperatives of the emergency underscored the urgency of its
adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in
N.E. 408) relied upon in one of the dissenting opinions involved effect, ratified the method and procedure taken. “When the people
in the application of the provisions of the state Constitution of adopt completely revised or new constitution,” said the Court in
Minnesota which clearly prescribed in detail the procedure under Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), “the
which the Constitution may be amended or revised.2 This is not true framing or submission of the instrument is not what gives it binding
with our Constitution. In the case of revision there are no “standards force and effect. The fiat of the people, and only the fiat of the
meet for judicial judgment.”3The framers of our Constitution were people, can breathe life into a constitution.”
free to provide in the Constitution the method or procedure for the This has to be so because, in our political system, all political
revision or rewriting of the entire constitution, and if such was their power is inherent in the people and free governments are founded on
intention, they could and should have so provided. Precedents were their authority and instituted for their benefit. Thus Section 1 of
not wanting. The constitutions of the various states of the American Article II of the 1935 Constitution declares that: “Sovereignty
Union did provide for procedures for their amendment and methods resides in the people and all government authority emanate from
for their revision.4 them.” Evidently the term people refers to the entire citizenry and
Certainly We cannot, under the guise of interpretation, modify, not merely to the electorate, for the latter is only a fraction of the
revise, amend, remodel or rewrite the 1935 Charter. To declare what
305/326 306
people and is only an organ of government for the election of reforestation, in the physical transformation of the environment to
government officials. make ours a cleaner and greener land. “The entire country is turning
III into one vast garden growing food for the body, for thought and for
The more compelling question, however is: Has this Court the the soul.”* More important the common man has at long last been
authority to nullify an entire Constitution that is already effective as freed from the incubus of fear.
it has been accepted and acquiesced in by the people as shown by
their compliance with the decree promulgated thereunder, their “Martial law has paved the way for a re-ordering of the basic social
cooperation in its implementation, and is now maintained by the structure of the Philippines” reported Frank Valeo to the United States
Government that is in undisputed authority and dominance? Senate. “President Marcos has been prompt and sure-footed in using the
Of course it is argued that acquiescence by the people can be power of presidential decree under martial law for this purpose. He has
deduced from their acts of conformity, because under a regime of zeroed in on areas which
martial law the people are bound to obey and act in conformity with
the orders of the President, and has absolutely no other choice. The _______________
flaw of this argument lies in its application of a mere theoretical * Leon O. Ty, Seven Months of Martial Law, Daily Express.
assumption based on the experiences of other nations on an entirely * Panorama, May 6, 1973.
different factual setting. Such an assumption flounders on the rock of

372
reality.

VOL. 50, MARCH 31, 1973 371
have been widely recognized as prime sources of the nation’s difficulties —
land tenancy, official corruption, tax evasion and abuse of oligarchic
economic power. Clearly he knows his targets ... there is marked public
It is true that as a general rule martial law is the use of military support for his leadership...” (Bulletin Today, March 3 and 4, 1973).
forces to perform the functions of civil government. Some courts
have viewed it as a military regime which can be imposed in In a similar vein, C.L. Sulzberger, a foreign affairs columnist
emergency situations. In other words, martial rule exists when the wrote, in the April 11 issue of The New York Times:
military rises superior to the civil power in the exercise of some or
all the functions of government. Such is not the case in this country.
The government functions thru its civilian officials. The supremacy During his first Presidential term (1965-1969), Mr. Marcos was
of the civil over the military authority is manifest. Except for the discouraged by the failure of legislators to approve urgently needed reforms.
imposition of curfew hours and other restrictions required for the He found his second term further frustrated by spread riots, a Maoist
security of the State, the people are free to pursue their ordinary uprising in Luzon and a much more serious Moslem insurrection in the
concerns. southern islands from Mindanao across the Sulu archipelago to the frontier
In short, the existing regime in this Country, does not contain the regions of Malaysia and Indonesia. Manila claims this war is Maoist-
oppressive features, generally associated with a regime of Martial coordinated.
law in other countries. “Upon the other hand the masses of our Mr. Marcos has now in effect taken all the reins of power and makes no
people have accepted it, because of its manifold blessings. The once promise as to when he will relinquish them. But, while fettering a free press,
downtrodden rice tenant has at long last been emancipated — a terminating Congress and locking up some opponents (many of whom were
consummation devoutly wished by every Philippine President since later amnestied), he has hauled the Philippines out of stagnation.
the 1930’s. The laborer now holds his head high because his rights Sharecropping is being ended as more than three million acres of arable
are amply protected and respected.”* A new sense of discipline has land are redistributed with state funds. New roads have been started. The
swiftly spread beyond the corridors of government into the social educational system is undergoing revision, a corruption is diminished. In
order. Responding to the challenges of the New Society, the people non-communist Asia it is virtually impossible to wholly end it and this
have turned in half a million loose firearms, paid their taxes on disagreeable phenomenon still reaches very high.
undeclared goods and income in unprecedented numbers and Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
amount, lent their labors in massive cooperation — in land reform, creating an agrarian middle-class to replace the archaic sharecropper-
in the repair of dikes, irrigation ditches, roads and bridges, in absentee landlord relationship. He is even pushing for a birth control
307/326 308
program with the tacit acceptance of the Catholic Church. He has started constitution. This distinction is concerned with the quare and not with the quantum of
labor reforms and increased wages. (Daily Express, April 15, 1973) change. It may be significant, however, that the alleged alteration does or does not
purport to affect the existence of the court itself. In
As explained in this writer’s opinion of April 24, 1973 on the
“Constancia” and “Manifestation” of counsel for petitioners: 374
The new Constitution is considered effective “if the norms
created in conformity with it are by and large applied and obeyed. 374 SUPREME COURT REPORTS ANNOTATED
As soon as the old Constitution loses its effectiveness
373
existence of a prior point in the Court’s “chain of title” to its

VOL. 50, MARCH 31, 1973 373 authority and “does not relate merely to a question of the
_______________
the nature of things, a revolutionary charge does not admit judicial power as such to
and the new Constitution has become effective, the acts that appear
determine the fact of its occurrence. If revolutionary constitution sets up a court
with the subjective meaning of creating or applying legal norms are
differently constituted from the pre-revolutionary court, neither tribunal is confronted
no longer interpreted by presupposing the old basic norm, but by
with a substantial problem, for neither can deny the act by which it was created
presupposing the new one. The statutes issued under the old
without denying the fact of its creation. Thus the Supreme Court in Luther v.
Constitution and not taken over are no longer regarded as valid, and
Borden (supra) uses language substantially parallel with what has been indicated
the organs authorized by the old Constitution no longer competent.”
above as logical explanation of the Duke of York’scase. For the court to give serious
(Kelsen, Pure Theory of Law, [1967].)
judicial consideration to such a question would present “the singular spectacle of a
The essentially political nature of the question is at once made
court sitting as a court to declare that we are not a court.” (Brittle v. People, 2 Neb.
manifest by understanding that in the final analysis, what is assailed
198, 214 [1873].) And even the alleged new constitution purports to leave intact the
is not merely the validity of Proclamation No. 1102 of the President,
former court and to permit its work to go on without hiatus, the decision which the
which is merely declaratory of the fact of approval or ratification,
judges must make is still an individual choice to be made by them as a matter of
but the legitimacy of the government. It is addressed more to the
practical politics. Two commissions are being held out to them, and if they will act as
framework and political character of this Government which now
a court they must assess under which commission they are acting. To put the matter
functions under the new Charter. It seeks to nullify a Constitution
another way, it must be true that in the first case above — of two constitutions
that is already effective.
purporting to establish two different courts, — the men who were judges under the
In such a situation, We do not see how the question posed by
old regime and the men who are called to be judges under the new have each to
petitioners could be judicially decided. “Judicial power presupposes
decide as individuals what they are to do; and it may be that they choose at grave peril
an established government capable of enacting laws and enforcing
with the factional outcome still uncertain. And, although it is equally obvious, the
their execution, and of appointing judges to expound and administer
situation is logically identical where the same men are nominated to constitute the
them. If it decides at all as a court, it necessarily affirms the
court under both the old and new constitution, at a time when the alleged change is
existence and authority of the government under which it is
occurring — if it is — peaceably and against a placid popular background. Men under
exercising judicial power.” (Luther v. Borden, 48 U.S. [7 How.] 1,
such circumstances may write most praiseworthily principles of statesmanship, upon
12 L. Ed. 598.)
sovereignty and, its nature modes of action, and upon the bases of government, to
In other words, where a complete change in the fundamental law
justify the choice between the two commissions. They can assert their choice in the
has been effected through political action, the Court whose existence
course of purported judicial action. But they cannot decide as a court, for the decision,
is affected by such change is, in the words of Mr. Melville Fuller
once made, by a retroactive hypothesis excludes any assumption of controversiality in
Weston, “precluded from passing upon the fact of change by a
the premises.
logical difficulty which is not to be surmounted.”5 Such change in
“Where the alleged change occurs not through revolutionary measures but through
the organic law relates to the
what has been called revision, these logical difficulties disappear in one aspect, but
become far more embarrassing in another. Where the alteration purports to be made
_______________ along the lines of a procedural method laid down in the constitution, there is a
5 “A written constitution is susceptible of change in two ways: by revolution, standard which the court can apply and, by so
which implies action not pursuant to any provision of the constitution itself; and by
revision, which implies action pursuant to some procedural provision in the 375
309/326 310
VOL. 50, MARCH 31, 1973 375 The non-judicial character of such a question has been
Javellana vs. The Executive Secretary recognized in American law. “From its earliest opinions this Court
has consistently recognized,” said Justice Frankfurter, in his
illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633,
horizontal distribution of powers.”6 It involves in essence a
722, 726, 727), “a class of controversies which do not lend
matter which “the sovereign has entrusted to the so-called
themselves to judicial standards and judicial remedies. To classify
the various instances as “political questions” is rather a form of
_______________ stating this conclusion than revealing of analysis ... The crux of the
doing, it can perceive judicially whether or not the change has followed the matter is that courts are not fit instruments of decision where what is
prescribed lines. If it has, there is no difficulty in pronouncing as a matter of law its essentially at stake is the composition of those large contests of
accomplishment. Only one exception is possible, namely, the ease where the policy traditionally fought out in non-judicial forums, by which
alteration purports at once to abolish the court or to depose its personnel. Then, governments and the actions of governments are made and unmade.”
although there would be a question of law to be decided, it may be wondered who The diversity of views contained in the opinions of the members
there is to decide it. Suppose, however, the mode of change has failed in some way to of this Court, in the cases at bar, cannot be a case on “right” or
conform to a directory provision of the amending clause of the constitution; is the “wrong” views of the Constitution. It is one of attitudes and values.
court to declare the attempt at alteration unsuccessful? It would seem as a matter of For there is scarcely any principle, authority or interpretation which
law that it must do so; and yet what is the situation if the proponents of the change has not been countered by the opposite. At bottom, it is the degree of
say, “It is true that this measure failed under the amending clause, but as a one’s faith — in the nation’s leadership and in the maturity of
revolutionary measure it was a success and we insist upon its recognition.” Clearly judgment of our people.
the members of the court are now more badly than ever entangled in the logical IN VIEW OF THE FOREGOING, the dismissal of these five
difficulties which attend a purported judicial pronouncement upon the achievement or cases, and the conclusion of this Court in its judgment of March
non-achievement of revolutionary change. For the temptation will be great to treat the question becomes wholly moot except for this consideration, that,
matter as a legal question. The times are peaceful. The changes probably do no affect when the judges as individuals or as a body of individuals come to
the tenure of many offices of any branch of the government. The popular inertia is decide which king or which constitution they will support and assert
likely to allow the court successfully to assume the question to be one of law. The to represent, it may often be good judgment for them to follow the
path of fallacy is not too strikingly fallacious to the uncritical observer. It may lead to lead of the men who as a practical matter are likely to be looked to
just results. The judges’ personal inclinations will be to show deference to the by the people as more representative of themselves and conversely
expression of popular sentiment which has been given. And yet, if they declare the are likely to be more directly in touch with popular sentiment. If,
change in force, they are truly making a personal declaration that they believe the however, the judges hold too strong views of their own to be able to
change to be the directly expressed will of the sovereign, which will they assert to be take this course, they may follow their own leads at their own
law, but the fact of existence of which will — and this is the real decision — is not hazard. No question of law is involved. (Political Questions, 38
ascertainable in the given case by any legal means. It is submitted that this is true, and Harvard Law Review [1924-25], pp. 305-309.)
that the conclusions offered in the discussion of revolutionary change are true, also,
whether the quantum of change involved be vast or almost negligible.
_______________
“The net result of the preceding discussion is this: that in almost the whole field of
6 & 7 Ibid., pp. 301, 305.
problems which the Duke of York’s case and the American constitutional amendment
cases present, the court as a court is precluded from passing upon the fact of change 377
by a logical difficulty which is not to be surmounted. It follows that there is no room
for considering whether the court ought graciously and deferentially to look to the
VOL. 50, MARCH 31, 1973 377
executive or legislative for a decision that a change has or has not taken place.
376

376 SUPREME COURT REPORTS ANNOTATED 31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
political departments of government or has reserved to be settled by APPENDIX TO OPINION

its own extra governmental action.”7 (G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
311/326 312
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY submit such proposed amendment or amendments to the people in
PROVIDING FOR AMENDMENT AND REVISION @ such manner, and at such time, and after such publication as may be
deemed expedient. Should more amendments than one be submitted
1. Alaska (1959) — Art. XIII. Amendment and Revision. at the same election they shall be so prepared and distinguished, by
Sec. 1. Amendments. Amendments to this constitution may be numbers or otherwise, that each can be voted on separately. If the
proposed by a two-thirds vote of each house of the legislature. The people shall approve and ratify such amendment or amendments, or
secretary of state shall prepare a ballot title and proposition any of them, by a majority of the qualified electors voting thereon
summarizing each proposed amendment, and shall place them on the such amendment or amendments shall become a part of this
ballot for the next statewide election. If a majority of the votes cast constitution.
on the proposition favor the amendment, it becomes effective thirty Sec. 2. Constitutional convention. Whenever two-thirds of the
days after the certification of the election returns by the secretary of members elected to each branch of the Legislature shall deem it
state. necessary to revise this Constitution, they shall recommend to the
Sec. 2. Convention. The legislature may call constitutional electors to vote at the next general for or against a Convention for
conventions at any time. that purpose, and if a majority of the electors voting at such election
Sec. 3. Call by referendum. If during any ten-year period a on the proposition for a Convention shall vote in favor thereof, the
constitutional convention has not been held, the secretary of state Legislature shall, at its next session, provide by law for calling the
shall place on the ballot for the next general election the question: same. The Convention shall consist of a number of delegates not to
“Shall there be a Constitutional Convention?” If a majority of the exceed that of both branches of the Legislature, who shall be chosen
votes cast on the question are in the negative, the question need not in the same manner, and have the same qualifications, as Members
be placed on the ballot until the end of the next ten-year period. If a of the Legislature. The delegates so elected shall meet within three
majority of the votes cast on the question are in the affirmative, months after their election at such place as
delegates to the convention shall be chosen at the next regular
379
statewide election, unless the legislature provides for the election of
the election delegates at a special election. The secretary of state
shall issue the call for the convention. Unless other provisions have VOL. 50, MARCH 31, 1973 379
been made by law, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of 1955,
378 the Legislature may direct. At a special election to be provided for

by law, the Constitution that may be agreed upon by such
378 SUPREME COURT REPORTS ANNOTATED Convention shall be submitted to the people for their ratification or
rejection, in such manner as the Convention may determine. The
Javellana vs. The Executive Secretary returns of such election shall, in such manner as the Convention
shall direct, be certified to the Executive of the State, who shall call
including, but not limited to, number of members, districts, election to his assistance the Controller, Treasurer, and Secretary of State,
and certification of delegates, and submission and ratification of and compare the returns so certified to him; and it shall be the duty
revisions and ordinances. x x x. of the Executive to declare, by his proclamation, such Constitution,
Sec. 4. Powers. Constitutional conventions shall have plenary as may have been ratified by a majority of all the votes cast at such
power to amend or revise the constitution, subject only to ratification special election, to be the Constitution of the State of California.
by the people. No call for a constitutional convention shall limit 3. Colorado (1876) — Art. XIX. Amendments.
these powers of the convention. Sec. 1. Constitutional convention; how called. The general
2. California (1879) — Art. XVIII. Amending and Revising the assembly may at any time be a vote of two-thirds of the members
Constitution. elected to each house, recommend to the electors of the state, to vote
Sec. 1. Constitutional amendments. Any amendment or at the next general election for or against a convention to revise,
amendments to this Constitution may be proposed in the Senate or alter and amend this constitution; and if a majority of those voting
Assembly, and if two-thirds of all the members elected to each of the on the question shall declare in favor of such convention, the general
houses shall vote in favor thereof, such proposed amendment or assembly shall, at the next session, provide for the calling thereof.
amendments shall be entered in their Journals, with the yeas and The number of members of the convention shall be twice that of the
nays taken thereon; and it shall be the duty of the Legislature to senate and they shall be elected in the same manner, at the same
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places, and in the same districts. The general assembly shall, in the Sec. 1. Proposal of constitutional amendments in general
act calling the convention, designate the day, hour and place of its assembly; procedure. Any amendment or amendments to this
meeting; fix the pay of its members and officers, and provide for the Constitution may be proposed in the Senate or House of
payment of the same, together with the necessary expenses of the Representatives; and if the same shall be agreed to by two-thirds of
convention. Before proceeding, the members shall take an oath to all the members elected to each House, such proposed amendment
support the constitution of the United States, and of the state of or amendments shall be entered on their journals, with the yeas and
Colorado, and to faithfully discharge their duties as members of the nays taken thereon, and the
convention. The qualifications of members shall be the same as of
381
members of the senate; and vacancies occurring shall be filled in the
manner provided for filling vacancies in the general assembly. Said
convention shall meet within three months after such election and VOL. 50, MARCH 31, 1973 381
prepare suchrevisions, alterations or amendments to the constitution
as may be deemed necessary; which shall be submitted to the
electors for their ratification or rejection at an election appointed by
the convention for that purpose, not less Secretary of State shall cause such proposed amendment or
amendments to be published three months before the next general
380 election in at least three newspapers in each County in which such
newspaper shall be published; and if in the General Assembly next
380 SUPREME COURT REPORTS ANNOTATED after the said election such proposed amendment or amendments
shall upon yea and nay vote be agreed to by two-thirds of all the
Javellana vs. The Executive Secretary members elected to each House, the same shall thereupon become
part of the Constitution.
than two nor more than six months after adjournment thereof; and Sec. 2. Constitutional conventions; procedure; compensation of
unless so submitted and approved by a majority of the electors delegates; quorum; powers and duties; vacancies. The General
voting at the election, no such revision, alteration or amendment Assembly by a two-thirds vote of all the members elected to each
shall take effect. House may from time to time provide for the submission to the
Sec. 2. Amendments to constitution; how adopted. Any qualified electors of the State at the general election next thereafter
amendment or amendments to this constitution may be proposed in the question, “Shall there be a Convention to revise the Constitution
either house of the general assembly, and if the same shall be voted and amend the same?”; and upon such submission, if a majority of
for by two-thirds of all the members elected to each house, such those voting on said question shall decide in favor of a Convention
proposed amendment or amendments, together with the ayes and for such purpose, the General Assembly at its next session shall
noes of each house hereon, shall be entered in full on their provide for the election of delegates to such convention at the next
respective journals; the proposed amendment or amendments shall general election. Such Convention shall be composed of forty-one
be published with the laws of that session of the general assembly, delegates, one of whom shall be chosen from each Representative
and the secretary of state shall also cause the said amendment or District by the qualified electors thereof, and two of whom shall be
amendments to be published in full in not more than one newspaper chosen from New Castle County, two from Kent County and two
of general circulation in each county, for four successive weeks from Sussex County by the qualified electors thereof respectively.
previous to the next general election for members of the general The delegates so chosen shall convene at the Capital of the State on
assembly; and at said election the said amendment or amendments the first Tuesday in September next after their election. Every
shall be submitted to the qualified electors of the state for their delegate shall receive for his services such compensation as shall be
approval or rejection, and such as are approved by a majority of provided by law. A majority of the Convention shall constitute a
those voting thereon shall become part of this constitution. quorum for the transaction of business. The Convention shall have
Provided, that if more than one amendment be submitted at any the power to appoint such officers, employees and assistants as it
general election, each of said amendments shall be voted upon may be deem necessary, and fix their compensation, and provide for
separately and votes thereon cast shall be separately counted the the printing of its documents, journals, debates and proceedings. The
same as though but one amendment was submitted. But the general Convention shall determine the rules of its proceedings, and be the
assembly shall have no power to propose amendments to more than judge of the elections, returns and qualifications of its members.
six articles of this constitution at the same session. Whenever there shall be a vacancy in the office of delegate from any
4. Delaware (1897) — Art. XVI. Amendments and Conventions. district or county by reason of failure to elect, ineligibility, death,
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resignation or otherwise, a writ of election to fill such vacancy shall counties for six weeks next preceding said election. The electors at
be issued by the Governor, and such vacancy shall be filled by the said election may vote for or against the revision in question. If a
majority of the electors so voting be in favor of revision, the
382
Legislature chosen at such election shall provide by law for a
Convention to revise the Constitution, said Convention to be held
382 SUPREME COURT REPORTS ANNOTATED within six months after the passage of such law. The Convention
shall consist of a number equal to the membership of the House of
Representatives, and shall be apportioned among the several
counties in the same manner as members of said House.
qualified electors of such district or county. 6. Idaho (1890) — Art. XIX. Amendments.
5. Florida (1887) — Art. XVII. Amendments. Sec. 1. How amendments may be proposed. Any amendment or
Sec. 1. Method of amending constitution. Either branch of the amendments to this Constitution may be proposed in either branch
Legislature, at any regular session, or at any special or extra- of the legislature, and if the same shall be agreed to by two-thirds of
ordinary session thereof called for such purpose either in the all the members of each of the two houses, voting separately, such
governor’s original call or any amendment thereof, may propose the proposed amendment or amendments shall, with the yeas and nays
revision or amendment of any portion or portions of this thereon, be entered on their journals, and it shall be the duty of the
Constitution. Any such revision or amendment may relate to one legislature to submit such amendment or amendments to the electors
subject or any number of subjects, but no amendment shall consist of the state at the next general election, and cause the same to be
of more than one revised article of the Constitution. published without delay for at least six consecutive weeks, prior to
If the proposed revision or amendment is agreed to by three-fifths said election, in not less than one newspaper of the general
of the members elected to each house, it shall be entered upon their circulation published in each county; and if a majority of the electors
respective journals with the yeas and nays and published in one shall ratify the same, such amendment or amendments shall become
newspaper in each county where a newspaper is published for two a part of this Constitution.
times, one publication to be made not earlier than ten weeks and the Sec. 3. Revision or amendments by convention. Whenever two-
other not later than six weeks, immediately preceding the election at thirds of the members elected to each branch of the legislature shall
which the same is to be voted upon, and thereupon submitted to the deem it necessary to call a convention to revise or amend this
electors of the State for approval or rejection at the next general Constitution, they shall recommend to the electors to vote at the next
election, provided, however, that such revision or amendment may general election, for or against a convention, and if a majority of all
be submitted for approval or rejection in a special election under the the electors voting at said election shall have voted for a convention,
conditions described in and in the manner provided by Section 3 of the legislature shall at the next session provide by law for calling the
Article XVII of the Constitution. If a majority of the electors voting same; and such convention shall consist of a number of members,
upon the amendment adopt such amendment the same shall become not less than double the number of the most numerous branch of the
a part of this Constitution. legislature.
Sec. 2. Method of revising constitution. If at any time the 7. Iowa (1857) — Art. X. Amendments to the Constitution.
Legislature, by a vote of two-thirds of all the members of both
Houses, shall determine that a revision of this Constitution is 384
necessary, such determination shall be entered upon their respective
Journals, with yea’s and nay’s thereon. Notice of said action shall be 384 SUPREME COURT REPORTS ANNOTATED
published weekly in one newspaper in every county in which a
newspaper is published, for three months preceding the next general Javellana vs. The Executive Secretary
election of Representatives, and in those countries where no
newspaper is published, notice shall be given by posting at the
several polling precincts in such Sec. 3. Convention. At the general election to be held in the year
one thousand eight hundred and seventy, and in each tenth year
383
thereafter, and also at such times as the General Assembly may, by
law, provide, the question, “Shall there be a Convention to revise the
VOL. 50, MARCH 31, 1973 383 Constitution, and amend the same?” shall be decided by the electors
qualified to vote for members of the General Assembly; and in case
a majority of the electors so qualified, voting at such election, for
317/326 318
and against such proposition, shall decide in favor of a Convention amendments by a majority of the qualified electors voting thereon
for such purpose, the General Assembly, at its next session, shall such constitution or amendments shall take effect on the first day of
provide by law for the election of delegates to such Convention. January following the approval thereof.
8. Michigan (1909) — Art. XVII. Amendments and Revision. 9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; proposal by legislature; Sec. 1. Amendments to constitution; majority vote of electors
submission to electors. Any amendment or amendments to this voting makes amendment valid. Whenever a majority of both houses
constitution may be proposed in the senate or house of of the legislature shall deem it necessary to alter or amend this
representatives. If the same shall be agreed to by 2/3 of the members Constitution, they may proposed such alterations or amendments,
elected to each house, such amendment or amendments shall be which proposed amendments shall be published with the laws which
entered on the journals, respectively, with the yeas and nays taken have been passed at the same session, and said amendments shall be
thereon; and the same shall be submitted to the electors at the next submitted to the people for their approval or rejection at any general
spring or autumn election thereafter, as the legislature shall direct; election, and if it shall appear, in a manner to be provided by law,
and, if a majority of the electors qualified to vote for members of the that a majority of all the electors voting at said election shall have
legislature voting thereon shall ratify and approve such amendment voted for and ratified such alterations or amendments, the same shall
or amendments, the same shall become part of the constitution. be valid to all intents and purposes as a part of this Constitution. If
Sec. 4. General revision; convention; procedure. At the Biennial two or more alterations or amendments shall be submitted at the
Spring Election to be held in the year 1961, in each sixteenth year same time, it shall be so regulated that the voters shall vote for or
thereafter and at such times as may be provided by law, the question against each separately.
of a General Revision of the Constitution shall be submitted to the
386
Electors qualified to vote for members of the Legislature. In case a
majority of the Electors voting on the question shall decide in favor
of a Convention for such purpose, at an Election to be held not later 386 SUPREME COURT REPORTS ANNOTATED
than four months after the Proposal shall have been certified as
approved, the Electors of each House of Representatives District as
then organized shall Elect One Delegate for each Electors of each
Senatorial District as then organized shall Elect One Delegate for
each State Senator to which the District Sec. 2. Revision of constitution. Whenever two-thirds of the
members elected to each branch of the legislature shall think it
385 necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for
VOL. 50, MARCH 31, 1973 385 members of the legislature, for or against a convention; and if a
majority of all the electors voting at said election shall have voted
Javellana vs. The Executive Secretary for a convention, the legislature shall, at their next session, provide
by law for calling the same. The convention shall consist of as many
is entitled. The Delegates so elected shall convene at the Capital members as the House of Representatives, who shall be chosen in
City on the First Tuesday in October next succeeding such election, the same manner, and shall meet within three months after their
and shall continue their sessions until the business of the convention election for the purpose aforesaid.
shall be completed. A majority of the delegates elected shall Sec. 3. Submission to people of revised constitution drafted at
constitute a quorum for the transaction of business. x x x No convention. Any convention called to revise this constitution shall
proposed constitution or amendment adopted by such convention submit any revision thereof by said convention to the people of the
shall be submitted to the electors for approval as hereinafter State of Minnesota for their approval or rejection at the next general
provided unless by the assent of a majority of all the delegates election held not less than 90 days after the adoption of such
elected to the convention, the yeas and nays being entered on the revision, and, if it shall appear in the manner provided by law that
journal. Any proposed constitution or amendments adopted by such three-fifths of all the electors voting on the question shall have voted
convention shall be submitted to the qualified electors in the manner for and ratified such revision, the same shall constitute a new
provided by such convention on the first Monday in April following constitution of the State of Minnesota. Without such submission and
the final adjournment of the convention; but, in case an interval of at ratification, said revision shall be of no force or effect. Section 9 of
least 90 days shall not intervene between such final adjournment and Article IV of the Constitution shall not apply to election to the
the date of such election. Upon the approval of such constitution or convention.
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10. Nevada (1864) — Art. 16. Amendments. 388

Sec. 1. Constitutional amendments; procedure. Any amendment
or amendments to this Constitution may be proposed in the Senate
or Assembly; and if the same shall be agreed to by a Majority of all
the members elected to each of the two houses, such proposed Javellana vs. The Executive Secretary
amendment or amendments shall be entered on their respective
journals, with the Yeas and Nays taken thereon, and referred to the qualified voters present as to the necessity of a revision; and a return
Legislature then next to be chosen, and shall be published for three of the number of votes for and against such necessity, shall be made
months next preceding the time of making such choice. And if in the by the clerk sealed up, and directed to the general court at their then
Legislature next chosen as aforesaid, such proposed amendment or next session; and if, it shall appear to the general court by such
amendments shall be agreed to by a majority of all the members return, that the sense of the people of the state has taken, and that, in
elected to each house, then it shall be the duty of the Legislature to the opinion of the majority of the qualified voters in the state,
submit such proposed amendment present and voting at said meetings, there is a necessity for a
revision of the constitution, it shall be the duty of the general court
387
to call a convention for that purpose, otherwise the general court
shall direct the sense of the people to be taken, and then proceed in
VOL. 50, MARCH 31, 1973 387 the manner before mentioned. The delegates to be chosen in the
Javellana vs. The Executive Secretary same manner, and proportioned, as the representatives to the general
court; provided that no alterations shall be made in this constitution,
before the same shall be laid before the towns and unincorporated
or amendments to the people, in such manner and at such time as the places, and approved by two thirds of the qualified voters present
Legislature shall prescribe; and if the people shall approve and ratify and voting on the subject.
such amendment or amendments by a majority of the electors 12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
qualified to vote for members of the Legislature voting thereon, such Sec. 1. Amendments proposed by legislature; a submission to
amendment or amendments shall become a part of the Constitution. vote. Any amendment or amendments to this Constitution may be
Sec. 2. Convention for revision of constitution; procedure. If at proposed in either branch of the Legislature, and if the same shall be
any time the Legislature by a vote of two-thirds of the Members agreed to by a majority of all the members elected to each of the two
elected to each house, shall determine that it is necessary to cause a houses, such proposed amendment or amendments shall, with yeas
revision of this entire Constitution they shall recommend to the and nays thereon, be entered in their journals and referred by the
electors at the next election for Members of the Legislature, to vote Secretary of State to the people for their approval or rejection, at the
for or against a convention, and if it shall appear that a majority of next regular general election, except when the Legislature, by a two-
the electors voting at such election, shall have voted in favor of thirds vote of each house, shall order a special election for that
calling a Convention, the Legislature shall, at its next session purpose. If a majority of all the electors voting at such election shall
provide by law for calling a Convention to be held within six months vote in favor of any amendment thereto, it shall thereby become a
after the passage of such law, and such Convention shall consist of a part of this Constitution.
number of Members not less that of both branches of the legislature. If two or more amendments are proposed they shall be submitted
In determining what is a majority of the electors voting such in such manner that electors may vote for or against them separately.
election, reference shall be had to the highest number of vote cast at No proposal for the amendment or alteration of this Constitution
such election for the candidates of any office or on any question. which is submitted to the voters shall embrace more than one
11. New Hampshire (1784) — general subject and the voters shall vote separately for or against
Art. 99. Revision of constitution provided for. It shall be the duty each proposal submitted; provided, however, that in the submission
of the selectmen, and assessors, of the several towns and places in of proposals for the amendment of this Constitution by articles,
this state, in warning the first annual meetings for the choice of which embrace one general subject, each proposed article shall be
senators, after the expiration of seven years from the adoption of this deemed a single
constitution, as amended, to insert expressly in the warrant this
purpose, among the others for the meeting, to wit, to take the sense 389
of the qualified voters on the subject of a revision of the constitution;
and, the meeting being warned accordingly, and not otherwise, the
VOL. 50, MARCH 31, 1973 389
moderator shall take the sense of the
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Javellana vs. The Executive Secretary Constitution, unless the law providing for such convention shall first
be approved by the people on a referendum vote at a regular general
proposals or proposition election. This article shall not be construed to impair the right of the
Sec. 2. Constitutional convention to propose amendments or new people to amend this Constitution by vote upon an initiative petition
constitution. No convention shall be called by the Legislature to therefor.
propose alterations, revisions, or amendments to this Constitution, Sec. 2. Method of revising constitution. (1) In addition to the
or to propose a new Constitution, unless the law providing for such power to amend this Constitution granted by section 1, Article IV,
convention shall first be approved by the people on a referendum and section 1 of this Article, a revision of all or part of this
vote at a regular or special election, and any amendments, Constitution may be proposed in either house of the Legislative
alterations, revisions, or new Constitution, proposed by such Assembly and, if the proposed revision is agreed to by at least two-
convention, shall be submitted to the electors of the State at a thirds of all the members of each house, the proposed revision shall,
general or special election and be approved by a majority of the with the yeas and nays thereon, be entered in their journals and
electors voting thereon, before the same shall become effective referred by the Secretary of State to the people for their approval or
Provided, That the question of such proposed convention shall be rejection, notwithstanding section 1, Article IV of this Constitution,
submitted to the people at least once in every twenty years. at the next regular state-wide primary election, except when the
13. Oregon (1859) — Art. XVII. Amendments and Revisions. Legislative Assembly orders a special election for that purpose. A
Sec. 1. Method of amending constitution. Any amendment or proposed revision may deal with more than one subject and shall be
amendments to this Constitution may be proposed in either branch voted upon as one question. The votes for and against the proposed
of the legislative assembly, and if the same shall be agreed to by a revision shall be canvassed by the Secretary of State in the presence
majority of all the members elected to each of the two houses, such of the Governor and, if it appears to the Governor that the majority
proposed amendment or amendments shall, with the yeas and nays of the votes cast in the election on the proposed revision are in favor
thereon, be entered in their journals and referred by the secretary of of the proposed revision, he shall, promptly following the canvass,
state to the people for their approval or rejection, at the next regular declare, by his proclamation, that the proposed revision has received
election, except when the legislative assembly shall order a special a majority of votes and has been adopted by the people as the
election for that purpose. If a majority of the electors voting on any Constitution of the State of Oregon, as the case may be. The revision
such amendment shall vote in favor thereof, it shall thereby become shall be in effect as the Constitution or as a part of this Constitution
a part of this Constitution. The votes for and against such from the date of such proclamation.
amendment, or amendments, severally, whether proposed by the 14. Utah (1896) — Art. 23. Amendments.
legislative assembly or by initiative petition, shall be canvassed by Sec. 1. Amendments; method of proposal and approval. Any
the secretary of state in the presence of the governor, and if it shall amendments to his Constitution may be proposed in either house of
appear to the governor that the majority of the votes cast at said the Legislature, and if two-thirds of all the members elected of the
election on said amendment, or amendments, severally, are cast in two houses, shall vote
favor thereof, it shall be his duty forthwith after such canvass, by his
391
proclamation, to declare the said amendment, or amendments,
severally, having received said majority of votes to have been
adopted by the people of Oregon as part of the Constitution thereof, VOL. 50, MARCH 31, 1973 391
and the same shall be in effect as a part of the Constitution from the Javellana vs. The Executive Secretary
date of such proclamation. When two or more amendments
390 in favor thereof, such proposed amendment or amendments shall be

entered on their respective journals with the yeas and nays taken
thereon; and the Legislature shall cause the same to be published in
at least one newspaper in every county of the State, where a
Javellana vs. The Executive Secretary newspaper is published, for two months immediately preceding the
next general election, at which time the said amendment or
shall be submitted in the manner aforesaid to the voters of this state amendments shall be submitted to the electors of the State, for their
at the same election, they shall be so submitted that each amendment approval or rejection, and if a majority of the electors voting thereon
shall be voted on separately. No convention shall be called to amend shall approve the same, such amendment or amendments shall
or propose amendments to this Constitution, or to propose a new become part of this Constitution. If two or more amendments are
323/326 324
proposed, they shall be so submitted as to enable the electors to vote _______________

on each of them separately. @ The inclusion in the Appendix of provisions for Amendment and Revision in
Sec. 2. Revision of the Constitution by convention. Whenever State Constitutions, adopted after 1935, is only to stress the fact that the distinction
two-thirds of the members, elected to each branch of the Legislature, between Amendment and Revision of Constitution, which existed at the time of the
shall deem it necessary to call a convention to revise or amend this adoption of the 1935 Constitution, has continued up to the present.
Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and, if a majority of all
the electors, voting at such election, shall vote for a convention. The
Legislature, at its next session, shall provide by law for calling the
same. The convention shall consist of not less than the number of
members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments. © Copyright 2019 Central Book Supply, Inc. All rights reserved.
Sec. 1. Procedure for amendments. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislature, and, if the same shall be agreed to by two-thirds of
all the members of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at
the next general election, in at least one newspaper of general
circulation, published in each county, and if a majority of the
electors shall ratify the same, such amendment or amendments shall
become a part of this constitution.
392


Sec. 2. How voted for. If two or more amendments are proposed,
they shall be submitted in such manner that the electors shall vote
for or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-
thirds of the members elected to each branch of the legislature shall
deem it necessary to call a convention to revise or amend this
constitution, they shall recommend to the electors to vote at the next
general election for or against a convention, and if a majority of all
the electors voting at such election shall have voted for a
convention, the legislature shall at the next session provide by a law
for calling the same; and such convention shall consist of a number
of members, not less than double that of the most numerous branch
of the legislature.
Sec. 4. New constitution. Any constitution adopted by such
convention shall have no validity until it has been submitted to and
adopted by the people.
——o0o——
325/326 326

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7/27/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 050 7/27/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 050

DEFENSE, THE HONORABLE BUDGET COMMISSIONER, and THE

Constitutional law; Doctrine of Separation of powers; Six Justices

No. L-36236. March 31, 1973.

34 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 35 36 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 37 38 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 39 40 SUPREME COURT REPORTS ANNOTATED

Javellana vs. The Executive Secretary

44 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 45 46 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 47 48 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 49 50 SUPREME COURT REPORTS ANNOTATED

VOL. 50, MARCH 31, 1973 51

Javellana vs. The Executive Secretary

Javellana vs. The Executive Secretary

55 Javellana vs. The Executive Secretary

law to perform duties relative to the conduct of elections on matters

recognizable and should be recognized as legitimately in force.’

72 SUPREME COURT REPORTS ANNOTATED

78 VOL. 50, MARCH 31, 1973 79

new Constitution, approved by the 1971 Constitutional Convention, _______________

17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et 83

whether Presidential Decree No. 73 calling a plebiscite to be held on

89 operation, the charter government continued to assert its authority

controlling, nor even persuasive in the present cases, having as

VOL. 50, MARCH 31, 1973 93

98 VOL. 50, MARCH 31, 1973 99

100 SUPREME COURT REPORTS ANNOTATED

55 L-33325 and L-34043, December 29, 1971.

of the popular will; and

113 114 SUPREME COURT REPORTS ANNOTATED

120 SUPREME COURT REPORTS ANNOTATED the court in Rice v. Palmer.74

_______________ plebiscite could be held thereafter in connection therewith, even if

make modiﬁcations in our instructions to all those managing and

VOL. 50, MARCH 31, 1973 129

128 Javellana vs. The Executive Secretary

proposed by the 1971 Constitutional Convention has been ratiﬁed by

Javellana vs. The Executive Secretary

VOL. 50, MARCH 31, 1973 147

151 BY THE PRESIDENT OF THE PHILIPPINES

VOL. 50, MARCH 31, 1973 157

165 to an indeﬁnite date, the reasons for the postponement being, as

completely lose the civil rights and freedom which we cherish...

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

WHEREAS, since their creation pursuant to Presidential Decree No. 86 178

186 republicanism as the basic governmental tenet, the institutional

VOL. 50, MARCH 31, 1973 187

189 having in mind facts of general knowledge which I have judicial

VOL. 50, MARCH 31, 1973 191

195 referring to the results announced in the proclamation itself. Giving

regular session. It must be assumed that being composed of

200 prevailing constitutional standards. We are not to assume that the

202 Constitution of 1935, they have so encased themselves within its

VOL. 50, MARCH 31, 1973 205

VOL. 50, MARCH 31, 1973 215 xx xx xx xx

218 SUPREME COURT REPORTS ANNOTATED

aforesaid branches of the Government in its proceedings, including

236 Assemblies for consultation on the 1973 Constitution or on whether

ARTICLE XV OF 1935 CONSTITUTION DOES NOT