G.R. No.

L-36142 March 31, 1973

JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF
FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL
CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND
LORENZO M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE
SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL,
THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL
COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE
COMMISSIONER OF CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,
SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADAKALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary;
JUAN PONCE ENRILE, in his capacity as Secretary of National
Defense; General ROMEO ESPINO, in his capacity as Chief of
Staff of the Armed Forces of the Philippines; TANCIO E.
CASTAEDA, in his capacity as Secretary General Services;
Senator GIL J. PUYAT, in his capacity as President of the Senate;
and Senator JOSE ROY, his capacity, as President Pro Tempore
of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as
President of the National Press Club of the
Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO
ASODISEN, JR., and RAUL M. GONZALEZ,petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET
COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and
Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V.
Mendoza and Solicitor Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered,
from which We quote:
On March 16, 1967, Congress of the Philippines passed Resolution No.
2, which was amended by Resolution No. 4 of said body, adopted on
June 17, 1969, calling a Convention to propose amendments to the
Constitution of the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on August 24, 1970,
pursuant to the provisions of which the election of delegates to said
Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1,
1971. While the Convention was in session on September 21, 1972, the
President issued Proclamation No. 1081 placing the entire Philippines
under Martial Law. On November 29, 1972, the Convention approved its
Proposed Constitution of the Republic of the Philippines. The next day,
November 30, 1972, the President of the Philippines issued Presidential
Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by
the 1971 Constitutional Convention, and appropriating funds therefor,"
as well as setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this
Court, Case G.R. No. L-35925, against the Commission on Elections, the
Treasurer of the Philippines and the Auditor General, to enjoin said
"respondents or their agents from implementing Presidential Decree No.

73, in any manner, until further orders of the Court," upon the
grounds, inter alia, that said Presidential Decree "has no force and
effect as law because the calling ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to
be used and the question to be answered by the voters, and the
appropriation of public funds for the purpose, are, by the Constitution,
lodged exclusively in Congress ...," and "there is no proper submission
to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being
no sufficient time to inform the people of the contents thereof."
Substantially identical actions were filed, on December 8, 1972, by
Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L35929) on December 11, 1972, by Gerardo Roxas, et al., against the
Commission on Elections, the Director of Printing, the National Treasurer
and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro
against the Commission on Elections and the Treasurer of the
Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoez, et al.
against the National Treasurer and the Commission on Elections (Case
G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against
the Commission on Elections, the Treasurer of the Philippines, the
Auditor General and the Director of Printing (Case G.R. No. L-35948)
and by Jose W. Diokno and Benigno S. Aquino against the Commission
on Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto
Jimenez against the Commission on Elections, the Auditor General, the
Treasurer of the Philippines and the Director of the Bureau of Printing
(Case G.R. No. L-35961), and by Raul M. Gonzales against the
Commission on Elections, the Budget Commissioner, the National
Treasurer and the Auditor General (Case G.R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on
Elections, the Secretary of Education, the National Treasurer and the
Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents
were required to file their answers "not later than 12:00 (o'clock) noon
of Saturday, December 16, 1972." Said cases were, also, set for hearing
and partly heard on Monday, December 18, 1972, at 9:30 a.m. The
hearing was continued on December 19, 1972. By agreement of the
parties, the aforementioned last case G.R. No. L-35979 was, also,
heard, jointly with the others, on December 19, 1972. At the conclusion
of the hearing, on that date, the parties in all of the aforementioned
cases were given a short period of time within which "to submit their
notes on the points they desire to stress." Said notes were filed on
different dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an
order temporarily suspending the effects of Proclamation No. 1081, for
the purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the
plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite
scheduled to be held on January 15, 1978, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the
meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open
debate on the proposed Constitution."
In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then, again, Congress was, pursuant to
the 1935 Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections the Court deemed it more imperative to
defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as
soon as possible, preferably not later than January 15, 1973." It was
alleged in said motion, inter alia:
"6. That the President subsequently announced the issuance of
Presidential Decree No. 86 organizing the so-called Citizens Assemblies,
to be consulted on certain public questions [Bulletin Today, January 1,
1973];
"7. That thereafter it was later announced that "the Assemblies will be
asked if they favor or oppose
[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution and
when (the tentative new dates given following the postponement of the
plebiscite from the original date of January 15 are February 19 and
March 5);
[4] The opening of the regular session slated on January 22 in
accordance with the existing Constitution despite Martial Law." [Bulletin
Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of
the questions to be asked to the Citizens Assemblies:
[1] Do you approve of the New Society?

[2] Do you approve of the reform measures under martial law?

[3] Do you think that Congress should meet again in regular session?
[4] How soon would you like the plebiscite on the new Constitution to
be held? [Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was announced
to take place during the period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question
would be added to the four (4) question previously announced, and that
the forms of the question would be as follows:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question.]
"11. That on January 11, 1973, it was reported that six (6) more
questions would be submitted to the so-called Citizens Assemblies:
[1] Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the new Constitution?
[4] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
[5] If the elections would not be held, when do you want the next
elections to be called?
[6] Do you want martial law to continue? [Bulletin Today, January 11,
1973; emphasis supplied]
"12. That according to reports, the returns with respect to the six (6)
additional questions quoted above will be on a form similar or identical
to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which we
marked as Annex "A-1", and which reads:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is
to be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for reforms
to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to
exercise his powers with more authority. We want him to be strong and
firm so that he can accomplish all his reform programs and establish
normalcy in the country. If all other measures fail, we want President
Marcos to declare a revolutionary government along the lines of the
new Constitution without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3,"
which reads:
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the plebiscite
on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous
possibilities.
14. That, in the meantime, speaking on television and over the radio,
on January 7, 1973, the President announced that the limited freedom
of debate on the proposed Constitution was being withdrawn and that
the proclamation of martial law and the orders and decrees issued
thereunder would thenceforth strictly be enforced [Daily Express,
January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the
question added in the last list of questions to be asked to the Citizens
Assemblies, namely:
Do you approve of the New Constitution?
in relation to the question following it:
Do you still want a plebiscite to be called to ratify the new
Constitution?"
would be an attempt to by-pass and short-circuit this Honorable Court
before which the question of the validity of the plebiscite on the
proposed Constitution is now pending;
"16. That petitioners have reason to fear, and therefore allege, that if
an affirmative answer to the two questions just referred to will be
reported then this Honorable Court and the entire nation will be
confronted with a fait accompli which has been attained in a highly
unconstitutional and undemocratic manner;

"17. That the fait accompli would consist in the supposed expression of
the people approving the proposed Constitution;
"18. That, if such event would happen, then the case before this
Honorable Court could, to all intents and purposes, become moot
because, petitioners fear, and they therefore allege, that on the basis of
such supposed expression of the will of the people through the Citizens
Assemblies, it would be announced that the proposed Constitution, with
all its defects, both congenital and otherwise, has been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis
and there is likelihood of confusion if not chaos, because then, the
people and their officials will not know which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if this
Honorable Court will immediately decide and announce its decision on
the present petition;
"21. That with the withdrawal by the President of the limited freedom of
discussion on the proposed Constitution which was given to the people
pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of
respondents to petitioners' prayer at the plebiscite be prohibited has
now collapsed and that a free plebiscite can no longer be held."
At about the same time, a similar prayer was made in a "manifestation"
filed by the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission
on Elections, et al.," and L-35942, "Sedfrey A. Ordoez, et al. v. The
National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court issued
a resolution requiring the respondents in said three (3) cases to
comment on said "urgent motion" and "manifestation," "not later than
Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973,
shortly before noon, the petitioners in said Case G.R. No. L-35948 riled
a "supplemental motion for issuance of restraining order and inclusion
of additional respondents," praying
"... that a restraining order be issued enjoining and restraining
respondent Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roo; the Department
of Agrarian Reforms and its head, Secretary Conrado Estrella; the
National Ratification Coordinating Committee and its Chairman,
Guillermo de Vega; their deputies, subordinates and substitutes, and all
other officials and persons who may be assigned such task, from
collecting, certifying, and announcing and reporting to the President or
other officials concerned, the so-called Citizens' Assemblies referendum
results allegedly obtained when they were supposed to have met during
the period comprised between January 10 and January 15, 1973, on the
two questions quoted in paragraph 1 of this Supplemental Urgent
Motion."
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in order to ask
further that this Honorable Court issue a restraining order enjoining
herein respondents, particularly respondent Commission on Elections as
well as the Department of Local Governments and its head, Secretary
Jose Roo; the Department of Agrarian Reforms and its head, Secretary
Conrado Estrella; the National Ratification Coordinating Committee and
its Chairman, Guillermo de Vega; and their deputies, subordinates
and/or substitutes, from collecting, certifying, announcing and reporting
to the President the supposed Citizens' Assemblies referendum results
allegedly obtained when they were supposed to have met during the
period between January 10 and January 15, 1973, particularly on the
two questions quoted in paragraph 1 of this Supplemental Urgent
Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are
illegal, null and void particularly insofar as such proceedings are being
made the basis of a supposed consensus for the ratification of the
proposed Constitution because:
[a] The elections contemplated in the Constitution, Article XV, at which
the proposed constitutional amendments are to be submitted for
ratification, are elections at which only qualified and duly registered
voters are permitted to vote, whereas, the so called Citizens'
Assemblies were participated in by persons 15 years of age and older,
regardless of qualifications or lack thereof, as prescribed in the Election
Code;
[b] Elections or plebiscites for the ratification of constitutional
amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free, orderly and
honest elections, and such provisions are a minimum requirement for
elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack of material time, more
than a handful of the so called Citizens' Assemblies have been actually
formed, because the mechanics of their organization were still being
discussed a day or so before the day they were supposed to begin
functioning:
"Provincial governors and city and municipal mayors had been meeting
with barrio captains and community leaders since last Monday [January
8, 1973) to thresh out the mechanics in the formation of the Citizens
Assemblies and the topics for discussion." [Bulletin Today, January 10,
1973]
"It should be recalled that the Citizens' Assemblies were ordered formed
only at the beginning of the year [Daily Express, January 1, 1973], and

considering the lack of experience of the local organizers of said

assemblies, as well as the absence of sufficient guidelines for
organization, it is too much to believe that such assemblies could be
organized at such a short notice.
"5. That for lack of material time, the appropriate amended petition to
include the additional officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion could not be
completed because, as noted in the Urgent Motion of January 12, 1973,
the submission of the proposed Constitution to the Citizens' Assemblies
was not made known to the public until January 11, 1973. But be that
as it may, the said additional officials and agencies may be properly
included in the petition at bar because:
[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to
submit the proposed Constitution to a plebiscite by the so-called
Citizens' Assemblies, is properly in issue in this case, and those who
enforce, implement, or carry out the said Presidential Decree No. 86.
and the instructions incidental thereto clearly fall within the scope of
this petition;
[b] In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people for
their ratification or rejection the 1972 Draft or proposed Constitution
approved by the Constitutional Convention on November 30, 1972";
and finally,
[c] Petitioners prayed for such other relief which may be just and
equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion, can lawfully be reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore,
that the Commission on Elections has under our laws the power, among
others, of:
(a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials required by law
to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ..."
[Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the
Commission on Elections, together with the officials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent Motion
are restrained or enjoined from collecting, certifying, reporting or
announcing to the President the results of the alleged voting of the socalled Citizens' Assemblies, irreparable damage will be caused to the
Republic of the Philippines, the Filipino people, the cause of freedom an
democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the questions mentioned
in paragraph 1 hereof shall have been announced, a conflict will arise
between those who maintain that the 1935 Constitution is still in force,
on the one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious attack
because the advocates of the theory that the proposed Constitution has
been ratified by reason of the announcement of the results of the
proceedings of the so-called Citizens' Assemblies will argue that,
General Order No. 3, which shall also be deemed ratified pursuant to
the Transitory Provisions of the proposed Constitution, has placed
Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of
this Honorable Court."
On the same date January 15, 1973 the Court passed a resolution
requiring the respondents in said case G.R. No. L-35948 to file "file an
answer to the said motion not later than 4 P.M., Tuesday, January 16,
1973," and setting the motion for hearing "on January 17, 1973, at 9:30
a.m." While the case was being heard, on the date last mentioned, at
noontime, the Secretary of Justice called on the writer of this opinion
and said that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation No.
1102, which had just been signed by the President. Thereupon, the
writer returned to the Session Hall and announced to the Court, the
parties in G.R. No. L-35948 inasmuch as the hearing in connection
therewith was still going on and the public there present that the
President had, according to information conveyed by the Secretary of
Justice, signed said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is of the
following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in

municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the Philippines and who
are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to
broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizenry to express their views on
important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before the Citizens Assemblies or Barangays: Do
you approve of the New Constitution? Do you still want a plebiscite to
be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty-one (14,976,561) members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; while on the question as to
whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was
no need for a plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninetyfive (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelming majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the
seal of the Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
"President of the Philippines
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After
admitting some of the allegations made in the petition in L-35948 and
denying the other allegations thereof, respondents therein alleged in
their answer thereto, by way affirmative defenses: 1) that the
"questions raised" in said petition "are political in character"; 2) that
"the Constitutional Convention acted freely and had plenary authority
to propose not only amendments but a Constitution which would
supersede the present Constitution"; 3) that "the President's call for a
plebiscite and the appropriation of funds for this purpose are valid"; 4)
that "there is not an improper submission" and "there can be a
plebiscite under Martial Law"; and 5) that the "argument that the
Proposed Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is
"not relevant and ... without merit." Identical defenses were set up in
the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the
afternoon of that date, the Members of the Court have been
deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each
Member write his own views thereon and that thereafter the Chief
Justice should state the result or the votes thus cast on the points in
issue. Hence, the individual views of my brethren in the Court are set
forth in the opinions attached hereto, except that, instead of writing
their separate opinions, some Members have preferred to merely
concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues
involved therein, after which he recapitulated the views of the Members
of the Court, as follows:
1. There is unanimity on the justiciable nature of the issue on the
legality of Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal, Castro,
Fernando, Teehankee, Esguerra and myself, or six (6) Members of the
Court, are of the opinion that the issue has become moot and
academic, whereas Justices Barredo, Makasiar and Antonio voted to
uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the
proposed Constitution or to incorporate therein the provisions contested
by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee
and Esguerra opine that the issue has become moot and academic.
Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to
uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971

Constitutional Convention had authority to continue in the performance
of its functions despite the proclamation of Martial Law. In effect,
Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law affected the
proper submission of the proposed Constitution to a plebiscite, insofar
as the freedom essential therefor is concerned, Justice Fernando is of
the opinion that there is a repugnancy between the election
contemplated under Art. XV of the 1935 Constitution and the existence
of Martial Law, and would, therefore, grant the petitions were they not
moot and academic. Justices Barredo, Antonio and Esguerra are of the
opinion that issue involves questions of fact which cannot be
predetermined, and that Martial Law per se does not necessarily
preclude the factual possibility of adequate freedom, for the purposes
contemplated.
6. On Presidential Proclamation No. 1102, the following views were
expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra
and myself are of the opinion that the question of validity of said
Proclamation has not been properly raised before the Court, which,
accordingly, should not pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality of
Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the "purported ratification of the
Proposed Constitution ... based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such
unfortunate drawback notwithstanding, "considering all other related
relevant circumstances, ... the new Constitution is legally recognizable
and should be recognized as legitimately in force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed
Constitution has not been ratified in accordance with Article XV of the
1935 Constitution, and that, accordingly, it has no force and effect
whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on the
issue whether the Proposed Constitution has been ratified by the people
or not, "in the absence of any judicially discoverable and manageable
standards," since the issue "poses a question of fact.
7. On the question whether or not these cases should be dismissed,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra
voted in the affirmative, for the reasons set forth in their respective
opinions. Justices Fernando, Teehankee, and the writer similarly voted,
except as regards Case No. L-35948 as to which they voted to grant to
the petitioners therein a reasonable period of time within which to file
appropriate pleadings should they wish to contest the legality of
Presidential Proclamation No. 1102. Justice Zaldivar favors the granting
of said period to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in effect, that the Court
should go farther and decide on the merits everyone of the cases under
consideration.
Accordingly, the Court acting in conformity with the position taken by
six (6) of its members, 1 with three (3) members dissenting, 2 with
respect to G.R. No. L-35948, only and another member 3 dissenting, as
regards all of the cases dismissed the same, without special
pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No.
L-36142 against the Executive Secretary and the Secretaries of National
Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" referring
to that of 1935. The petition therein, filed by Josue Javellana, as a
"Filipino citizen, and a qualified and registered voter" and as "a class
suit, for himself, and in behalf of all citizens and voters similarly
situated," was amended on or about January 24, 1973. After reciting in
substance the facts set forth in the decision in the plebiscite cases,
Javellana alleged that the President had announced "the immediate
implementation of the New Constitution, thru his Cabinet, respondents
including," and that the latter "are acting without, or in excess of
jurisdiction in implementing the said proposed Constitution" upon the
ground: "that the President, as Commander-in-Chief of the Armed
Forces of the Philippines, is without authority to create the Citizens
Assemblies"; that the same "are without power to approve the proposed
Constitution ..."; "that the President is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and
"that the election held to ratify the proposed Constitution was not a free
election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio
Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de
Peralta and Lorenzo M. Taada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the
Auditor General, the Budget Commissioner, the Chairman of the
Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil
Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public Information, the Auditor
General, the Budget Commissioner and the National Treasurer 5 and on
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr.,
Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive

Secretary, the Secretary of National Defense, the Budget Commissioner

and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito
R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva EstradaKalaw, the first as "duly elected Senator and Minority Floor Leader of
the Senate," and others as "duly elected members" thereof, filed Case
G.R. No. L-36165, against the Executive Secretary, the Secretary
National Defense, the Chief of Staff of the Armed Forces of the
Philippines, the Secretary of General Services, the President and the
President Pro Tempore of the Senate. In their petition as amended on
January 26, 1973 petitioners Gerardo Roxas, et al. allege, inter alia,
that the term of office of three of the aforementioned
petitioners 8 would expire on December 31, 1975, and that of the
others 9 on December 31, 1977; that pursuant to our 1935 Constitution,
"which is still in force Congress of the Philippines "must convene for its
8th Session on Monday, January 22, 1973, at 10:00 A.M., which is
regular customary hour of its opening session"; that "on said day, from
10:00 A.M. up to the afternoon," said petitioner "along with their other
colleagues, were unlawfully prevented from using the Senate Session
Hall, the same having been closed by the authorities in physical
possession and control the Legislative Building"; that "(a)t about 5:00 to
6:00 P.M. the said day, the premises of the entire Legislative Building
were ordered cleared by the same authorities, and no one was allowed
to enter and have access to said premises"; that "(r)espondent Senate
President Gil J. Puyat and, in his absence, respondent President Pro
Tempore Jose Roy we asked by petitioning Senators to perform their
duties under the law and the Rules of the Senate, but unlawfully
refrained and continue to refrain from doing so"; that the petitioners
ready and willing to perform their duties as duly elected members of
the Senate of the Philippines," but respondent Secretary of National
Defense, Executive Secretary and Chief of Staff, "through their agents
and representatives, are preventing petitioners from performing their
duties as duly elected Senators of the Philippines"; that "the Senate
premise in the Congress of the Philippines Building ... are occupied by
and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per
"official reports, the Department of General Services ... is now the
civilian agency in custody of the premises of the Legislative Building";
that respondents "have unlawfully excluded and prevented, and
continue to so exclude and prevent" the petitioners "from the
performance of their sworn duties, invoking the alleged approval of the
1972 (1973) Constitution of the Philippines by action of the so-called
Citizens' Assemblies on January 10, 1973 to January 15, 1973, as stated
in and by virtue of Proclamation No. 1102 signed and issued by the
President of the Philippines"; that "the alleged creation of the Citizens'
Assemblies as instrumentalities for the ratification of the Constitution of
the Republic of the Philippines" is inherently illegal and palpably
unconstitutional; that respondents Senate President and Senate
President Pro Tempore "have unlawfully refrained and continue to
refrain from and/or unlawfully neglected and continue to neglect the
performance of their duties and functions as such officers under the law
and the Rules of the Senate" quoted in the petition; that because of
events supervening the institution of the plebiscite cases, to which
reference has been made in the preceding pages, the Supreme Court
dismissed said cases on January 22, 1973, by a majority vote, upon the
ground that the petitions therein had become moot and academic; that
the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked
the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their
"agents, representatives and subordinates ...have excluded the
petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from
convening the Senate for its 8th session, assuming general jurisdiction
over the Session Hall and the premises of the Senate and ... continue
such inaction up to this time and ... a writ of mandamus is warranted in
order to compel them to comply with the duties and functions
specifically enjoined by law"; and that "against the above mentioned
unlawful acts of the respondents, the petitioners have no appeal nor
other speedy and adequate remedy in the ordinary course of law except
by invoking the equitable remedies of mandamus and prohibition with
the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that,
"pending hearing on the merits, a writ of preliminary mandatory
injunction be issued ordering respondents Executive Secretary, the
Secretary of National Defense, the Chief of Staff of the Armed Forces of
the Philippines, and the ... Secretary of General Service, as well as all
their agents, representatives and subordinates to vacate the premises
of the Senate of the Philippines and to deliver physical possession of
the same to the President of the Senate or his authorized
representative"; and that hearing, judgment be rendered declaring null
and Proclamation No. 1102 ... and any order, decree, proclamation
having the same import and objective, issuing writs of prohibition
and mandamus, as prayed for against above-mentioned respondents,
and making the writ injunction permanent; and that a writ
of mandamus be issued against the respondents Gil J. Puyat and Jose
Roy directing them to comply with their duties and functions as
President and President Pro Tempore, respectively, of the Senate of
Philippines, as provided by law and the Rules of the Senate."

Required to comment on the above-mentioned petitions and/or

amended petitions, respondents filed, with the leave Court first had and
obtained, a consolidated comment on said petitions and/or amended
petitions, alleging that the same ought to have been dismissed
outright; controverting petitioners' allegations concerning the alleged
lack impairment of the freedom of the 1971 Constitution Convention to
approve the proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the alleged lack of
authority of the President to create and establish Citizens' Assemblies
"for the purpose submitting to them the matter of ratification of the
new Constitution," the alleged "improper or inadequate submiss of the
proposed constitution," the "procedure for ratification adopted ...
through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is
without jurisdiction to act on these petitions"; 2) the questions raised
therein are "political in character and therefore nonjusticiable"; 3)
"there substantial compliance with Article XV of the 1 Constitution"; 4)
"(t)he Constitution was properly submitted the people in a free, orderly
and honest election; 5) "Proclamation No. 1102, certifying the results of
the election, is conclusive upon the courts"; and 6) "(t)he amending
process outlined in Article XV of the 1935 Constitution is not exclusive
of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said
case "is a highly political question which, under the circumstances,
this ...Court would not be in a position to act upon judicially," and that,
in view of the opinions expressed by three members of this Court in its
decision in the plebiscite cases, in effect upholding the validity of
Proclamation No. 1102, "further proceedings in this case may only be
an academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring
respondents in L-36236 to comment on the petition therein not later
than Saturday, February 10, 1973, and setting the case for hearing on
February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973,
this Court resolved to consider the comments of the respondents in
cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss
the petitions therein, and to set said cases for hearing on the same
date and time as L-36236. On that date, the parties in G.R. No. L36283 10 agreed that the same be, likewise, heard, as it was, in fact,
heard jointly with the aforementioned cases G.R. Nos. L-36142, L36164, L-36165 and L-36236. The hearing, which began on February
12, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, but, also, on February 13, 14, 15 and 16, morning and
afternoon, after which the parties were granted up to February 24,
1973, noon, within which to submit their notes of oral arguments and
additional arguments, as well as the documents required of them or
whose presentation was reserved by them. The same resolution
granted the parties until March 1, 1973, to reply to the notes filed by
their respective opponents. Counsel for the petitioners in G.R. Nos. L36164 and L-36165 filed their aforementioned notes on February 24,
1973, on which date the Solicitor General sought an extension of time
up to March 3, 1973, within which to file his notes, which was granted,
with the understanding that said notes shall include his reply to the
notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165.
Counsel for the petitioners, likewise, moved and were granted an
extension of time, to expire on March 10, 1973, within which to file, as
they did, their notes in reply to those submitted by the Solicitor General
on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a
"Manifestation a Supplemental Rejoinder," whereas the Office of the
Solicitor General submitted in all these cases a "Rejoinder Petitioners'
Replies."
After deliberating on these cases, the members of the Court agreed
that each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the issues
before the Court. After the exposition his aforesaid opinion, the writer
will make, concurrently with his colleagues in the Court, a resume of
summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat
and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is
predicated upon the fact that, in Our decision in the plebiscite cases,
Mr. Justice Barredo had expressed the view that the 1935 Constitution
had "pro tanto passed into history" and "been legitimately supplanted
by the Constitution now in force by virtue of Proclamation No. 1102 ...";
that Mr. Justice Antonio did not feel "that this Court competent to act" in
said cases "in the absence of any judicially discoverable and
manageable standards" and because "the access to relevant
information is insufficient to assure the correct determination of the
issue," apart from the circumstance that "the new constitution has been
promulgated and great interests have already arisen under it" and that
the political organ of the Government has recognized its provisions;
whereas, Mr. Justice Esguerra had postulated that "(w)ithout any
competent evidence ... about the circumstances attending the holding"
of the "referendum or plebiscite" thru the Citizens' Assemblies, he
"cannot say that it was not lawfully held" and that, accordingly,
he assumed "that what the proclamation (No. 1102) says on its face is

true and until overcome by satisfactory evidence" he could not

"subscribe to the claim that such plebiscite was not held accordingly";
and that he accepted "as a fait accompli that the Constitution adopted
(by the 1971 Constitutional Convention) on November 30, 1972, has
been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that,
under these circumstances, "it seems remote or improbable that the
necessary eight (8) votes under the 1935 Constitution, and much less
the ten (10) votes required by the 1972 (1973) Constitution, can be
obtained for the relief sought in the Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo
announced publicly, in open court, during the hearing of these cases,
that he was and is willing to be convinced that his aforementioned
opinion in the plebiscite cases should be reconsidered and changed. In
effect, he thus declared that he had an open mind in connection with
the cases at bar, and that in deciding the same he would not
necessarily adhere to said opinion if the petitioners herein succeeded in
convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently
assumed that, under the 1935 Constitution, eight (8) votes are
necessary to declare invalid the contested Proclamation No. 1102. I do
not believe that this assumption is borne out by any provision of said
Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard
and decided by the Supreme Court in banc, and no treaty or law may
be declared unconstitutional without the concurrence of two thirds of all
the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the
Members of the Supreme Court is required only to declare "treaty or
law" unconstitutional. Construing said provision, in a resolution dated
September 16, 1949, then Chief Justice Moran, voicing
the unanimous view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act
requiring the vote of eight Justices to nullify a rule or regulation or an
executive order issued by the President. It is very significant that in the
previous drafts of section 10, Article VIII of the Constitution, "executive
order" and "regulation"were included among those that required for
their nullification the vote of two-thirds of all the members of the Court.
But "executive order" and "regulation" were later deleted from the final
draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495,
496), and thus a mere majority of six members of this Court is enough
to nullify them. 11
The distinction is not without reasonable foundation. The two thirds
vote (eight [8] votes) requirement, indeed, was made to apply only to
treaty and law, because, in these cases, the participation of the two
other departments of the government the Executive and the
Legislative is present, which circumstance is absent in the case of
rules, regulations and executive orders. Indeed, a law (statute) passed
by Congress is subject to the approval or veto of the President, whose
disapproval cannot be overridden except by the vote of two-thirds (2/3)
of all members of each House of Congress. 12 A treaty is entered into by
the President with the concurrence of the Senate, 13which is not
required in the case of rules, regulations or executive orders which are
exclusive acts of the President. Hence, to nullify the same, a lesser
number of votes is necessary in the Supreme Court than that required
to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders
issued by the President, the dictum applies with equal force to
executive proclamation, like said Proclamation No. 1102, inasmuch as
the authority to issue the same is governed by section 63 of the
Revised Administrative Code, which provides:
Administrative acts and commands of the (Governor-General) President
of the Philippines touching the organization or mode of operation of the
Government or rearranging or readjusting any of the districts, divisions,
parts or ports of the (Philippine Islands) Philippines and all acts and
commands governing the general performance of duties by public
employees or disposing of issues of general concern shall be made
effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or
orders are to have or cease to (have) effect and any information
concerning matters of public moment determined by law, resolution, or
executive orders, may be promulgated in an executive
proclamation, with all the force of an executive order. 14
In fact, while executive order embody administrative acts or commands
of the President, executive proclamations are mainly informative and
declaratory in character, and so does counsel for respondents Gil J.
Puyat and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no
more than "the force of an executive order," so that, for the Supreme
Court to declare such proclamation unconstitutional, under the 1935
Constitution, the same number of votes needed to invalidate an
executive order, rule or regulation namely, six (6) votes would
suffice.
As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in force, it is
obvious that such question depends upon whether or not the said new
Constitution has been ratified in accordance with the requirements of
the 1935 Constitution, upon the authority of which said Constitutional

Convention was called and approved the proposed Constitution. It is

well settled that the matter of ratification of an amendment to the
Constitution should be settled by applying the provisions of the
Constitution in force at the time of the alleged ratification, or the old
Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and
this is his main defense. In support thereof, he alleges that "petitioners
would have this Court declare as invalid the New Constitution of the
Republic" from which he claims "this Court now derives its
authority"; that "nearly 15 million of our body politic from the age of 15
years have mandated this Constitution to be the New Constitution and
the prospect of unsettling acts done in reliance on it caution against
interposition of the power of judicial review"; that "in the case of the
New Constitution, the government has been recognized in accordance
with the New Constitution"; that "the country's foreign relations are now
being conducted in accordance with the new charter"; that "foreign
governments have taken note of it"; that the "plebiscite cases" are "not
precedents for holding questions regarding proposal and ratification
justiciable"; and that "to abstain from judgment on the ultimate issue of
constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to
"declare" the new Constitution invalid. What petitioners dispute is the
theory that it has been validly ratified by the people, especially that
they have done so in accordance with Article XV of the 1935
Constitution. The petitioners maintain that the conclusion reached by
the Chief Executive in the dispositive portion of Proclamation No. 1102
is not borne out by the whereases preceding the same, as the
predicates from which said conclusion was drawn; that the plebiscite or
"election" required in said Article XV has not been held; that the Chief
Executive has no authority, under the 1935 Constitution, to
dispensewith said election or plebiscite; that the proceedings before the
Citizens' Assemblies did not constitute and may not be considered as
such plebiscite; that the facts of record abundantly show that the
aforementioned Assemblies could not have been held throughout the
Philippines from January 10 to January 15, 1973; and that, in any event,
the proceedings in said Assemblies are null and void as an alleged
ratification of the new Constitution proposed by the 1971 Constitutional
Convention, not only because of the circumstances under which said
Assemblies had been created and held, but, also, because persons
disqualified to vote under Article V of the Constitution were allowed to
participate therein, because the provisions of our Election Code were
not observed in said Assemblies, because the same were not held
under the supervision of the Commission on Elections, in violation of
section 2 of Article X of the 1935 Constitution, and because the
existence of Martial Law and General Order No. 20, withdrawing or
suspending the limited freedom to discuss the merits and demerits of
said proposed Constitution, impaired the people's freedom in voting
thereon, particularly a viva voce, as it was done in many instances, as
well as their ability to have a reasonable knowledge of the contents of
the document on which they were allegedly called upon to express their
views.
Referring now more specifically to the issue on whether the new
Constitution proposed by the 1971 Constitutional Convention has been
ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that
the answer must be in the negative. Indeed, such is the position taken
by this Court, 17 in an endless line of decisions, too long to leave any
room for possible doubt that said issue is inherently and essentially
justiciable. Such, also, has been the consistent position of the courts of
the United States of America, whose decisions have a persuasive effect
in this jurisdiction, our constitutional system in the 1935 Constitution
being patterned after that of the United States. Besides, no plausible
reason has, to my mind, been advanced to warrant a departure from
said position, consistently with the form of government established
under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory
of the respondents therein that the question whether Presidential
Decree No. 73 calling a plebiscite to be held on January 15, 1973, for
the ratification or rejection of the proposed new Constitution, was valid
or not, was not a proper subject of judicial inquiry because, they
claimed, it partook of a political nature, and We unanimously declared
that the issue was a justiciable one. With identical unanimity, We
overruled the respondents' contention in the 1971 habeas
corpus cases, 19 questioning Our authority to determine the
constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view taken by this Court
in Barcelona v. Baker 20 and Montenegro v. Castaeda, 21insofar as it
adhered to the former case, which view We, accordingly, abandoned
and refused to apply. For the same reason, We did not apply and
expressly modified, in Gonzales v. Commission on Elections, 22 the
political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence,
respondents herein urge Us to reconsider the action thus taken by the
Court and to revert to and follow the views expressed in Barcelon v.
Baker and Mabanag v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the
same as those given in support of the political-question theory

advanced in said habeas corpus and plebiscite cases, which were

carefully considered by this Court and found by it to be legally unsound
and constitutionally untenable. As a consequence, Our decision in the
aforementioned habeas corpus cases partakes of the nature and effect
of a stare decisis, which gained added weight by its virtual reiteration in
the plebiscite cases.
The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and simple. One of
the principal bases of the non-justiciability of so-called political
questions is the principle of separation of powers characteristic of
the Presidential system of government the functions of which are
classified or divided, by reason of their nature, into three (3) categories,
namely: 1) those involving the making of laws, which are allocated to
the legislative department; 2) those concerned mainly with the
enforcement of such laws and of judicial decisions applying and/or
interpreting the same, which belong to the executive department; and
3) those dealing with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives that are legally
demandable and enforceable, which are apportioned to courts of
justice. Within its own sphere but only within such sphere each
department is supreme and independent of the others, and each is
devoid of authority, not only to encroach upon the powers or field of
action assigned to any of the other departments, but, also, to inquire
into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments
provided that such acts, measures or decisions are withinthe area
allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system
goes hand in hand with the system of checks and balances, under
which each department is vested by the Fundamental Law with some
powers to forestall, restrain or arrest a possible or actual misuse or
abuse of powers by the other departments. Hence, the appointing
power of the Executive, his pardoning power, his veto power, his
authority to call the Legislature or Congress to special sessions and
even to prescribe or limit the object or objects of legislation that may
be taken up in such sessions, etc. Conversely, Congress or an agency or
arm thereof such as the commission on Appointments may
approve or disapprove some appointments made by the President. It,
also, has the power of appropriation, to "define, prescribe, and
apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by
the Constitution, the "Supreme Court and ... such inferior courts as may
be established by law," may settle or decide with finality, not only
justiciable controversies between private individuals or entities, but,
also, disputes or conflicts between a private individual or entity, on the
one hand, and an officer or branch of the government, on the other, or
between two (2) officers or branches of service, when the latter officer
or branch is charged with acting without jurisdiction or in excess thereof
or in violation of law. And so, when a power vested in said officer or
branch of the government is absolute or unqualified, the acts in the
exercise of such power are said to be political in nature, and,
consequently, non-justiciable or beyond judicial review. Otherwise,
courts of justice would be arrogating upon themselves a power
conferred by the Constitution upon another branch of the service to the
exclusion of the others. Hence, in Taada v. Cuenco, 26 this Court
quoted with approval from In re McConaughy, 27 the following:
"At the threshold of the case we are met with the assertion that the
questions involved are political, and not judicial. If this is correct, the
court has no jurisdiction as the certificate of the state canvassing board
would then be final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has been so often
decided contrary to the view contended for by the Attorney General
that it would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question is political,
and not judicial, is that it is a matter which is to be exercised by the
people in their primary political capacity, or that it has been specifically
delegated to some other department or particular officer of the
government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan.
155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16
C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25
L.R.A. 143, 42 Am. St. Rep. 220. Thus theLegislature may in its
discretion determine whether it will pass law or submit a proposed
constitutional amendment to the people. The courts have no judicial
control over such matters, not merely becausethey involve political
questions, but because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor may exercise
the powers delegated him, free from judicial control, so long as he
observes the laws act within the limits of the power conferred.
Hisdiscretionary acts cannot be controllable, not primarily because they
are of a politics nature, but because the Constitution and laws have
placed the particular matter under his control. But every officer under
constitutional government must act accordingly to law and subject its
restrictions, and every departure therefrom or disregard thereof must
subject him to that restraining and controlling power of the people,
acting through the agency of the judiciary; for it must be remembered
that the people act through courts, as well as through the executive or
the Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the special

duty of determining the limitations which the law places upon all official
action. The recognition of this principle, unknown except in Great
Britain and America, is necessary, to "the end that the government may
be one of laws and not of men" words which Webster said were the
greatest contained in any written constitutional document." (Emphasis
supplied.)
and, in an attempt to describe the nature of a political question in
terms, it was hoped, understandable to the laymen, We added that "...
the term "political question" connotes, in legal parlance, what it means
in ordinary parlance, namely, a question of policy" in matters
concerning the government of a State, as a body politic. "In other
words, in the language of Corpus Juris Secundum (supra), it refers to
"those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject
to limitations, the issue on whether or not the prescribed qualifications
or conditions have been met, or the limitations respected, is justiciable
or non-political, the crux of the problem being one of legality or
validity of the contested act, not its wisdom. Otherwise, said
qualifications, conditions or limitations particularly those prescribed
or imposed by the Constitution would be set at naught. What is more,
the judicial inquiry into such issue and the settlement thereof are
the mainfunctions of courts of justice under the Presidential form of
government adopted in our 1935 Constitution, and the system of
checks and balances, one of its basic predicates. As a consequence, We
have neither the authority nor the discretion to decline passing upon
said issue, but are under the ineluctable obligation made particularly
more exacting and peremptory by our oath, as members of the highest
Court of the land, to support and defend the Constitution to settle it.
This explains why, in Miller v. Johnson, 28 it was held that courts have a
"duty, rather than a power", to determine whether another branch of
the government has "kept within constitutional limits." Not satisfied
with this postulate, the court went farther and stressed that, if the
Constitution provides how it may be amended as it is in our 1935
Constitution "then, unless the manner is followed, the judiciary as
the interpreter of that constitution, will declare the amendment
invalid." 29 In fact, this very Court speaking through Justice Laurel, an
outstanding authority on Philippine Constitutional Law, as well as one of
the highly respected and foremost leaders of the Convention that
drafted the 1935 Constitution declared, as early as July 15, 1936,
that "(i)n times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicialdepartment is
the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments" of the
government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of his
stand that the issue under consideration is non-justiciable in nature.
Neither the factual background of that case nor the action taken therein
by the Federal Supreme Court has any similarity with or bearing on the
cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the
Circuit Court of the United States against Borden and others for having
forcibly entered into Luther's house, in Rhode Island, sometime in 1842.
The defendants who were in the military service of said former colony
of England, alleged in their defense that they had acted in obedience to
the commands of a superior officer, because Luther and others were
engaged in a conspiracy to overthrow the government by force and the
state had been placed by competent authority under Martial Law. Such
authority was the charter government of Rhode Island at the time of the
Declaration of Independence, for unlike other states which adopted a
new Constitution upon secession from England Rhode Island retained
its form of government under a British Charter, making only such
alterations, by acts of the Legislature, as were necessary to adapt it to
its subsequent condition as an independent state. It was under this
form of government when Rhode Island joined other American states in
the Declaration of Independence and, by subsequently ratifying the
Constitution of the United States, became a member of the Union. In
1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature
having failed to bring about the desired effect, meetings were held and
associations formed by those who belonged to this segment of the
population which eventually resulted in a convention called for the
drafting of a new Constitution to be submitted to the people for their
adoption or rejection. The convention was not authorized by any law of
the existing government. The delegates to such convention framed a
new Constitution which was submitted to the people. Upon the return of
the votes cast by them, the convention declared that said Constitution
had been adopted and ratified by a majority of the people and became
the paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of
citizens of the state, contested, however, the validity of said
proceedings. This notwithstanding, one Thomas W. Dorr, who had been
elected governor under the new Constitution of the rebels, prepared to
assert authority by force of arms, and many citizens assembled to
support him. Thereupon, the charter government passed an Act

declaring the state under Martial Law and adopted measures to repel
the threatened attack and subdue the rebels. This was the state of
affairs when the defendants, who were in the military service of the
charter government and were to arrest Luther, for engaging in the
support of the rebel government which was never able to
exercise any authority in the state broke into his house.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a new
constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the
people. "(T)he times and places at which the votes were to be given,
the persons who were to receive and return them, and the qualifications
of the voters having all been previously authorized and provided for by
law passed by the charter government," the latter formally surrendered
all of its powers to the new government, established under its authority,
in May 1843, which had been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military
force, had made an unsuccessful attempt to take possession of the
state arsenal in Providence, but he was repulsed, and, after an
"assemblage of some hundreds of armed men under his command at
Chepatchet in the June following, which dispersed upon approach of the
troops of the old government, no further effort was made to establish"
his government. "... until the Constitution of 1843" adopted under
the auspices of the charter government "went into operation, the
charter government continued to assert its authority and exercise its
powers and to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of
the rebels had been ratified by the majority of the people, which the
Circuit Court rejected, apart from rendering judgment for the
defendants, the plaintiff took the case for review to the Federal
Supreme Court which affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to the authority
of State decisions, that the trial of Thomas W. Dorr took place after the
constitution of 1843 went into operation. The judges who decided that
case held their authority under that constitution and it is admitted on
all hands that it was adopted by the people of the State, and is the
lawful and established government. It is the decision, therefore, of a
State court, whose judicial authority to decide upon the constitution
and laws of Rhode Island is not questioned by either party to this
controversy, although the government under which it acted was framed
and adopted under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the courts of
Rhode Island. The question relates, altogether, to the constitution and
laws of that State, and the well settled rule in this court is, that the
courts of the United States adopt and follow the decisions of the State
courts in questions which concern merely the constitution and laws of
the State.
Upon what ground could the Circuit Court of the United States which
tried this case have departed from this rule, and disregarded and
overruled the decisions of the courts of Rhode Island?Undoubtedly the
courts of the United States have certain powers under the Constitution
and laws of the United States which do not belong to the State courts.
But the power of determining that a State government has been
lawfully established, which the courts of the State disown and
repudiate, is not one of them. Upon such a question the courts of the
United States are bound to follow the decisions of the State tribunals,
and must therefore regard the charter government as the lawful and
established government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that
of the cases at bar. To begin with, the case did not involve a federal
question, but one purely municipal in nature. Hence, the Federal
Supreme Court was "bound to follow the decisions of the State
tribunals" of Rhode Island upholding the constitution adopted under the
authority of the charter government. Whatever else was said in that
case constitutes, therefore, an obiter dictum. Besides, no decision
analogous to that rendered by the State Court of Rhode Island exists in
the cases at bar. Secondly, the states of the Union have a measure
of internal sovereignty upon which the Federal Government may not
encroach, whereas ours is a unitary form of government, under which
our local governments derive their authority from the national
government. Again, unlike our 1935 Constitution, the charter or organic
law of Rhode Island contained noprovision on the manner, procedure or
conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and
there is a fundamental difference between these two (2) types of
recognition, the first being generally conceded to be a political
question, whereas the nature of the latter depends upon a number of
factors, one of them being whether the new Constitution has been
adopted in the manner prescribed in the Constitution in force at the
time of the purported ratification of the former, which
is essentially a justiciablequestion. There was, in Luther v. Borden, a
conflict between two (2) rival governments, antagonistic to each other,
which is absent in the present cases. Here, the Government established
under the 1935 Constitution is the very same government whose
Executive Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.

In short, the views expressed by the Federal Supreme Court in Luther v.

Borden, decided in 1849, on mattersother than those referring to its
power to review decisions of a state court concerning the constitution
and government of that state, not the Federal Constitution or
Government, are manifestly neither, controlling, nor even persuasive in
the present cases, having as the Federal Supreme Court admitted
no authority whatsoever to pass upon such matters or to review
decisions of said state court thereon. In fact, referring to that case, the
Supreme Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who
assert that the courts have no power to determine questions of a
political character. It is interesting historically, but it has not the
slightest application to the case at bar. When carefully analyzed, it
appears that it merely determines that the federal courts will accept as
final and controlling a decision of the highest court of a state upon a
question of the construction of the Constitution of the state. ... . 33
Baker v. Carr, 34 cited by respondents, involved an action to annul a
Tennessee statute apportioning the seats in the General Assembly
among the counties of the State, upon the theory that the legislation
violated the equal protection clause. A district court dismissed the case
upon the ground, among others, that the issue was a political one, but,
after a painstaking review of the jurisprudence on the matter, the
Federal Supreme Court reversed the appealed decision and held that
said issue was justiciable and non-political, inasmuch as:"... (d)eciding
whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation, and is a responsibility
of this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through
then Chief Justice Warren, reversed a decision of the Court of Appeals of
New York affirming that of a Federal District Court, dismissing Powell's
action for a declaratory judgment declaring thereunder that he
whose qualifications were uncontested had been unlawfully excluded
from the 90th Congress of the U.S. Said dismissal was predicated upon
the ground, inter alia, that the issue was political, but the Federal
Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of
American jurisprudence on the matter. Owing to the lucidity of its
appraisal thereof, We append the same to this opinion as Annex A
thereof.
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
The authorities are thus practically uniform in holding that whether a
constitutional amendment has been properly adopted according to the
requirements of an existing Constitution is a judicial question. There
can be little doubt that the consensus of judicial opinion is to the effect
that it is the absolute duty of the judiciary to determine whether the
Constitution has been amended in the manner required by the
Constitution, unless a special tribunal has been created to determine
the question; and even then many of the courts hold that the tribunal
cannot be permitted to illegally amend the organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it
is clear to my mind that the question whether or not the revised
Constitution drafted by the 1971 Constitutional Convention has been
ratified in accordance with said Art. XV is a justiciable one and nonpolitical in nature, and that it is not only subject to judicial inquiry, but,
also, that it is the Court's boundenduty to decide such question.
The Supreme Court of the United States has meaningfully postulated
that "the courts cannot reject as 'no law suit' " because it allegedly
involves a political question "a bona fide controversy as to whether
some action denominated "political" exceeds constitutional
authority." 37
III
Has the proposed new or revised Constitution been ratified
conformably to said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that
the President "is without authority to create the Citizens' Assemblies"
through which, respondents maintain, the proposed new Constitution
has been ratified; that said Assemblies "are without power to approve
the proposed Constitution"; 3) that the President "is without power to
proclaim the ratification by the Filipino people of the proposed
Constitution"; and 4) that "the election held (in the Citizens'
Assemblies) to ratify the proposed Constitution was not a free election,
hence null and void."
Apart from substantially reiterating these grounds support of said
negative view, the petitioners in L-36164 contend: 1) that the President
"has no power to call a plebiscite for the ratification or rejection" of the
proposed new Constitution or "to appropriate funds for the holding of
the said plebiscite"; 2) that the proposed new or revised Constitution "is
vague and incomplete," as well as "contains provisions which are
beyond the powers of the 1971 Convention to enact," thereby rendering
it "unfit for ... submission the people;" 3) that "(t)he period of time
between November 1972 when the 1972 draft was approved and
January 11-15, 1973," when the Citizens' Assemblies supposedly
ratified said draft, "was too short, worse still, there was practically no
time for the Citizens' Assemblies to discuss the merits of the
Constitution which the majority of them have not read a which they
never knew would be submitted to them ratification until they were

asked the question "do you approve of the New Constitution?" during
the said days of the voting"; and that "(t)here was altogether no
freedom discussion and no opportunity to concentrate on the matter
submitted to them when the 1972 draft was supposedly submitted to
the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative
view, that : 1) "(w)ith a government-controlled press, there can never
be a fair and proper submission of the proposed Constitution to the
people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as
the ratification process" prescribed "in the 1935 Constitution was not
followed."
Besides adopting substantially some of the grounds relied upon by the
petitioners in the above-mentioned cases, the petitioners in L-36283
argue that "(t)he creation of the Citizens' Assemblies as the vehicle for
the ratification of the Constitution was a deception upon the people
since the President announced the postponement of the January 15,
1973 plebiscite to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the
negative view have already been set forth earlier in this opinion. Hence,
it is unnecessary to reproduce them here. So it is, with respect to the
positions taken in L-36165 by counsel for therein respondents Gil J.
Puyat and Jose Roy although more will be said later about them
and by the Solicitor General, on behalf of the other respondents in that
case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its
amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
1. That the amendments to the Constitution be proposed either by
Congress or by a convention called for that purpose, "by a vote of
three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their
ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes cast"
in said election.
Compliance with the first requirement is virtually conceded, although
the petitioners in L-36164 question the authority of the 1971
Constitutional Convention to incorporate certain provisions into the
draft of the new or revised Constitution. The main issue in these five (5)
cases hinges, therefore, on whether or not the last two (2) requirements
have been complied with.
2. Has the contested draft of the new or revised Constitution been
submitted to the people for their ratification conformably to Art. XV of
the Constitution?
In this connection, other provisions of the 1935 Constitution concerning
"elections" must, also, be taken into account, namely, section I of Art. V
and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or
over and are able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein they propose to
vote for at least six months preceding the election. The National
Assembly shall extend the right of suffrage to women, if in a plebiscite
which shall be held for that purpose within two years after the adoption
of this Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote affirmatively on the
question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections
composed of a Chairman and two other Members to be appointed by
the President with the consent of the Commission on Appointments,
who shall hold office for a term of nine years and may not be
reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be conferred
upon it by law. It shall decide, save those involving the right to
vote, alladministrative questions, affecting elections, including the
determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials. All
law enforcement agencies and instrumentalities of the Government,
when so required by the Commission, shall act as its deputies for the
purpose of insuring fee, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to review by the
Supreme Court.
xxx xxx xxx 39
a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a
limitation upon the exercise of the right of suffrage. They claim that no
other persons than "citizens of the Philippines not otherwise disqualified
by law, who are twenty-one years of age or over and are able to read
and write, and who shall have resided in the Philippines for one year
and in the municipality wherein they propose to vote for at least six
months preceding the election," may exercise the right of suffrage in
the Philippines. Upon the other hand, the Solicitor General contends
that said provision merely guarantees the right of suffrage to persons
possessing the aforementioned qualifications and none of the
disqualifications, prescribed by law, and that said right may be vested

by competent authorities in persons lacking some or all of the

aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive
nature of the language "(s)uffrage may be exercised" used in
section 1 of Art. V of the Constitution, and the provisions of the Revised
Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6
thereof, providing that citizens of the Philippines "eighteen years of age
or over," who are registered in the list of barrio assembly members,
shall be members thereof and may participate as such in the plebiscites
prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution
declares who may exercise the right of suffrage, so that those lacking
the qualifications therein prescribed may not exercise such right. This
view is borne out by the records of the Constitutional Convention that
drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935
Constitution was largely based on the report of the committee on
suffrage of the Convention that drafted said Constitution which report
was, in turn, "strongly influenced by the election laws then in force in
the Philippines ... ." 40 " Said committee had recommended: 1) "That the
right of suffrage should exercised only by male citizens of the
Philippines." 2) "That should be limited to those who could read and
write." 3) "That the duty to vote should be made obligatory." It appears
that the first recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was eventually agreed
to include, in section 1 of Art. V of the Constitution, the second
sentence thereof imposing upon the National Assembly established by
the original Constitution instead of the bicameral Congress
subsequently created by amendment said Constitution the duty to
"extend the right of suffrage women, if in a plebiscite to, be held for
that purpose within two years after the adoption of this Constitution,
not less than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated
upon rather extensively, after which it was rejected by the
Convention. 42 This accounts, in my opinion, for the permissive
language used in the first sentence of said Art. V. Despite some debates
on the age qualification amendment having been proposed to reduce
the same to 18 or 20, which were rejected, and the residence
qualification, as well as the disqualifications to the exercise of the right
of suffrage the second recommendation limiting the right of suffrage
to those who could "read and write" was in the language of Dr. Jose
M. Aruego, one of the Delegates to said Convention "readily
approved in the Convention without any dissenting vote," although
there was some debate on whether the Fundamental Law should
specify the language or dialect that the voter could read and write,
which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional
provision under consideration was meant to be and is
a grant or conferment of a right to persons possessing the qualifications
and none of the disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and cannot,
accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other
branch of the Government to deny said right to the subject of the grant
and, in this sense only, may the same partake of the nature of a
guarantee. But, this does not imply not even remotely, that the
Fundamental Law allows Congress or anybody else to vest in those
lacking the qualifications and having the disqualifications mentioned in
the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage
responsible for the adoption of section 1 of Art. V of the Constitution
was "strongly influenced by the election laws then in force in the
Philippines." Our first Election Law was Act 1582, passed on January 9,
1907, which was partly amended by Acts 1669, 1709, 1726 and 1768,
and incorporated into the Administrative Code of 1916 Act 2657 as
chapter 20 thereof, and then in the Administrative Code of 1917 Act
2711 as chapter 18 thereof, which, in turn, was amended by Act
3387, approved on December 3, 1927. Sections 431 and 432 of said
Code of 1917, prescribing, respectively, the qualifications for and
disqualifications from voting, are quoted below. 44 In all of these
legislative acts, the provisions concerning the qualifications of voters
partook of the nature of a grant or recognition of the right of suffrage,
and, hence, of adenial thereof to those who lacked the requisite
qualification and possessed any of the statutory disqualifications. In
short, the history of section 1, Art. V of the Constitution, shows beyond
doubt than the same conferred not guaranteed the authority to
persons having the qualifications prescribed therein and none of
disqualifications to be specified in ordinary laws and, necessary
implication, denied such right to those lacking any said qualifications,
or having any of the aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial
amendment" to said section 1 of Art. V of the 1935 Constitution, by
reducing the voting age from twenty-one (21) years to eighteen (18)
years, which, however, did not materialize on account of the decision of
this Court in Tolentino v. Commission on Elections, 45 granting the writs,
of prohibition and injunction therein applied for, upon the ground that,
under the Constitution, all of the amendments adopted by the
Convention should be submitted in "an election" or a single election,

not separately or in several or distinct elections, and that the proposed

amendment sought to be submitted to a plebiscite was not even a
complete amendment, but a "partial amendment" of said section
1, which could be amended further, after its ratification, had the same
taken place, so that the aforementioned partial amendment was, for
legal purposes, no more than a provisional or temporary amendment.
Said partial amendment was predicated upon the generally accepted
contemporary construction that, under the 1935 Constitution, persons
below twenty-one (21) years of age could not exercise the right of
suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of
barrio assemblies may vote in barrio assembly plebiscites is, to say the
least, a debatable one. Indeed, there seems to be a conflict between
the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to
which the "majority vote of all the barrio assemblymembers" (which
include all barrio residents 18 years of age or over, duly registered in
the list of barrio assembly members) is necessary for the approval, in
an assembly plebiscite, of "any budgetary, supplemental appropriations
or special tax ordinances," whereas, according to the paragraph
preceding the penultimate one of said section, 47 "(a)ll duly registered
barrio assembly members qualified to vote" who, pursuant to section
10 of the same Act, must be citizens "of the Philippines, twenty-one
years of age or over, able to read and write," and residents the barrio
"during the six months immediately preceding election, duly registered
in the list of voters" and " otherwise disqualified ..." just like the
provisions of present and past election codes of the Philippines and Art.
V of the 1935 Constitution "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of
the 21-year-old members of the assembly, not only because this
interpretation is in accord with Art. V the Constitution, but, also,
because provisions of a Constitution particularly of a written and rigid
one, like ours generally accorded a mandatory status unless the
intention to the contrary is manifest, which is not so as regards said Art.
V for otherwise they would not have been considered sufficiently
important to be included in the Fundamental Law of the
land. 48 Besides, it would be illogical, if not absurd, believe that Republic
Act No. 3590 requires, for the most important measures for which it
demands in addition to favorable action of the barrio council the
approval of barrio assembly through a plebiscite, lesser qualifications
than those prescribed in dealing with ordinary measures for which such
plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935
Constitution intended section 1 of Art. V thereof to apply only to
elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an
entirely new Constitution, and permit the legislature to require lesser
qualifications for such ratification, notwithstanding the fact that the
object thereof much more important if not fundamental, such as the
basic changes introduced in the draft of the revised Constitution
adopted by the 1971 Constitutional Convention, which a intended to be
in force permanently, or, at least, for many decades, and to affect the
way of life of the nation and, accordingly, demands greater
experience and maturity on the part of the electorate than that
required for the election of public officers, 49 whose average term
ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years,
regardless of whether or not they possessed the other qualifications
laid down in both the Constitution and the present Election Code, 50 and
of whether or not they are disqualified under the provisions of said
Constitution and Code, 51 or those of Republic Act No. 3590,52 have
participated and voted in the Citizens' Assemblies that have allegedly
ratified the new or revised Constitution drafted by the 1971
Constitutional Convention.
In fact, according to the latest official data, the total number of
registered voters 21 years of age or over in the entire Philippines,
available in January 1973, was less than 12 million. Yet, Proclamation
No. 1102 states that 14,976,56 "members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as
against ... 743,869 who voted for its rejection," whereas, on the
question whether or not the people still wanted a plebiscite to be called
to ratify the new Constitution, "... 14,298,814 answered that there was
no need for a plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite." In other
words, it is conceded that the number of people who allegedly voted at
the Citizens' Assemblies for exceeded the number of registered
voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies
and We have more to say on this point in subsequent pages were
fundamentally irregular, in that persons lacking the qualifications
prescribed in section 1 of Art. V of the Constitution were allowed to vote
in said Assemblies. And, since there is no means by which the invalid
votes of those less than 21 years of age can be separated or
segregated from those of the qualified voters, the proceedings in the
Citizens' Assemblies must be considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be
exercised ... in a case where it is impossibleto ascertain with reasonable
certainty the true vote," as where "it is impossible to separate the legal
votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:

Several circumstances, defying exact description and dependent mainly

on the factual milieu of the particular controversy, have the effect of
destroying the integrity and authenticity of disputed election returns
and of avoiding their prima facie value and character. If satisfactorily
proven, although in a summary proceeding, such circumstances as
alleged by the affected or interested parties, stamp the election returns
with the indelible mark of falsity and irregularity, and, consequently, of
unreliability, and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast"
for a proposed amendment to the Fundamental Law to be "valid" as
part thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially." 57
It seems to us that a vote is cast when a ballot is deposited indicating a
"choice." ... The word "cast" means "deposit (a ballot) formally or
officially ... .
... In simple words, we would define a "vote cast" as the exercise on a
ballot of the choice of the voter on the measure proposed. 58
In short, said Art. XV envisages with the term "votes cast" choices
made on ballots not orally or by raising by the persons taking part
in plebiscites. This is but natural and logical, for, since the early years
of the American regime, we had adopted the Australian Ballot System,
with its major characteristics, namely, uniform official ballots prepared
and furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when
necessary, into the accuracy of the election returns. And the 1935
Constitution has been consistently interpreted in all plebiscites for the
ratification rejection of proposed amendments thereto, from 1935 to
1967. Hence, the viva voce voting in the Citizens' Assemblies was and
is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision
indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is
that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1
provides that "(t)here shall be an independent Commission on Elections
... ." The point to be stressed here is the term "independent." Indeed,
why was the term used?
In the absence of said constitutional provision as to the independence
of the Commission, would it have been depends upon either Congress
or the Judiciary? The answer must be the negative, because the
functions of the Commission "enforcement and administration" of
election laws are neither legislative nor judicial in nature, and, hence,
beyond the field allocated to either Congress or courts of justice. Said
functions are by their nature essentially executive, for which reason,
the Commission would be under the "control" of the President, pursuant
to section 10, paragraph (1) of Art. VII of the Constitution, if Art. X
thereof did not explicitly declare that it (the Commission) is an
"independent" body. In other words, in amending the original 1935
Constitution, by inserting therein said Art. X, on the Commission on
Elections, the purpose was to make said Commission independent
principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior,
through its Executive Bureau, one of the offices under the supervision
and control of said Department. The same like other departments of
the Executive Branch of the Government was, in turn, under the
control of the Chief Executive, before the adoption of the 1935
Constitution, and had been until the abolition of said Department,
sometime ago under the control of the President of the Philippines,
since the effectivity of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of control over the
Department of the Interior and its Executive Bureau as to place the
minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in
power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by
the establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened
by the long term of office of its members nine (9) years, except those
first appointed 59 the longest under the Constitution, second only to
that of the Auditor General 60; by providing that they may not be
removed from office except by impeachment, placing them, in this
respect, on the same plane as the President, the Vice-President, the
Justices of the Supreme Court and the Auditor General; that they may
not be reappointed; that their salaries, "shall be neither increased nor
diminished during their term of office"; that the decisions the
Commission "shall be subject to review by the Supreme Court" only 61;
that "(n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable
recommendation of the Commission" 62; and, that its chairman and
members "shall not, during the continuance in office, engage in the
practice of any profession or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may
affected by the functions of their office; nor shall they, directly or
indirectly, be financially interested in any contract with the Government
or any subdivision or instrumentality thereof." 63 Thus, the framers of

the amendment to the original Constitution of 1935 endeavored to do

everything possible protect and insure the independence of each
member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X
ordains that "(t)he Commission on Elections shall have exclusive charge
of the enforcement and administration all laws relative to the conduct
of elections," apart from such other "functions which may be conferred
upon it by law." It further provides that the Commission "shall decide,
save those involving the right to vote, all administrative question
affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors
and of other election officials." And, to forests possible conflicts or
frictions between the Commission, on one hand, and the other offices or
agencies of the executive department, on the other, said section 2
postulates that "(a)ll law enforcement agencies and instrumentalities of
the Government, when so required by the Commission, shall act as its
deputies for the purpose of insuring free, orderly, and honest elections."
Not satisfied with this, it declares, in effect, that "(t)he decisions,
orders, and ruling of the Commission" shall not be subject to review,
except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the Election Code of 1971,
implements the constitutional powers of the Commission on Elections
and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and
other (corrupt) practices; the establishment of election precincts; the
designation and arrangement of polling places, including voting booths,
to protect the secrecy of the ballot; formation of lists of voters, the
identification and registration of voters, the proceedings therefor, as
well as for the inclusion in, or exclusion or cancellation from said list
and the publication thereof; the establishment of municipal, provincial
and files of registered voters; the composition and appointment of
board of election inspectors; the particulars of the official ballots to be
used and the precautions to be taken to insure authenticity thereof; the
procedure for the casting of votes; the counting of votes by boards of
inspectors; the rules for the appreciation of ballots and the preparation
and disposition of election returns; the constitution and operation of
municipal, provincials and national boards of canvassers; the
presentation of the political parties and/or their candidates in each
election precinct; the proclamation of the results, including, in the case
of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election
Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the
so-called Barangays or Citizens' Assemblies. And no reasons have been
given, or even sought to be given therefor. In many, if not most,
instances, the election were held a viva voce, thus depriving the
electorate of the right to vote secretly one of the most, fundamental
and critical features of our election laws from time immemorial
particularly at a time when the same was of utmostimportance, owing
to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly, without
complying with the requirements of the law pertinent thereto, it was
held that the "election officers" involved "cannot be too strongly
condemned" therefor and that if they "could legally dispense with such
requirement ... they could with equal propriety dispense with all of
them, including the one that the vote shall be by secret ballot, or even
by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the
proposed Constitution drafted by the 1971 Constitutional Convention, or
on December 1, 1972, Presidential Decree No. 73 (on the validity of
which which was contested in the plebiscite cases, as well as in the
1972 habeas corpus cases 66 We need not, in the case of bar, express
any opinion) was issued, calling a plebiscite, to be held on January 15,
1973, at which the proposed Constitution would be submitted to the
people for ratification or rejection; directing the publication of said
proposed Constitution; and declaring, inter alia, that "(t)he provision of
the Election Code of 1971, insofar as they are not inconsistent" with
said decree excepting those "regarding right and obligations of
political parties and candidates" "shall apply to the conduct of the
plebiscite." Indeed, section 2 of said Election Code of 1971 provides
that "(a)ll elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code."
General Order No. 20, dated January 7, 1973, postponing until further
notice, "the plebiscite scheduled to be held on January 15, 1973," said
nothing about the procedure to be followed in plebiscite to take place at
such notice, and no other order or decree has been brought to Our
attention, expressly or impliedly repealing the provisions of Presidential
Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended
"the provisions of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of proposed Constitution ... temporarily
suspending effects of Proclamation No. 1081 for the purposes of free
open dabate on the proposed Constitution ... ." This specific mention of
the portions of the decrees or orders or instructions suspended by

General Order No. 20 necessarily implies that all other portions of said
decrees, orders or instructions and, hence, the provisions of
Presidential Decree No. 73 outlining the procedure to be followed in the
plebiscite for ratification or rejection of the proposed Constitution
remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of
which is quoted below 67 the Executive declared, inter alia, that the
collective views expressed in the Citizens' Assemblies "shall
be considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific
decision"; that such Citizens' Assemblies "shall consider vital national
issues ... like the holding of the plebiscite on the new Constitution ...
and others in the future, which shall serve as guide or basis for
action or decision by the national government"; and that the Citizens'
Assemblies "shall conduct between January 10 and 15, 1973,
a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit the results thereof to the Department
of Local Governments and Community Development immediately
thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A
does not and cannot exclude the exercise of the constitutional
supervisory power of the Commission on Elections or its participation in
the proceedings in said Assemblies, if the same had been intended to
constitute the "election" or Plebiscite required Art. V of the 1935
Constitution. The provision of Decree No. 86-A directing the immediate
submission of the result thereof to the Department of Local
Governments Community Development is not necessarily inconsistent
with, and must be subordinate to the constitutional power of the
Commission on Elections to exercise its "exclusive authority over the
enforcement and administration of all laws to the conduct of elections,"
if the proceedings in the Assemblies would partake of the nature of an
"election" or plebiscite for the ratification or rejection of the proposed
Constitution.
We are told that Presidential Decree No. 86 was further amended by
Presidential Decree No. 86-B, dated 1973, ordering "that important
national issues shall from time to time; be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential
Decree No. 86-A dated January 5, 1973 and that the initial referendum
include the matter of ratification of the Constitution by the 1971
Constitutional Convention" and that "(t)he Secretary of the Department
of Local Governments and Community Development shall insure the
implementation of this order." As in the case of Presidential Decrees
Nos. 86 and 86-A, the foregoing directives do not necessarily exclude
exercise of the powers vested by the 1935 Constitution in the
Commission on Elections, even if the Executive had the authority to
repeal Art. X of our Fundamental Law which he does not possess.
Copy of Presidential Decree No. 86-B is appended hereto as Annex B
hereof.
The point is that, such of the Barrio Assemblies as were held took place
without the intervention of the Commission on Elections, and without
complying with the provisions of the Election Code of 1971 or even of
those of Presidential Decree No. 73. What is more, they were held under
the supervision of the very officers and agencies of the Executive
Department sought to be excluded therefrom by Art. X of the 1935
Constitution. Worse still, said officers and agencies of the 1935
Constitution would be favored thereby, owing to the practical indefinite
extension of their respective terms of office in consequence of section 9
of the Transitory Provisions, found in Art. XVII of the proposed
Constitution, without any elections therefor. And the procedure therein
mostly followed is such that there is no reasonable means of
checking the accuracy of the returns files by the officers who conducted
said plebiscites. This is another patent violation of Art. of the
Constitution which can hardly be sanctioned. And, since the provisions
of this article form part of the fundamental scheme set forth in the
1935 Constitution, as amended, to insure the "free, orderly, and
honest" expression of the people's will, the aforementioned violation
thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed
to have ratified the revised Constitution proposed by the 1971
Constitutional Convention. "...(a)ll the authorities agree that the legal
definition of an election, as well as that which is usually and ordinarily
understood by the term, is a choosing or as election by those having a
right to participate (in the selection) of those who shall fill the
offices, or of the adoption or rejection of any public measure affecting
the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55
Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82
Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24
N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No.
1102, the validity of which is precisely being contested by petitioners
herein. Respondents claim that said proclamation is "conclusive" upon
this Court, or is, at least, entitled to full faith and credence, as an
enrolled bill; that the proposed Constitution has been, in fact, ratified,
approved or adopted by the "overwhelming" majority of the people;
that Art. XV of the 1935 Constitution has thus been "substancially"
complied with; and that the Court refrain from passing upon the validity

of Proclamation No. 1102, not only because such question is political in

nature, but, also, because should the Court invalidate the proclamation,
the former would, in effect, veto the action of the people in whom
sovereignty resides and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a
fact, the very premise on which it is predicated, and which, moreover, is
contested by the petitioners. As the Supreme Court of Minnessota has
aptly put it
... every officer under a constitutional government must act according
to law and subject to its restrictions, and every departure therefrom or
disregard thereof must subject him to the restraining and controlling of
the people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through the
executive or the Legislature. One department is just as representative
as the other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law places
upon all official action. ... .
Accordingly, the issue boils downs to whether or not the Executive
acted within the limits of his authority when he certified in Proclamation
No. 1102 "that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines and has
thereby come into effect."
In this connection, it is not claimed that the Chief Executive had
personal knowledge of the data he certified in said proclamation.
Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even
exercise any authority whatsoever over "all laws relative to the conduct
of elections," and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any
proposed amendment, or revision of the Fundamental Law, since the
proceedings for the latter are, also, referred to in said Art. XV as
"elections".
The Solicitor General stated, in his argument before this Court, that he
had been informed that there was in each municipality a municipal
association of presidents of the citizens' assemblies for each barrio of
the municipality; that the president of each such municipal association
formed part of a provincial or city association of presidents of such
municipal associations; that the president of each one of these
provincial or city associations in turn formed part of a National
Association or Federation of Presidents of such Provincial or City
Associations; and that one Francisco Cruz from Pasig, Rizal, as President
of said National Association or Federation, reported to the President of
the Philippines, in the morning of January 17, 1973, the total result of
the voting in the citizens' assemblies all over the country from January
10 to January 15, 1973. The Solicitor General further intimated that the
said municipal associations had reported the results of the citizens'
assemblies in their respective municipalities to the corresponding
Provincial Association, which, in turn, transmitted the results of the
voting in the to the Department of Local Governments and Community
Development, which tabulated the results of the voting in the citizens'
assemblies throughout the Philippines and then turned them over to Mr.
Franciso Cruz, as President or acting President of the National
Association or Federation, whereupon Mr. Cruz, acting in a ceremonial
capacity, reported said results (tabulated by the Department of
Governments and Community Development) to the Chief Executive,
who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of
any barrio council since 1972, so that he could possibly have been
a member on January 17, 1973, of a municipal association
of presidents of barrio or ward citizens' assemblies, much less of a
Provincial, City or National Association or Federation of Presidents of
any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16,
1973, and in the resolution of this Court of same date, the Solicitor
General was asked to submit, together with his notes on his oral
argument, a true copy of aforementioned report of Mr. Cruz to the
President and of "(p)roclamation, decree, instruction, order, regulation
or circular, if any, creating or directing or authorizing creation,
establishment or organization" of said municipal, provincial and
national associations, but neither a copy of alleged report to the
President, nor a copy of any "(p)roclamation, decree, instruction, order,
regulation or circular," has been submitted to this Court. In the absence
of said report, "(p)roclamation, decree, instruction," etc., Proclamation
No. 1102 is devoid of any factual and legalfoundation. Hence, the
conclusion set forth in the dispositive portion of said Proclamation No.
1102, to the effect that the proposed new or revised Constitution had
been ratified by majority of the votes cast by the people, can not
possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly
untenable. If it were, acts of the Executive and those of Congress could
not possibly be annulled or invalidated by courts of justice. Yet, such is
not the case. In fact, even a resolution of Congress declaring that a
given person has been elected President or Vice-President of the
Philippines as provided in the Constitution, 69 is not conclusive upon the
courts. It is no more than prima facieevidence of what is attested to by
said resolution. 70 If assailed directly in appropriate proceedings, such
as an election protest, if and when authorized by law, as it is in the
Philippines, the Court may receive evidence and declare, in accordance

therewith, who was duly elected to the office involved. 71 If prior to the
creation of the Presidential Electoral Tribunal, no such protest could be
filed, it was not because the resolution of Congress declaring who had
been elected President or Vice-President was conclusive upon courts of
justice, but because there was no law permitting the filing of such
protest and declaring what court or body would hear and decide the
same. So, too, a declaration to the effect that a given amendment to
the Constitution or revised or new Constitution has been ratified by a
majority of the votes cast therefor, may be duly assailedin court and be
the object of judicial inquiry, in direct proceedings therefor such as
the cases at bar and the issue raised therein may and should be
decided in accordance with the evidence presented.
The case of In re McConaughy 72 is squarely in point. "As the
Constitution stood from the organization of the state" of Minnessota
"all taxes were required to be raised under the system known as the
'general property tax.' Dissatisfaction with the results of this method
and the development of more scientific and satisfactory methods of
raising revenue induced the Legislature to submit to the people an
amendment to the Constitution which provided merely that taxes shall
be uniform upon the same class of subjects. This proposed amendment
was submitted at the general election held in November, 1906, and in
due time it was certified by the state canvassing board and proclaimed
by the Governor as having been legally adopted. Acting upon the
assumption that the amendment had become a part of the Constitution,
the Legislature enacted statutes providing for a State Tax Commission
and a mortgage registry tax, and the latter statute, upon the same
theory, was held constitutional" by said Court. "The district court found
that the amendment had no in fact been adopted, and on this appeal"
the Supreme Court was "required to determine the correctness of that
conclusion."
Referring to the effect of the certification of the State Board of
Canvassers created by the Legislature and of theproclamation made by
the Governor based thereon, the Court held: "It will be noted that this
board does no more than tabulate the reports received from the various
county board and add up and certify the results. State v. Mason, 45
Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the
decisions of election officers, and canvassing boards are not
conclusive and that the final decision must rest with the courts, unless
the law declares that the decisions of the board shall be final" and
there is no such law in the cases at bar. "... The correctness of the
conclusion of the state board rests upon the correctness of the returns
made by the county boards and it is inconceivable that it was intended
that this statement of result should be final and conclusive regardless
of the actual facts. The proclamation of the Governor adds nothing in
the way of conclusiveness to the legal effect of the action of the
canvassing board. Its purpose is to formally notify the people of the
state of the result of the voting as found by the canvassing board.
James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the
election made by the canvassing board, in order that the true results
could be judicially determined. And so did the court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the
"exclusive" charge of the Commission on Elections, "the enforcement
and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a
certification by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 apart from
the fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the
citizens' assemblies all over the Philippines it follows necessarily
that, from a constitutional and legal viewpoint, Proclamation No. 1102
is not even prima facie evidence of the alleged ratification of the
proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as
pointed out in the discussion of the preceding topic, the new or revised
Constitution proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the 1935
Constitution. In fact, it has not even been, ratified in accordance with
said proposed Constitution, the minimum age requirement therein for
the exercise of the right of suffrage beingeighteen (18) years, apart
from the fact that Art. VI of the proposed Constitution requires "secret"
voting, which was not observed in many, if not most, Citizens'
Assemblies. Besides, both the 1935 Constitution and the proposed
Constitution require a "majority of the votes cast" in an election or
plebiscite called for the ratification of an amendment or revision of the
first Constitution or the effectivity of the proposed Constitution, and the
phrase "votes cast" has been construed to mean "votes made in writing
not orally, as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165,
asserts openly that Art. XV of the Constitution has not been complied
with, and since the alleged substantial compliance with the
requirements thereof partakes of the nature of a defense set up by the
other respondents in these cases, the burden of proving such defense
which, if true, should be within their peculiar knowledge is clearly
on such respondents. Accordingly, if despite the extensive notes and
documents submitted by the parties herein, the members of the Court
do not know or are not prepared to say whether or not the majority of
the people or of those who took part in the Citizens' Assemblies have
assented to the proposed Constitution, the logical step would be to give

due course to these cases, require the respondents to file their

answers, and the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues
raised thereby. Otherwise, we would be placing upon the petitioners the
burden of disproving a defense set up by the respondents, who havenot
so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the
circumstance that there is ample reason to believe that many, if not
most, of the people did not know that the Citizens' Assemblies were, at
the time they were held, plebiscites for the ratification or rejection of
the proposed Constitution. Hence, in Our decision in the plebiscite
cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an
order temporarily suspending the effects of Proclamation No. 1081, for
the purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the
plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite
scheduled to be held on January 15, 1973, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the
meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open
debate on the proposed Constitution.
In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then again, Congress was, pursuant to
the 1935 Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections the Court deemed it more imperative to
defer its final action on these cases.
And, apparently, the parties in said cases entertained the same belief,
for, on December 23, 1972 four (4) days after the last hearing of said
cases 76 the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15,
1973, after consultation with the Commission on Elections and the
leaders of Congress, owing to doubts on the sufficiency of the time
available to translate the proposed Constitution into some local dialects
and to comply with some pre-electoral requirements, as well as to
afford the people a reasonable opportunity to be posted on the
contents and implications of said transcendental document. On January
7, 1973, General Order No. 20 was issued formally, postponing said
plebiscite "until further notice." How can said postponement be
reconciled with the theory that the proceedings in the Citizens'
Assemblies scheduled to be held from January 10 to January 15, 1973,
were "plebiscites," in effect, accelerated, according to the theory of the
Solicitor General, for the ratification of the proposed Constitution? If
said Assemblies were meant to be the plebiscites or elections
envisaged in Art. XV of the Constitution, what, then, was the
"plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended such
assemblies to believe that the same were not an "election" or plebiscite
for the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in
the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question.]
[6] Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next
elections to be called?
[11] Do you want martial law to continue? [Bulletin Today, January 11,
1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper
in a plebiscite for the ratification of a proposed Constitution or of a
proposed amendment thereto. Secondly, neither is the language of
question No. 7 "Do you approve the new Constitution?" One approves
"of" the act of another which does not need such approval for the
effectivity of said act, which the first person, however, finds to be good,
wise satisfactory. The approval of the majority of the votes cast in
plebiscite is, however, essential for an amendment to the Constitution
to be valid as part thereof. Thirdly, if the proceedings in the Citizens'
Assemblies constituted a plebiscite question No. 8 would have been
unnecessary and improper, regardless of whether question No. 7 were

answered affirmatively or negatively. If the majority of the answers to

question No. 7 were in the affirmative, the proposed Constitution would
have become effective and no other plebiscite could be held thereafter
in connection therewith, even if the majority of the answers to question
No. 8 were, also, in the affirmative. If the majority of the answers to
question No. 7 were in the negative, neither may another plebiscite be
held, even if the majority of the answers to question No. 8 were in the
affirmative. In either case, not more than one plebiscite could be held
for the ratification or rejection of the proposed Constitution. In short,
the insertion of said two (2) questions apart from the other questions
adverted to above indicates strongly that the proceedings therein
did not partake of the nature of a plebiscite or election for the
ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed
Constitution has been approved or adopted by the people in the
citizens' assemblies all over the Philippines, when it is, to my mind, a
matter of judicial knowledge that there have been no such citizens'
assemblies in many parts of Manila and suburbs, not to say, also, in
other parts of the Philippines. In a letter of Governor Efren B. Pascual of
Bataan, dated January 15, 1973, to the Chief Executive, the former
reported:
... This report includes a resumee (sic) of the activities we undertook in
effecting the referendum on the eleven questions you wanted our
people consulted on and the Summary of Results thereof for each
municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original
five questions. Consequently, when we received an instruction on
January 10 to change the questions, we urgently suspended all
scheduled Citizens Assembly meetings on that day and called all
Mayors, Chiefs of Offices and other government officials to another
conference to discuss with them the new set of guidelines and
materials to be used.
On January 11, ... another instruction from the top was received to
include the original five questions among those to be discussed and
asked in the Citizens' Assembly meetings. With this latest order, we
again had to make modifications in our instructions to all those
managing and supervising the holding of the Citizens' Assembly
meetings throughout the province. ... Aside from the coordinators we
had from the Office of the Governor, the splendid cooperation and
support extended by almost all government officials and employees in
the province, particularly of the Department of Education, PC and PACD
personnel, provided us with enough hands to trouble shoot and
implement sudden changes in the instructions anytime and anywhere
needed. ...
... As to our people, in general, their enthusiastic participation showed
their preference and readiness to accept this new method of
government to people consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had
to suspend "all scheduled Citizens' Assembly meetings ..." and call all
available officials "... to discuss with them the new set of guidelines and
materials to be used ... ." Then, "on January 11 ... another instruction
from the top was received to include the original five questions among
those be discussed and asked in the Citizens' Assembly meetings. With
this latest order, we again had to make modifications in our instructions
to all those managing and supervising holding of the Citizens' Assembly
meetings throughout province. ... As to our people, in general, their
enthusiastic participation showed their preference and readiness to
accept the new method of government to people consultation in
shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11,
1973, the Bataan officials had still to discuss not put into operation
means and ways to carry out the changing instructions from the top on
how to organize the citizens' assemblies, what to do therein and even
what questions or topics to propound or touch in said assemblies; 2)
that the assemblies would involve no more than consultations or
dialogues between people and government not decisions be
made by the people; and 3) that said consultations were aimed only at
"shaping up government policies" and, hence could not, and did not,
partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter
does not entail the formulation of a policy of the Government, but the
making of decision by the people on the new way of life, as a nation,
they wish to have, once the proposed Constitution shall have been
ratified.
If this was the situation in Bataan one of the provinces nearest to
Manila as late as January 11, 1973, one can easily imagine the
predicament of the local officials and people in the remote barrios in
northern and southern Luzon, in the Bicol region, in the Visayan Islands
and Mindanao. In fact, several members of the Court, including those of
their immediate families and their household, although duly registered
voters in the area of Greater Manila, were not even notified that
citizens' assemblies would be held in the places where their respective
residences were located. In the Prohibition and Amendment
case, 77 attention was called to the "duty cast upon the court of taking
judicial cognizance of anything affecting the existence and validity of
any law or portion of the
Constitution ... ." In line with its own pronouncement in another case,
the Federal Supreme Court of the United States stressed, in Baker v.
Carr, 78 that "a court is not at liberty to shut its eyes to an obvious

mistake, when the validity of the law depends upon the truth of what is
declared."
In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the
negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and
has been run, since January 17, 1971, under the Constitution drafted by
the 1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign
relations are being conducted under such new or revised Constitution;
that the Legislative Department has recognized the same; and that the
people, in general, have, by their acts or omissions, indicated their
conformity thereto.
As regards the so-called political organs of the Government, gather that
respondents refer mainly to the offices under the Executive
Department. In a sense, the latter performs some functions which, from
a constitutional viewpoint, are politics in nature, such as in recognizing
a new state or government, in accepting diplomatic representatives
accredited to our Government, and even in devising administrative
means and ways to better carry into effect. Acts of Congress which
define the goals or objectives thereof, but are either imprecise or silent
on the particular measures to be resorted to in order to achieve the said
goals or delegate the power to do so, expressly or impliedly, to the
Executive. This, notwithstanding, the political organ of a government
that purports to be republican is essentially the Congress or Legislative
Department. Whatever may be the functions allocated to the Executive
Department specially under a written, rigid Constitution with a
republican system of Government like ours the role of that
Department is inherently, basically and fundamentally executive in
nature to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers
and offices of the Executive Department, in line with Proclamation No.
1102, connote a recognition thereof o an acquiescence thereto.
Whether they recognized the proposed Constitution or acquiesce
thereto or not is something that cannot legally, much less necessarily
or even normally, be deduced from their acts in accordance therewith,
because the are bound to obey and act in conformity with the orders of
the President, under whose "control" they are, pursuant to the 1935
Constitution. They have absolutely no other choice, specially in view of
Proclamation No. 1081 placing the Philippines under Martial Law.
Besides, by virtue of the very decrees, orders and instructions issued by
the President thereafter, he had assumed all powers of Government
although some question his authority to do so and, consequently,
there is hardly anything he has done since the issuance of Proclamation
No. 1102, on January 17, 1973 declaring that the Constitution
proposed by the 1971 Constitutional Convention has been ratified by
the overwhelming majority of the people that he could not do under
the authority he claimed to have under Martial Law, since September
21, 1972, except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under the
Supreme Court, and which the President has not ostensibly exercised,
except as to some minor routine matters, which the Department of
Justice has continued to handle, this Court having preferred to maintain
the status quo in connection therewith pending final determination of
these cases, in which the effectivity of the aforementioned Constitution
is disputed.
Then, again, a given department of the Government cannot generally
be said to have "recognized" its own acts. Recognition normally
connotes the acknowledgment by a party of the acts of another.
Accordingly, when a subordinate officer or office of the Government
complies with the commands of a superior officer or office, under whose
supervision and control he or it is, the former merely obeys the latter.
Strictly speaking, and from a legal and constitutional viewpoint, there is
no act of recognition involved therein. Indeed, the lower officer or
office, if he or it acted otherwise, would just be guilty of
insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by
respondents herein in support of the theory of the people's
acquiescence involved a constitution ordained in 1902 and
"proclaimed by a convention duly called by a direct vote of the people
of the state to revise and amend the Constitution of 1869. The result of
the work of that Convention has been recognized, accepted and acted
upon as the only valid Constitution of the State" by
1. The "Governor of the State in swearing fidelity to it and proclaiming
it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint resolution,
July 15, 1902, recognizing the Constitution ordained by the
Convention ...";
3. The "individual oaths of its members to support it, and by its having
been engaged for nearly a year, in legislating under it and putting its
provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and
by enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and
acquiescing in it, by registering as voters under it to the extent of
thousands throughout the State, and by voting, under its provisions, at

a general election for their representatives in the Congress of the

United States."
Note that the New Constitution of Virginia, drafted by a convention
whose members were elected directly by the people, was not submitted
to the people for ratification or rejection thereof. But, it was
recognized, not by the convention itself, but by other sectors of the
Government, namely, the Governor; the Legislature not merely by
individual acts of its members, but by formal joint resolution of its two
(2) chambers; by the judiciary; and by the people, in the various ways
specified above. What is more, there was no martial law. In the present
cases, none of the foregoing acts of acquiescence was present. Worse
still, there is martial law, the strict enforcement of which was
announced shortly before the alleged citizens' assemblies. To top it all,
in the Taylor case, the effectivity of the contested amendment was not
contested judicially until about one (1) year after the amendment had
been put into operation in all branches of the Government, and
complied with by the people who participated in the elections held
pursuant to the provisions of the new Constitution. In the cases under
consideration, the legality of Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, was impugned as early as
December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratified despite
General Order No. 20, issued on January 7, 1972, formally and officially
suspending the plebiscite until further notice was impugned as early
as January 20, 1973, when L-36142 was filed, or three (3) days after the
issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of
Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad
Interim Assembly established in the Transitory Provisions of said
Constitution. Individual acts of recognition by members of our
legislature, as well as of other collegiate bodies under the government,
are invalid as acts of said legislature or bodies, unless its members
have performed said acts in session duly assembled, or unless the law
provides otherwise, and there is no such law in the Philippines. This is a
well-established principle of Administrative Law and of the Law of Public
Officers, and no plausible reason has been adduced to warrant
departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the
proposed Constitution, why did it become necessary to padlock its
premises to prevent its meeting in session on January 22, 1973, and
thereafter as provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent on discharging their
functions under said Constitution, could have met in any other place,
the building in which they perform their duties being immaterial to the
legality of their official acts. The force of this argument is, however,
offset or dissipated by the fact that, on or about December 27, 1972,
immediately after a conference between the Executive, on the one
hand, and members of Congress, on the other, some of whom
expressed the wish to meet in session on January 22, 1973, as provided
in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares)
attributed to Presidential Assistant Guillermo de Vega a statement to
the effect that "'certain members of the Senate appear to be missing
the point in issue' when they reportedly insisted on taking up first the
question of convening Congress." The Daily Express of that
date, 82 likewise, headlined, on its front page, a "Senatorial PlotAgainst
'Martial Law Government' Disclosed". Then, in its issue of December 29,
1972, the same paper imputed to the Executive an appeal "to diverse
groups involved in a conspiracy to undermine" his powers" under
martial law to desist from provoking a constitutional crisis ... which may
result in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statement may have
been, the idea implied therein was too clear an ominous for any
member of Congress who thought of organizing, holding or taking part
in a session of Congress, not to get the impression that he could hardly
do so without inviting or risking the application of Martial Law to him.
Under these conditions, I do not feel justified in holding that the failure
of the members of Congress to meet since January 22, 1973, was due
to their recognition, acquiescence in or conformity with the provisions
of the aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I prepared
to declare that the people's inaction as regards Proclamation No. 1102,
and their compliance with a number of Presidential orders, decrees
and/or instructions some or many of which have admittedly had
salutary effects issued subsequently thereto amounts, constitutes or
attests to a ratification, adoption or approval of said Proclamation No.
1102. In the words of the Chief Executive, "martial law connotespower
of the gun, meant coercion by the military,
and compulsion and intimidation." 83 The failure to use the gun against
those who comply with the orders of the party wielding the weapon
does not detract from the intimidation that Martial Law necessarily
connotes. It may reflect the good, reasonable and wholesome attitude
of the person who has the gun, either pointed at others, without pulling
the trigger, or merely kept in its holster, but not without warning that
he may or would use it if he deemed it necessary. Still, the intimidation
is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or acquiescence. This
is specially so when we consider that the masses are, by and

large, unfamiliar with the parliamentary system, the new form of

government introduced in the proposed Constitution, with the
particularity that it is not even identical to that existing in England and
other parts of the world, and that even experienced lawyers and social
scientists find it difficult to grasp the full implications of some provisions
incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is
well to remember that the same refers to a document certified to the
President for his action under the Constitution by the Senate
President and the Speaker of the House of Representatives, and
attested to by the Secretary of the Senate and the Secretary of the
House of Representatives, concerning legislative measures approved by
the two Houses of Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and credence and,
to this extent, it is conclusive upon the President and the judicial branch
of the Government, why should Proclamation No. 1102 merit less
consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If,
instead of being certified by the aforementioned officers of Congress,
the so-called enrolled bill were certified by, say, the President of the
Association of Sugar Planters and/or Millers of the Philippines, and the
measure in question were a proposed legislation concerning Sugar
Plantations and Mills sponsored by said Association, which even
prepared the draft of said legislation, as well as lobbied actually for its
approval, for which reason the officers of the Association, particularly,
its aforementioned president whose honesty and integrity are
unquestionable were present at the deliberations in Congress when
the same approved the proposed legislation, would the enrolled bill rule
apply thereto? Surely, the answer would have to be in the negative.
Why? Simply, because said Association President has absolutely no
official authority to perform in connection therewith, and, hence, his
certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of
Local Governments and Community Development about the tabulated
results of the voting in the Citizens Assemblies allegedly held all
over the Philippines and the records do not show that any such
certification, to the President of the Philippines or to the President
Federation or National Association of presidents of Provincial
Associations of presidents of municipal association presidents of barrio
or ward assemblies of citizens would not, legally and constitutionally,
be worth the paper on which it is written. Why? Because said
Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection
of a proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the department which,
according to Article X of the Constitution, should not and must not be
all participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the
Highest Court of the United States that courts "willnot stand
impotent before an obvious instance of a manifestly unauthorized
exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly
indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about
the procedure followed in these five (5) cases. In this connection, it
should be noted that the Court has not decided whether or not to give
due course to the petitions herein or to require the respondents to
answer thereto. Instead, it has required the respondents to comment on
the respective petitions with three (3) members of the voting to
dismiss them outright and then considers comments thus submitted
by the respondents as motions to dismiss, as well as set the same for
hearing. This was due to the transcendental nature of the main issue
raised, the necessity of deciding the same with utmost dispatch, and
the main defense set up by respondents herein, namely, the alleged
political nature of said issue, placing the same, according to
respondents, beyond the ambit of judicial inquiry and determination. If
this defense was sustained, the cases could readily be dismissed; but,
owing to the importance of the questions involved, a reasoned
resolution was demanded by public interest. At the same time,
respondents had cautioned against a judicial inquiry into the merits of
the issues posed on account of the magnitude of the evil consequences,
it was claimed, which would result from a decision thereon, if adverse to
the Government.
As a matter of fact, some of those issues had been raised in the
plebiscite cases, which were dismissed as moot and academic, owing to
the issuance of Proclamation No. 1102 subsequently to the filing of said
cases, although before the rendition of judgment therein. Still one of
the members of the Court (Justice Zaldivar) was of the opinion that the
aforementioned issues should be settled in said cases, and he,
accordingly, filed an opinion passing upon the merits thereof. On the
other hand, three (3) members of the Court Justices Barredo, Antonio
and Esguerra filed separate opinions favorable to the respondents in
the plebiscite cases, Justice Barredo holding "that the 1935 Constitution
has pro tanto passed into history and has been legitimately supplanted
by the Constitution in force by virtue of Proclamation 1102." 86 When
the petitions at bar were filed, the same three (3) members of the
Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either

view, believing that the main question that arose before the rendition of
said judgment had not been sufficiently discussed and argued as the
nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question.
Thus, apart from hearing the parties in oral argument for five (5)
consecutive days morning and afternoon, or a total of exactly 26
hours and 31 minutes the respective counsel filed extensive notes on
their or arguments, as well as on such additional arguments as they
wished to submit, and reply notes or memoranda, in addition to
rejoinders thereto, aside from a sizeable number of document in
support of their respective contentions, or as required by the Court. The
arguments, oral and written, submitted have been so extensive and
exhaustive, and the documents filed in support thereof so numerous
and bulky, that, for all intents and purposes, the situation is as if
disregarding forms the petitions had been given due course and the
cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the same
were being decided on the merits, and they have done so in their
individual opinion attached hereto. Hence, the resume of the votes cast
and the tenor of the resolution, in the last pages hereof, despite the
fact that technically the Court has not, as yet, formally given due
course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy, President
and President Pro Tempore respectively of the Senate, it being settled in
our jurisdiction, based upon the theory of separation of powers, that the
judiciary will not issue such writ to the head of a co-equal department,
like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said
case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my
vote is that the petitions therein should be given due course, there
being more thanprima facie showing that the proposed Constitution has
not been ratified in accordance with Article XV of the 1935 Constitution,
either strictly, substantially, or has been acquiesced in by the people or
majority thereof; that said proposed Constitution is not in force and
effect; and that the 1935 Constitution is still the Fundamental Law of
the Land, without prejudice to the submission of said proposed
Constitution to the people at a plebiscite for its ratification or rejection
in accordance with Articles V, X and XV of the 1935 Constitution and
the provisions of the Revised Election Code in force at the time of such
plebiscite.
Perhaps others would feel that my position in these cases overlooks
what they might consider to be the demands of "judicial
statesmanship," whatever may be the meaning of such phrase. I am
aware of this possibility, if not probability; but "judicial statesmanship,"
though consistent with Rule of Law, cannot prevail over the latter.
Among consistent ends or consistent values, there always is a
hierarchy, a rule of priority.
We must realize that the New Society has many achievements which
would have been very difficult, if not impossible, to accomplish under
the old dispensation. But, in and for the judiciary, statesmanship should
not prevail over the Rule of Law. Indeed, the primacy of the law or of
the Rule of Law and faithful adherence thereto are basic, fundamental
and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of
their individual opinions and/or concurrences as appended hereto, the
writer will now make, with the concurrence of his colleagues, a resume
or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views
expressed during the deliberations, it was agreed to synthesize the
basic issues at bar in broad general terms in five questions for purposes
of taking the votes. It was further agreed of course that each member
of the Court would expound in his individual opinion and/or concurrence
his own approach to the stated issues and deal with them and state (or
not) his opinion thereon singly or jointly and with such priority,
qualifications and modifications as he may deem proper, as well as
discuss thereon other related issues which he may consider vital and
relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues
herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or
political and therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional Convention
been ratified validly (with substantial, if not strict, compliance)
conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or
without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed
by the members of the Court in their respect opinions and/or
concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court, hold that the issue of the validity of
Proclamation No. 1102 presents a justiciable and non-political question.

Justices Makalintal and Castro did not vote squarely on this question,
but, only inferentially, in their discussion of the second question. Justice
Barredo qualified his vote, stating that "inasmuch as it is claimed there
has been approval by the people, the Court may inquire into the
question of whether or not there has actually been such an approval,
and, in the affirmative, the Court should keep hands-off out of respect
to the people's will, but, in negative, the Court may determine from
both factual and legal angles whether or not Article XV of the 1935
Constitution been complied with." Justices Makasiar, Antonio, Esguerra,
or three (3) members of the Court hold that the issue is political and
"beyond the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6)
members of the Court also hold that the Constitution proposed by the
1971 Constitutional Convention was not validly ratified in accordance
with Article XV, section 1 of the 1935 Constitution, which provides only
one way for ratification, i.e., "in an election or plebiscite held in
accordance with law and participated in only by qualified and duly
registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not
the 1973 Constitution has been validly ratified pursuant to Article XV, I
still maintain that in the light of traditional concepts regarding the
meaning and intent of said Article, the referendum in the Citizens'
Assemblies, specially in the manner the votes therein were cast,
reported and canvassed, falls short of the requirements thereof. In view,
however, of the fact that I have no means of refusing to recognize as a
judge that factually there was voting and that the majority of the votes
were for considering as approved the 1973 Constitution without the
necessity of the usual form of plebiscite followed in past ratifications, I
am constrained to hold that, in the political sense, if not in the orthodox
legal sense, the people may be deemed to have cast their favorable
votes in the belief that in doing so they did the part required of them by
Article XV, hence, it may be said that in its political aspect, which is
what counts most, after all, said Article has been substantially complied
with, and, in effect, the 1973 Constitution has been constitutionally
ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the
Court hold that under their view there has been in effect substantial
compliance with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in the
aforementioned proposed Constitution, no majority vote has been
reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that "the people have already accepted the 1973
Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold
that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of
their acceptance or repudiation of the proposed Constitution under
Martial Law. Justice Fernando states that "(I)f it is conceded that the
doctrine stated in some American decisions to the effect that
independently of the validity of the ratification, a new Constitution once
accepted acquiesced in by the people must be accorded recognition by
the Court, I am not at this stage prepared to state that such doctrine
calls for application in view of the shortness of time that has elapsed
and the difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant feature of
martial law." 88
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual
media vehicle restricted, (they) have no means of knowing, to the point
of judicial certainty, whether the people have accepted the
Constitution." 89
4. On the fourth question of relief, six (6) members of the Court,
namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so
voted on the strength of their view that "(T)he effectivity of the said
Constitution, in the final analysis, is the basic and ultimate question
posed by these cases to resolve which considerations other than
judicial, an therefore beyond the competence of this Court, 90 are
relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
Teehankee and myself voted to deny respondents' motion to dismiss
and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in
force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar,
Antonio and Esguerra hold that it is in force by virtue of the people's
acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro,
Fernando and Teehankee cast no vote thereon on the premise stated in
their votes on the third question that they could not state with judicial
certainty whether the people have accepted or not accepted the
Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself
voted that the Constitution proposed by the 1971 Constitutional
Convention is not in force;

with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the
four (4) dissenting votes of the Chief Justice and Justices Zaldivar,
Fernando and Teehankee, all the aforementioned cases are hereby
dismissed. This being the vote of the majority, there is no further
judicial obstacle to the new Constitution being considered in force and
effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the
proposal, submission, or ratification of constitutional amendments. It
has beenjudicially determined whether a proposed
amendment received the constitutional majority of votes (Dayton v. St.
Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v.
Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v.
Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National
Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5
Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104,
59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423);
whether a proposed amendment is a single amendment, within the
constitutional requirement that every amendment must be separately
submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v.
Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis.
318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont.
426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A.
[N.S.] 149); whether the failure to enter the resolution of submission
upon the legislative journals invalidates the amendment (Koehler v. Hill,
60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69
Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v.
Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac.
835, 3 Am. St. Rep. 895); whether the description of the amendment
and the form of the ballot are sufficient (Russell v. Croy, 164 M 69, 63
S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149;
Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether
the method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71
N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the
publication of the amendment or of a notice relative to it is sufficient
(Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy,
164 Mo. 69, 63 S.W. 849); whether the submission may be well by
resolution as by a legislative act approved by the executive (Com. v.
Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101
Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31
L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6
N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the amendment be
submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court
said: "It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise
of political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned
by the judiciary; but, with reference to the conditions precedent to
submitting a proposed amendment to a vote of the people, it has been
repeatedly held, by courts of the highest respectability, that it is within
the power of the judiciary to inquire into the question, even in a
collateral proceeding. ... It is to be noted that under section 1 of article
20 of the Constitution of the state no amendment can become a part of
the Constitution until ratified by a vote of the people. One prerequisite
is equally as essential as the other. The amendment must first receive
the requisite majority in the Legislature, and afterwards be adopted by
the requisite vote. ... It is the fact of a majority vote which makes the
amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in the
particular case the court was called upon to determine between rival
governments, or whether the Legislature, or some board or official,
had legally performed the duty imposed by the Constitution or statutes.
In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the
General Assembly, under the power granted by the Constitution, could
change the Constitution only in the manner prescribed by it, and that it
was the duty of the court to determine whether all prerequisites had
been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a
Constitution can be changes only by the peoplein convention or in a
mode described by the Constitution itself, and that if the latter mode is
adopted every requisite of the Constitution must be observed. 'It has
been said," says the court, "that certain acts are to be done, certain
requisitions are to be observed, before a change can be effected; but to
what purpose are these acts required, or these requisitions enjoined, if
the Legislature or any other department of the government

candispense with them. To do so would be to violate the instrument

which they are sworn to support; and every principle of public law and
sound constitutional policy requires the court to pronounce against
every amendment which is shown not to have been made in
accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state
may form an original Constitution, or abrogate an old one and form a
new one, at any time, without any political restriction, except the
Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution already in
existence, they can do it only by the method pointed out by the
Constitution to which the amendment is added. The power to amend a
Constitution by legislative action does not confer the power to break it,
any more than it confers the power to legislate on any other subject
contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W.
785, it was held that no amendments can be made to the Constitution
of the state without a compliance with the provisions thereof, both in
the passage of such amendment by the Legislature and the manner of
submitting it to the people. The courts have not all agreed as to the
strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the
court determined judicially whether an amendment to the Constitution
had been legally adopted. After approving the statement quoted
from Collier v. Frierson, supra, that 'we entertain no doubt that, to
change the Constitution in an other mode than by a convention, every
requisite which is demanded by the instrument itself must be observed,
and the omission of any one is fatal to the amendment,' the court held
that, 'as substance of right is grander and more potent than methods of
form,' there had been substantial compliance with the constitutional
requirement that a proposed amendment to the Constitution must
be entered at length on the legislative journal. It appears that the joint
resolution making submission simply provided that a proposition should
be submitted to the electors at the general election of 1880. It did not
declare that the machinery of the general election law should
control, or that any particular officers or board would receive, count, or
canvass the votes cast. But the existing election machinery was
adequate, and the votes were received, counted, and canvassed, and
the result declared as fully as though it had been in terms so
ordered. These methods had been followed in the adoption of previous
amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for
the election, yet in view of the very uncertainty of such provision
the past legislative history of similar propositions, theuniversal prior
acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before the people
of the question of the amendment for decision, and in view of the duty
cast upon the court taking judicial knowledge of anything affecting the
existence and validity of any law or portion of the Constitution, it must
be adjudged that the proposed amendment became part of the
Constitution. The effect was to hold that a provision of the Constitution
requiring the proposed amendment to be entered in full on the journals
was directory, and not mandatory. This liberal view was approved in
State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v.
Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been
universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any
sound legal principles, but contrary to them. Neither the
argument nor the conclusion can command our assent or approval. The
argument is illogical, and based on premises which are without any
sound foundation, and rests merely on assumption.' See, also, the wellconsidered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75
Pac. 222. Allthese cases concede the jurisdiction of the court to
determine whether, in submitting a proposed amendment to the
people, the Legislature legally observed the constitutional provisions as
to the manner of procedure. InLivermore v. Waite, 102 Cal. 113, 36 Pac.
424, 25 L.R.A. 312, the court, at the instance of a citizen and a
taxpayer, restrained the Secretary of State from taking steps to submit
to the people a proposed amendment to the Constitution agreed to by
the Legislature on the ground that the Legislature had not acted in
conformity with the Constitution and that the proposed amendment
was of such a character that it could not properly become a part of the
Constitution. The Supreme Court of Colorado, in People v. Sours, supra,
refused to exercise this authority.
"The entire question received elaborate consideration in Koehler v. Hill,
60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment,
which concededly had been adopted by the people, had not, before its
submission, been entered in full upon the legislative journals, as
required by the Constitution, and it was held that this was
a materialvariance in both form and substance from the constitutional
requirements, and that the amendment did not, therefore, become a
part of the Constitution. As to the claim that the question was political,
and not judicial, it was said that, while it is not competent for courts to
inquire into the validity of the Constitution and the form of government
under which they themselves exist, and from which they derive their
powers, yet, where the existing Constitution prescribes a method for its
own amendment, an amendment thereto, to be valid, must be adopted
in strict conformity to that method; and it is the duty of the courts in a
proper case, when an amendment does not relate to their own power or

functions, to inquire whether, in the adoption of the amendment, the

provisions of the existing Constitution have been observed, and, if
not, to declare the amendment invalid and of no force. This case was
followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed
amendment to the Constitution had been legally adopted was treated
as a judicial question. By the Constitution a proposed amendment was
required to be approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained 17
amendments. The next Legislature rejected 9 and adopted 8 of the
amendments, and submitted them to the people. The majority of the
people voted for their adoption; but it was contended that the
Constitution contemplated and required that the same bill and the
same amendments, without change, should approved by both
Legislatures, and that it did not follow because the second Legislature
adopted separately 8 out of 17amendments adopted by the first
Legislature, it would have adopted the 17, or any of them, if they had
been voted upon the second in the form adopted by the first body. The
substance of the contention was that there had not been a concurrence
of the two Legislatures on the same amendments, according to the
letter and spirit of the Constitution. The court held that the power of the
Legislature in submitting amendments could not be distinguished from
the powers of convention, and that, as the people had spoken and
ratified the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that
prior to 1876 a proposed amendment to Constitution could not be
submitted to the people at any other than a general election; but, as
the amendment under consideration had been submitted after the
Constitution been changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether
an amendment to the Constitution had been legally submitted and
adopted by the people was held to be judicial, and not political, in its
nature. The amendment under consideration changed the Constitution
by providing for an elective, instead of an appointive, judiciary. It was
contented that the amendments had been improperly submitted and
adopted by a majority of the qualified voters voting at election, as
required by the Constitution. The law did direct how the result of the
election should be determined. The Legislature by joint resolution
recited that the election had been duly held throughout the state, and,
as it appeared from the returns made to the Secretary of State, that
21,169 votes were cast in favor of, and 8,643 votes against, the
amendment, it resolved 'that said amendment be, and hereby
is, insertedinto the Constitution of the state of Mississippi as a part of
the Constitution.' In fact, the amendment was notsubmitted in the
manner prescribed by the Constitution, and it did not receive a majority
of all the qualified voters voting at the election. It was argued that the
rules prescribed by the Constitution "are all for the guidance of the
Legislature, and from the very nature of the thing the Legislature must
be the exclusive judge of all questions to be measured or determined
by these rules. Whether the question be political, and certainly a
legislative one, or judicial, to be determined by the courts, this section
of rules, not only of procedure, but of final judgment as well, confides to
the separate magistracy of the legislative department full power to
hear, consider, and adjudge that question. The Legislature puts the
question to the qualified electors. The qualified electors answer back to
the Legislature. "If it shall appear" to the Legislature that its question
has been answered in the affirmative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts have no
authority to speak at any stage of the proceedings between the
sovereign and the Legislature, and when the matter is thus concluded it
is closed, and the judiciary is as powerless to interfere as the
executive.' But it was held that the question whether the proposition
submitted to the voters constituted one, or more than one,
amendment, whether the submission was according to the
requirements of the Constitution, and whether the proposition was in
fact adopted, were all judicial, and not political, questions. 'We do not,'
said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by
the Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the
particular instance in which we are now acting, our duty to know what
the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult
and embarrassing duty, one which we have not sought, but one which,
like all others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it
was held that it was the duty of the judicial department of the
government to determine whether the legislative department or its
officers had observed the constitutional injunctions in attempting to
amend the Constitution, and to annul their acts if they had not done so.
The case is an interesting and well-considered one. The Constitution
provided the manner in which proposed amendments should be
submitted to the people, but did not provide a method for
canvassing the votes. The Legislature having agreed to certain
proposed amendments, passed an act for submitting the same to the
people. This statute provided for the transmission to the Secretary of
State of certificate showing the result of the voting throughout the
state, and made it the duty of the Governor at the designated time
summon four or more Senators, who, with the Governor, should
constitute a board of state canvassers to canvass and estimate the
votes for and against each amendment. This board was to determine

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

Separate Opinions

MAKALINTAL, J., concurring:

CASTRO, J., concurring:
The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima faciecase in their petitions
to justify their being given due course. Considering on the one hand the
urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the comments
were filed We considered them as motions to dismiss so that they could
be orally argued. As it turned out, the hearing lasted five days, morning
and afternoon, and could not have been more exhaustive if the
petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens
Assemblies as certified and proclaimed by the President on January 17,
1973 (Proclamation No. 1102) was not an act of ratification, let alone a
valid one, of the proposed Constitution, because it was not in
accordance with the existing Constitution (of 1935) and the Election
Code of 1971. Other grounds are relied upon by the petitioners in
support of their basic proposition, but to our mind they are merely
subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that
amendments (proposed either by Congress in joint session or by a
Convention called by it for the purpose) "shall be valid part of this
Constitution when approved by a majority of votes cast at an election at
which the amendments submitted to the people for their ratification."
At the time Constitution was approved by the Constitutional Convention
on February 8, 1935, and ratified in a plebiscite held on following May
14, the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a
procedure prescribed by statute ascertaining the people's choices
among candidates for public offices, or their will on important matters
submitted to the pursuant to law, for approval. It was in this sense that
word was used by the framers in Article XV (also in Articles VI and VII),
and in accordance with such procedure that plebiscites were held to
ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the
Constitution); 1940 (establishment of a bicameral legislature; eligibility
of the President and the Vice President for re election; creation of the
Commission of Elections); 1947 (Parity Amendment); and 1967
(increase in membership of the House of Representatives and eligibility
of members of Congress to run for the Constitutional Convention
without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials andplebiscites shall be conducted
in the manner provided by this Code." This is a statutory requirement
designed, as were the other election laws previously in force, to carry
out the constitutional mandate relative to the exercise of the right
suffrage, and with specific reference to the term "plebiscites," the
provision of Article XV regarding ratification of constitutional
amendments.
The manner of conducting elections and plebiscites provided by the
Code is spelled out in other sections thereof. Section 99 requires that
qualified voters be registered in a permanent list, the qualifications
being those set forth in Article V, Section 1, of the 1935 Constitution on
the basis of age (21), literacy and residence. These qualifications are
reiterated in Section 101 of the Election Code. Section 102 enumerates
the classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure for
registering voters, the records, of registration and the custody thereof,
the description and printing of official ballots, the actual casting of
votes and their subsequent counting by the boards of inspectors, the
rules for appreciation of ballots, and then the canvass and proclamation
of the results.
With specific reference to the ratification of the 1972 draft Constitution,
several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had
been convened pursuant to Resolution No. 2 passed by Congress on
March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and
considered part of the Constitution when approved by a majority of
the votes cast in an election at which they are submitted to the people
for their ratification pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite called for the
purpose and, except as herein provided, shall supersede the
Constitution of nineteen hundred and thirty-five and all amendments
thereto.
The same procedure is prescribed in Article XVI, Section 2, for the
ratification of any future amendment to or revision of the said
Constitution.
(3) After the draft Constitution was approved by the Constitutional
Convention on November 30, 1972 the said body adopted Resolution
No. 5843, proposing "to President Ferdinand E. Marcos that a decree be
issued calling aplebiscite for the ratification of the proposed New
Constitution on such appropriate date as he shall determine and
providing for the necessary funds therefor." Pursuant to said Resolution
the President issued Decree No. 73 on the same day, calling a plebiscite

to be held on January 15, 1973, at which the proposed Constitution

"shall be submitted to the people for ratification or rejection." The
Decree had eighteen (18) sections in all, prescribing in detail the
different steps to be taken to carry out the process of ratification, such
as: (a) publication of the proposed Constitution in English and Pilipino;
(b) freedom of information and discussion; (c) registration of voters: (d)
appointment of boards of election inspectors and designation of
watchers in each precinct; (e) printing of official ballots; (f) manner of
voting to insure freedom and secrecy thereof; (g) canvass of plebiscite
returns; and (h) in general, compliance with the provisions of the
Election Code of 1971, with the Commission on Elections exercising its
constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view from the
framers of the 1935 Constitution through all the Congresses since then
to the 1971 Constitutional Convention amendments to the
Constitution should be ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated in only by
qualified and duly registered voters. Indeed, so concerned was this
Court with the importance and indispensability of complying with the
mandate of the (1935) Constitution in this respect that in the recent
case of Tolentino vs. Commission on Elections, No. L-34150, October 16,
1971 (41 SCRA 702), a resolution of the (1971) Constitutional
Convention submitting a proposed amendment for ratification to a
plebiscite to be held in November 1971 was declared null and void. The
amendment sought to reduce the voting age from twenty-one to
eighteen years and was approved by the Convention for submission to
a plebiscite ahead of and separately from other amendments still being
or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such
other amendments later. This Court held that such separate submission
was violative of Article XV, Section 1, of the Constitution, which
contemplated that "all the amendments to be proposed by the same
Convention must be submitted to the people in a single "election" or
plebiscite." * Thus a grammatical construction based on a singular,
instead of plural, rendition of the word "election" was considered a
sufficient ground to rule out the plebiscite which had been called to
ratify a proposed amendment in accordance with the procedure and
under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification
of just one amendment, as in Tolentino vs. COMELEC, but the
ratification of an entire charter setting up a new form of government;
and the issue has arisen not because of a disputed construction of one
word or one provision in the 1935 Constitution but because no election
or plebiscite in accordance with that Constitution and with the Election
Code of 1971 was held for the purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft
Constitution were created by Presidential Decree No. 86 dated
December 31, 1972, "to broaden the base of citizen participation in the
democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues." The Assemblies
"shall consist of all persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the lists of Citizen Assembly
members kept by the barrio, district or ward secretary." By Presidential
Decree No. 86-A, dated January 5, 1973, the Assemblies were convened
for a referendum between January 10 and 15, to "consider vital national
issues now confronting the country, like the holding of the plebiscite on
the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in
November 1973."
On January 5, 1973 the newspapers came out with a list of four
questions to be submitted to the Citizens Assemblies, the fourth one
being as follows: "How soon would you like plebiscite on the new
Constitution to be held?" It should be noted in this connection that the
President had previously announced that he had ordered the
postponement of plebiscite which he had called for January 15, 1973
(Presidential Decree No. 73) for the ratification of the Constitution, and
that he was considering two new dates for the purpose February 19
or March 5; that he had ordered that the registration of voters (pursuant
to Decree No. 73) be extended to accommodate new voters; and that
copies of the new Constitution would be distributed in eight dialects the
people. (Bulletin Today, December 24, 1972.)
On January 10, 1973 it was reported that one more question would be
added to the original four which were to be submitted to the Citizens
Assemblies. The question concerning plebiscite was reworded as
follows: "Do you like the plebiscite to be held later?" The implication, it
may likewise be noted, was that the Assemblies should express their
views as to the plebiscite should be held, not as to whether or not it
should be held at all.
The next day, January 11, it was reported that six additional questions
would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 accordance
with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want the next
elections to be called?

(6) Do you want martial law to continue? [Bulletin Today, January 11,
1973; emphasis supplied].
Appended to the six additional questions above quoted were the
suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is
to be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for reforms
to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to
exercise his powers with more authority. We want him to be strong and
firm so that he can accomplish all his reform program and establish
normalcy in the country. If all other measures fail, we want President
Marcos to declare a revolutionary government along the lines of the
new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the
Assemblies deemed equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to question No. 3.
Strangely, however, it was not similarly suggested that an unfavorable
vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in
which the voting was conducted in the Citizen Assemblies, assuming
that such voting was held, was not within the intendment of Article XV,
Section 1, of the 1935 Constitution nor in accordance with the Election
Code of 1971. The referendum can by no means be considered as the
plebiscite contemplated in Section 2 of said Code and in Article XVII,
Section 16, of the draft Constitution itself, or as the election intended
by Congress when it passed Resolution No. 2 on March 16, 1967 calling
a Convention for the revision of the 1935 Constitution. The Citizens
Assemblies were not limited to qualified, let alone registered voters, but
included all citizens from the age of fifteen, and regardless of whether
or not they were illiterates, feeble-minded, or ex convicts * these
being the classes of persons expressly disqualified from voting by
Section 102 of the Election Code. In short, the constitutional and
statutory qualifications were not considered in the determination of who
should participate. No official ballots were used in the voting; it was
done mostly by acclamation or open show of hands. Secrecy, which is
one of the essential features of the election process, was not therefore
observed. No set of rules for counting the votes or of tabulating them
and reporting the figures was prescribed or followed. The Commission
on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of
elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102
the overwhelming majority of all the members of the Citizens
Assemblies had voted for the adoption of the proposed Constitution
there was a substantial compliance with Article XV, Section 1, of the
1935 Constitution and with the Election Code of 1971. The suggestion
misses the point entirely. It is of the essence of a valid exercise of the
right of suffrage that not only must a majority or plurality of the voters
carry the day but that the same must be duly ascertained in
accordance with the procedure prescribed by law. In other words the
very existence of such majority or plurality depends upon the manner
of its ascertainment, and to conclude that it exists even if it has not
been ascertained according to law is simply to beg the issue, or to
assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions
of the Election Law as long as it is certified that a majority of the
citizens had voted favorably or adversely on whatever it was that was
submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the
Citizens Assemblies, as certified by the President in Proclamation No.
1102, was not in accordance with the constitutional and statutory
procedure laid down for the purpose does not quite resolve the
questions raised in these cases. Such a finding, in our opinion, is on a
matter which is essentially justiciable, that is, within the power of this
Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the
Election Code and of other related laws and official acts. No question of
wisdom or of policy is involved. But from this finding it does not
necessarily follow that this Court may justifiably declare that the

Constitution has not become effective, and for that reason give due
course to these petitions or grant the writs herein prayed for. The
effectivity of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the
competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process
adopted by the Citizens Assemblies and on that premise would have
this Court grant the reliefs they seek. The respondents represented by
the Solicitor General, whose theory may be taken as the official position
of the Government, challenge the jurisdiction of this Court on the
ground that the questions raised in the petitions are political and
therefore non-justiciable, and that in any case popular acquiescence in
the new Constitution and the prospect of unsettling acts done in
reliance thereon should caution against interposition of the power of
judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in
their respective capacities as President and President Pro Tempore of
the Senate of the Philippines, and through their counsel, Senator Arturo
Tolentino, likewise invoke the political question doctrine, but on a
ground not concurred in by the Solicitor General, namely, that approval
of the 1973 Constitution by the people was made under a revolutionary
government, in the course of a successful political revolution, which
was converted by act of the people to the present de juregovernment
under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court
for adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of
the entire Government behind it; and the task of this Court was simply
to determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The
process employed was one of interpretation and synthesis. In the cases
at bar there is no such assumption: the Constitution (1935) has been
derogated and its continued existence as well as the validity of the act
of derogation is issue. The legal problem posed by the situation is
aggravated by the fact that the political arms of the Government the
Executive Departments and the two Houses of Congress have
accepted the new Constitution as effective: the former by organizing
themselves and discharging their functions under it, and the latter by
not convening on January 22, 1973 or at any time thereafter, as
ordained by the 1935 Constitution, and in the case of a majority of the
members by expressing their option to serve in the Interim National
Assembly in accordance with Article XVIII, Section 2, of the 1973
Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents
Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground
for the invocation of the political-question doctrine. In support of his
theory, Senator Tolentino contends that after President Marcos declared
martial law on September 21, 1972 (Proclamation No. 1081) he
established a revolutionary government when he issued General Order
No. 1 the next day, wherein he proclaimed "that I shall govern the
nation and direct the operation of the entire government, including all
its agencies and instrumentalities, in my capacity, and shall exercise all
the powers and prerogatives appurtenant and incident to my position
as such Commander-in-Chief of all the Armed Forces of the Philippines."
By this order, it is pointed out, the Commander-in-Chief of the Armed
Forces assumed all the powers of government executive, legislative,
and judicial; and thereafter proceeded to exercise such powers by a
series of Orders and Decrees which amounted to legislative enactments
not justified under martial law and, in some instances, trenched upon
the domain of the judiciary, by removing from its jurisdiction certain
classes of cases, such as "those involving the validity, legality, or
constitutionality of Proclamation No. 1081, or of any decree, order or
act issued, promulgated or performed by me or by my duly designated
representative pursuant thereto." (General Order No. 3 as amended by
General Order No. 3-A, dated September 24, 1972.) The ratification by
the Citizens Assemblies, it is averred, was the culminating act of the
revolution, which thereupon converted the government into a de
jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the
1973 Constitution and that such ratification as well as the
establishment of the government thereunder formed part of a
revolution, albeit peaceful, then the issue of whether or not that
Constitution has become effective and, as necessary corollary, whether
or not the government legitimately functions under it instead of under
the 1935 Constitution, is political and therefore non-judicial in nature.
Under such a postulate what the people did in the Citizen Assemblies
should be taken as an exercise of the ultimate sovereign power. If they
had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not
be the least doubt that their act would be political and not subject to
judicial review but only to the judgment of the same body politic act, in
the context just set forth, is based on realities. If a new government
gains authority and dominance through force, it can be effectively
challenged only by a stronger force; judicial dictum can prevail against
it. We do not see that situation would be any different, as far as the
doctrine of judicial review is concerned, if no force had been resorted to
and the people, in defiance of the existing Constitution but peacefully
because of the absence of any appreciable opposition, ordained a new

Constitution and succeeded in having the government operate under it.

Against such a reality there can be no adequate judicial relief; and so
courts forbear to take cognizance of the question but leave it to be
decided through political means.
The logic of the political-question doctrine is illustrated in statement of
the U.S. Supreme Court in a case * relied upon, curiously enough, by
the Solicitor General, who disagrees with the revolutionary government
theory of Senator Tolentino. The case involved the issue of which of two
opposing governments struggling for supremacy in the State of Rhode
Island was the lawful one. The issue had previously come up in several
other cases before the courts of the State, which uniformly held that
the inquiry belonged to the political power and not to the judicial.
Commenting on the ruling thus arrived at, the U.S. Supreme Court said:
"And if a State court should enter upon the inquiry proposed in this
case, and should come to the conclusion that the government under
which it acted had been put aside and displaced by an opposing
government, it would cease to be a court, and incapable of pronouncing
a judicial decision upon the question it undertook to try. If it decides at
all as a court, it necessarily affirms the existence and authority of the
government under which it is exercising judicial power." In other words,
since the court would have no choice but to decide in one way alone in
order to be able to decide at all, the question could not be considered
proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden
would be applicable in the cases at bar only on the premise that the
ratification of the Constitution was a revolutionary act and that the
government now functioning it is the product of such revolution.
However, we are not prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification,
several significant circumstances may be noted. (1) The Citizens
Assemblies were created, according to Presidential Decree No. 86, "to
broaden the base of citizen participation in the democratic process and
to afford ample opportunities for the citizenry to express their views on
important national issues." (2) The President announced, according to
the Daily Express of January 2, 1973, that "the referendum will be in the
nature of a loose consultation with the people." (3) The question, as
submitted to them on the particular point at issue here, was "Do you
a approve of the Constitution?" (4) President Marcos, in proclaiming
that the Constitution had been ratified, stated as follows: "(S)ince the
referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be
deemed ratified by the Filipino people." (5) There was not enough time
for the Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were
submitted to them. In fact the plebiscite planned for January 15, 1973
under Presidential Decree No. 73 had been postponed to an indefinite
date, the reasons for the postponement being, as attributed to the
President in the newspapers, that "there was little time to campaign for
or against ratification" (Daily Express, Dec. 22, 1972); that he would
base his decision (as to the date, of the plebiscite) on the compliance
by the Commission (on Elections) on the publication requirement of the
new Charter and on the position taken by national leaders" (Daily
Express, Dec. 23, 1972); and that "the postponement would give us
more time to debate on the merits of the Charter." (Bulletin Today, Dec.
24, 1972.)
The circumstances above enumerated lead us to the conclusion that
the Citizens Assemblies could not have understood the referendum to
be for the ratification of the Constitution, but only for the expression of
their views on a consultative basis. Indeed, if the expression of those
views had been intended as an act of ratification (or of rejection as a
logical corollary) there would have been no need for the Katipunan
ng mga Barangay to recommend that the Constitution should already
be deemed ratified, for recommendation imports recognition of some
higher authority in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim
that the Constitution had been ratified and had come into effect. The
more relevant consideration, therefore, as far as we can see, should be
as to what the President had in mind in convening the Citizens
Assemblies, submitting the Constitution to them and proclaiming that
the favorable expression of their views was an act of ratification. In this
respect subjective factors, which defy judicial analysis and adjudication,
are necessarily involved.
In positing the problem within an identifiable frame of reference we find
no need to consider whether or not the regime established by President
Marcos since he declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies was a
revolutionary one. The pivotal question is rather whether or not the
effectivity of the said Constitution by virtue of Presidential Proclamation
No. 1102, upon the recommendation of theKatipunan ng mga Barangay,
was intended to be definite and irrevocable, regardless of noncompliance with the pertinent constitutional and statutory provisions
prescribing the procedure for ratification. We must confess that after
considering all the available evidence and all the relevant
circumstances we have found no reasonably reliable answer to the
question. On one hand we read, for instance, the following public
statements of the President:
Speaking about the proclamation of martial law, he said:

I reiterate what I have said in the past: there is no turning back for our
people.
We have committed ourselves to this revolution. We have pledged to it
our future, our fortunes, our lives, our destiny. We have burned our
bridges behind us. Let no man misunderstand the strength of our
resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17,
1973, the President said the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal
matters, on justiciable matters, on matters that may come before the
experts and interpreters of the law. But we cannot disqualify the people
from speaking on what we and the people consider purely political
matters especially those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly
those that refer to the form of government which the people want ...
The implications of disregarding the people's will are too awesome to
be even considered. For if any power in government should even dare
to disregard the people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they
will no longer tolerate any attempt to undermine the stability of their
Republic; they will rise up in arms not in revolt against the Republic but
in protection of the Republic which they have installed. It is quite clear
when the people say, we ratify the Constitution, that they mean they
will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the
President made the day before, from which the following portion is
quoted:
... the times are too grave and the stakes too high for us permit the
customary concessions to traditional democratic process to hold back
our people's clear and unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by these
extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the
President made pointed reference to "the demand of some of our
citizens ... that when all other measures should fail, that the President
be directed to organize and establish a Revolutionary Government," but
in the next breath added: "... if we do ratify the Constitution, how can
we speak of Revolutionary Government? They cannot be compatible ..."
"(I)t is my feeling," he said, "that the Citizens' Assemblies which
submitted this recommendation merely sought articulate their
impatience with the status quo that has brought about anarchy,
confusion and misery to the masses ..." The only alternatives which the
President clearly implied by the foregoing statements were the
ratification of the new Constitution and the establishment of a
revolutionary government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been ratified. The third obvious
alternative was entirely ruled out, namely, a return to the 1935
Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear:
rather than return to such status quo, he would heed the
recommendation of the Citizens' Assemblies to establish a revolutionary
government, because that would be the only other way to carry out the
reforms he had envisioned and initiated reforms which, in all fairness
and honesty, must be given credit for the improved quality of life in its
many aspects, except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly
unmistakable, in the foregoing pronouncements, it is that the step
taken in connection with the ratification of the Constitution was meant
to be irreversible, and that nothing anyone could say would make the
least difference. And if this is a correct and accurate assessment of the
situation, then we would say that since it has been brought about by
political action and is now maintained by the government that is in
undisputed authority and dominance, the matter lies beyond the power
of judicial review.
On the other hand, by avowals no less significant if not so emphatic in
terms, President Marcos has professed fealty to the Constitution. In
"Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of
individual and social change ... but that in a democratic society,
revolution is of necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the
nation:
I have proclaimed martial law in accordance with the powers vested in
the President by the Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions.
The Government of the Republic of the Philippines which was
established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the
Constitution to save the Republic and reform our society...
I have had to use this constitutional power in order that we may not
completely lose the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the
stronger powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek
Magazine (published in the issue of January 29, 1973), the following
appears:
xxx xxx xxx

Q. Now that you have gotten off the constitutional track, won't you be
in serious trouble if you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am
doing is in accordance with the 1935 Constitution. The only thing is that
instead of 18-year-olds voting, we have allowed 15-year-olds the right
to vote. But the 15-year-olds of today are high-school students, if not
graduates, and they are better informed than my contemporaries at
that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through is
sufficient cause to proclaim martial law but at the very least there is a
danger of rebellion because so many of our soldiers have been killed.
You must remember this (martial law provision) was lifted from the
American legislation that was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of
action to pursue belongs to the President. We have earlier made
reference to subjective factors on which this Court, to our mind, is in no
position to pass judgment. Among them is the President's own
assessment of the will of the people as expressed through the Citizens
Assemblies and of the importance of the 1973 Constitution to the
successful implementation of the social and economic reforms he has
started or envisioned. If he should decide that there is no turning back,
that what the people recommended through the Citizens Assemblies, as
they were reported to him, demand that the action he took pursuant
thereto be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of ratification that was
followed was not in accordance with the 1935 Constitution and related
statutes, we have discharged our sworn duty as we conceive it to be.
The President should now perhaps decide, if he has not already
decided, whether adherence to such procedure is weighty enough a
consideration, if only to dispel any cloud of doubt that may now and in
the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for
resolution is whether or not the new Constitution, since its submission
to the Citizens Assemblies, has found acceptance among the people,
such issue being related to the political question theory propounded by
the respondents. We have not tarried on the point at all since we find
no reliable basis on which to form a judgment. Under a regime of
martial law, with the free expression of opinions through the usual
media vehicles restricted, we have no means of knowing, to the point of
judicial certainty, whether the people have accepted the Constitution.
In any event, we do not find the issue decisive insofar as our vote in
these cases is concerned. To interpret the Constitution that is judicial.
That the Constitution should be deemed in effect because of popular
acquiescence that is political, and therefore beyond the domain of
judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than
mere reiterations of the Supplemental Petitions filed by Counsel
Lorenzo M. Taada on January 15, 1973 in the so called Plebiscite Cases
decided by this Court on January 22, 1978. Of course, there are
amplifications of some of the grounds previously alleged and in the
course of the unprecedented five-day hearing that was held from
February 12 to 16 last, more extensive and illuminating arguments
were heard by Us, but, in my estimation, and with due recognition of
the sincerety, brilliance and eloquence of counsels, nothing more
cogent and compelling than what had already been previously
presented by Counsel Taada is before Us now. Accordingly, I cannot
see any reason why I should change the position I took in regard to the
earlier cases. I reiterate, therefore, the vote I cast when these petitions
were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before
the Court and the significance to our people and in history of the
individual stands of the members of the Court in relation to said issues
and to the final outcome of these cases, and considering that I reserved
before the filing of a more extended opinion, I will take this opportunity
to explain further why I hold that the 1973 Constitution is already in
force, if only to clarify that apart from the people's right of revolution to
which I made pointed reference in my previous opinion, I can see now,
after further reflection, that the vote of the people in the referendum in
the Citizens Assemblies held on January 10 to 15, 1973, upon the result
of which Proclamation 1102 is based, may be viewed more importantly
as a political act than as a purely legal one with the result that such
vote to consider the 1973 Constitution as ratified without the necessity
of holding a plebiscite in the form followed in the previous ratification
plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage,
1939 of the amendments to the Ordinance Appended to the
Constitution, 1940 of the re-election of the President, the bicameral
legislature and the Commission on Elections, 1947 of the parity
amendment and 1967, rejecting the proposed increase in the members
of the House of Representatives and eligibility of members of Congress
to the Constitutional Convention, may be deemed as a valid ratification
substantially in compliance with the basic intent of Article XV of the
1935 Constitution. If indeed this explanation may be considered as a
modification of my rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the enforceability of the

new Constitution is even firmer now than ever before. As I shall

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

WHEREAS, the people would like the citizens assemblies to conduct

immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute
the base for citizen participation in governmental affairs and their
collective views shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated into
concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national
issues now confronting the country, like the holding of the plebiscite on
the new Constitution, the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of elections in
November 1973, and others in the future, which shall serve as guide or
basis for action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between January
10 and 15, 1973, a referendum on important national issues, including
those specified in paragraph 2 hereof, and submit results thereof to the
Department of Local Governments Community Development
immediately thereafter, pursuant to express will of the people as
reflected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No.
86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the
people believe that the submission of the proposed Constitution to the
Citizens Assemblies or Barangays should be taken as a plebiscite in
itself in view of the fact that freedom of debate has always been limited
to the leadership in political, economic and social fields, and that it is
now necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973
and that the initial referendum shall include the matter of ratification of
the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies
thus created started the referendum which was held from said date to
January 15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the
government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters
were furnished "comments" on the said questions more or less
suggestive of the answer desired. It may assumed that the said
"comments" came from official sources, albeit specifically unidentified.
As petitioners point out, the most relevant of these "comments" were
the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is to
be convened at all, it should not be done so until after at least seven (7)

years from the approval of the New Constitution by the Citizens

Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution then the new
Constitution should be deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise,
that the results of the referendum were determined in the following
manner:
Thereafter, the results of the voting were collated and sent to the
Department of Local Governments. The transmission of the results was
made by telegram, telephone, the provincial government SSB System in
each province connecting all towns; the SSB communication of the
PACD connecting most provinces; the Department of Public Information
Network System; the Weather Bureau Communication System
connecting all provincial capitals and the National Civil Defense
Network connecting all provincial capitals. The certificates of results
were then flown to Manila to confirm the previous figures received by
the aforementioned means of transmission. The certificates of results
tallied with the previous figures taken with the exception of few cases
of clerical errors.
The Department adopted a system of regionalizing the receiving
section of the Citizens Assemblies operation at the Department wherein
the identity of the barrio and the province was immediately given to a
staff in charge of each region. Every afternoon at 2:00 o'clock, the 11
regions submitted the figures they received from the field to the central
committee to tabulate the returns. The last figures were tabulated at 12
midnight of January 16, 1973 and early morning of January 17, 1973
and were then communicated to the President by the Department of
Local Governments.
The development culminated in the issuance by the President of
Proclamation 1102 on January 17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE
FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventyone Constitutional Convention is subject to ratification by the Filipino
people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities
and in districts/wards in chartered cities pursuant to Presidential Decree
No. 6, dated December 31, 1972, composed of all persons who are
residents of the barrio, district or ward for at least six months, fifteen
years of age or over, citizens of the Philippines and who are registered
in the list of Citizen Assembly members kept by the barrio, district or
ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to
broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizen to express their views on
important national issues;
WHEREAS, responding to the clamor of the people an pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before Citizens' Assemblies or Barangays: Do you
approve of the New Constitution? Do you still want a plebiscite to be
called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty one (14,976,561) members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty nine
(743,869) who voted for its rejection; while on the question as to
whether or not the people would still like a plebiscite to be called to
ratify the new Constitution fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was
no need for plebiscite and that the vote of the Barangays (Citizens
Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninetyfive (95) percent of the members of the Barangays (Citizen Assemblies)
are in favor of the New Constitution, the Katipunan ng Mga Barangay
has strongly recommended that the new Constitution should already be
deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelmingly majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which
were filed by different petitioners during the first half of December
1972. 1 Their common target then was Presidential Decree No. 73, but
before the said cases could be decided, the series of moves tending in
effect to make them moot and academic insofar as they referred
exclusively to the said Presidential Decree began to take shape upon
the issuance of Presidential Decree No. 86-A, quoted above. And when
Presidential Decree No. 86-B, also above quoted, was issued and the six

additional questions which were first publicized on January 11, 1973

were known, together with the "comments", petitioners sensed that a
new and unorthodox procedure was being adopted to secure approval
by the people of the new Constitution, hence Counsel Taada, not being
satisfied with the fate of his urgent motion for early decision of the
above ten cases dated January 12, 1973, filed on January 15, 1973, his
supplemental motion seeking the prohibition against and injunction of
the proceedings going on. Principal objective was to prevent that the
President be furnished the report of the results of the referendum and
thereby disable him from carrying out what petitioners were
apprehensively foreseeing would be done the issuance of some kind
of proclamation, order or decree, declaring that the new Constitution
had been ratified. Reacting swiftly, the Court resolved on the same day,
January 15, which was Monday, to consider the supplemental motion as
a supplemental petition and to require the respondents to answer the
same the next Wednesday, January 17th, before the hour of the hearing
of the petition which set for 9:30 o'clock in the morning of that day. The
details what happened that morning form part of the recital of facts the
decision rendered by this Court in the ten cases on January 22, 1973
and need not be repeated here. Suffice it to state no that before the
hearing could be closed and while Counsel Taada was still insisting on
his prayer for preliminary injunction or restraining order, the Secretary
of Justice arrived and personally handed to the Chief Justice a copy
Proclamation 1102 which had been issued at about 11:00 o'clock that
same morning. In other words, the valiant and persistent efforts of
petitioners and their counsels were overtaken by adverse
developments, and in the mind of the majority of the members of the
Court, the cases had become academic. For my part, I took the view
that even on the basis of the supplemental petition and the answer
thereto filed by respondents, the Court could already decide on the
fundamental issue of the validity Proclamation 1102, as Justices
Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel
Taada's pleading and argument had anticipated its issuance, but the
majority felt it was not ready to resolve the matter, for lack, according
them, of full ventilation, and so, the decision reserved petitioners the
filing of the "appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although
believed to be inconsequential by my learned brethren, I strongly feel
needs special attention. I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued
as President and President Pro Tempore of the Senate, to the effect that
change in the composition of the Supreme Court provided for the 1973
Constitution, from the 11-man tribunal under the 1935 Constitution to a
15-man Court, makes of these cases which were filed after January 17,
1973 the date when Proclamation 1102 declared the new Constitution
as ratified, political nature and beyond our jurisdiction. The main
consideration submitted in this connection is that inasmuch as the
number votes needed for a decision of this Court has been increased
from six to eight in ordinary cases and from eight to ten for the
declaration of unconstitutionality of a treaty, executive agreement 2 or
law, the Court would have to resolve first as a prejudicial question
whether the Court is acting in these cases as the 15-man or the 11-man
Court, in which event, it would be faced with the dilemma that if it acts
either as the former or as the latter, it would be prejudging the very
matter in issue one way or the other, and, in effect, it would be
choosing between two constitutions, which is a political determination
not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily
preclude this Court from taking a definite stand on whether the Court is
acting in these cases as the 15-Man or the 11-man Court. I feel very
strongly that the issue should not be ignored or dodged, if only to make
the world know that the Supreme Court of the Philippines is never
incognizant of the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates directly to its own
composition. What a disgrace it would be to admit that this Supreme
Court does not know, to use a common apt expression, whether it is fish
or fowl. Withal, scholars and researchers who might go over our records
in the future will inevitably examine minutely how each of us voted and
upon what considerations we have individually acted, and, indeed,
doubts may arise as to whether or not, despite the general result we
might announce, there had been the requisite number of votes for a
valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man
Court, only six votes would suffice to declare Proclamation 1102
ineffective, and if upon analysis of our respective opinions it should be
inferable therefrom that six of us have considered the matter before the
Court as justiciable and at the same time have found the procedure of
ratification adopted in Presidential Decrees 86-A and 86-B and related
orders of the President as not being in conformity with Article XV of the
old Constitution, a cloud would exist as to efficacy of the dispositive
portion of Our decision dismiss these cases, even if we have it
understood that by the vote of justices in favor of such dismissal, We
intended to mean the implementation or enforcement of the new
Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation and
as a member of the Supreme Court, last thing I should knowingly

countenance is uncertainty as to the juridical significance of any

decision of the Court which is precisely being looked upon as the haven
in which doubts are supposed to be authoritatively dispelled. Besides,
from very nature of things, one thing is indubitably beyond dispute
we cannot act in both capacities of a 15-man and an 11-man Court at
the same time, in like manner that it is inconceivable that the 1935 and
1973 Constitution can be considered by Us both in force. Our
inescapable duty is to make a choice between them, according to what
law and other considerations inherent to our function dictate. I cannot
bear the thought that someone may someday say that the Supreme
Court of the Philippines once decided a case without knowing the basis
of its author to act or that it was ever wanting in judicial courage to
define the same.
Accordingly, with full consciousness of my limitations but compelled by
my sense of duty and propriety to straighten out this grave of issue
touching on the capacity in which the Court acting in these cases, I hold
that we have no alternative but adopt in the present situation the
orthodox rule that when validity of an act or law is challenged as being
repugnant constitutional mandate, the same is allowed to have effect
until the Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that the new
Constitution is in force and that We are acting in these cases as the 15man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two
constitutions. The truth of matter is simply that in the normal and
logical conduct governmental activities, it is neither practical nor wise
to defer the course of any action until after the courts have ascertained
their legality, not only because if that were to be the rule, the
functioning of government would correspondingly be undesirably
hesitative and cumbersome, but more importantly, because the courts
must at the first instance accord due respect to the acts of the other
departments, as otherwise, the smooth running of the government
would have to depend entirely on the unanimity of opinions among all
its departments, which is hardly possible, unless it is assumed that only
the judges have the exclusive prerogative of making and enforcing the
law, aside from being its sole interpreter, which is contrary to all norms
of juridical and political thinking. To my knowledge, there is yet no
country in the world that has recognized judicial supremacy as its basic
governmental principle, no matter how desirable we might believe the
idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our
acting on the assumption that this Court is still functioning under the
1935 Constitution. It is undeniable that the whole government,
including the provincial, municipal and barrio units and not excluding
the lower courts up to the Court of Appeals, is operating under the 1973
Constitution. Almost daily, presidential orders and decrees of the most
legislative character affecting practically every aspect of governmental
and private activity as well as the relations between the government
and the citizenry are pouring out from Malacaang under the authority
of said Constitution. On the other hand, taxes are being exacted and
penalties in connection therewith are being imposed under said orders
and decrees. Obligations have been contracted and business and
industrial plans have been and are being projected pursuant to them.
Displacements of public officials and employees in big numbers are
going on in obedience to them. For the ten justices of the Supreme
Court to constitute an island of resistance in the midst of these
developments, which even unreasoning obstinacy cannot ignore, much
less impede, is unimaginable, let alone the absurd and complicated
consequences such a position entails in the internal workings within the
judiciary amount its different components, what with the lower courts
considering such orders and decrees as forming part of the law of the
land in making their orders and decisions, whereas the Supreme Court
is holding, as it were, their effectivity at bay if it is not being indifferent
to or ignoring them.
It is suggested that the President, being a man of law, committed to
abide by the decision of the Supreme Court, and if the Court feels that
it cannot in the meantime consider the enforcement of the new
Constitution, he can wait for its decision. Accepting the truth of this
assertion, it does necessarily follow that by this attitude of the
President, considers the Supreme Court as still operating under the
Constitution. Quite on the contrary, it is a fact that he has given
instructions for the payment of the justices in accordance with the rate
fixed in the New Constitution. Not only that, official alter ego, the
Secretary of Justice, has been shoving this Court, since January 18,
1973, all matters related to the administrative supervision of the lower
courts which by the new charter has been transferred from the
Department of Justice to the Supreme Court, and as far as I know,
President has not countermanded the Secretary's steps in that
direction. That, on the other hand, the President has not augmented the
justices of the Court to complete the prescribed number of fifteen is, in
my appraisal, of no consequence considering that with the presence of
ten justices who are the Court now, there is a working quorum, and the
addition of new justices cannot in anyway affect the voting on the
constitutional questions now before Us because, while there sufficient
justices to declare by their unanimous vote illegality of Proclamation
1102, the votes of the justices to added would only be committed to
upholding the same, since they cannot by any standard be expected to
vote against legality of the very Constitution under which they would be
appointed.

Moreover, what makes the premise of presumptive valid preferable and,

even imperative, is that We are dealing here with a whole constitution
that radically modifies or alters only the form of our government from
presidential parliamentary but also other constitutionally institutions
vitally affecting all levels of society. It is, to mind, unrealistic to insist on
that, fundamentally, the 1973 Constitution is the same 1935
Constitution, with a few improvements. A cursory perusal of the former
should convince anyone that it is in essence a new one. While it does
retain republicanism as the basic governmental tenet, the institutional
changes introduced thereby are rather radical and its social orientation
is decidedly more socialistic, just as its nationalistic features are
somewhat different in certain respects. One cannot but note that the
change embraces practically every part of the old charter, from its
preamble down to its amending and effectivity clauses, involving as
they do the statement of general principles, the citizenship and
suffrage qualifications, the articles on the form of government, the
judiciary provisions, the spelling out of the duties and responsibilities
not only of citizens but also of officers of the government and the
provisions on the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the general provisions.
What is more, the transitory provisions notably depart from traditional
and orthodox views in that, in general, the powers of government
during the interim period are more or less concentrated in the
President, to the extent that the continuation or discontinuance of what
is now practically a one-man-rule, is even left to his discretion. Notably,
the express ratification of all proclamations, orders, decrees and acts
previously issued or done by the President, obviously meant to
encompass those issued during martial law, is a commitment to the
concept of martial law powers being implemented by President Marcos,
in defiance of traditional views and prevailing jurisprudence, to the
effect that the Executive's power of legislation during a regime of
martial law is all inclusive and is not limited to the matters demanded
by military necessity. In other words, the new constitution unlike any
other constitution countenances the institution by the executive of
reforms which normally is the exclusive attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article
XVII which provides that this constitution shall "supersede the
Constitution of nineteen hundred and thirty-five and all amendments
thereto" and (2) its transitory provisions expressly continue the
effectivity of existing laws, offices and courts as well as the tenure of all
incumbent officials, not adversely affected by it, which would have
been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
incumbent members of the Judiciary (which include the Chief Justice
and Associate Justices of Supreme Court) may continue in office (under
the constitution) until they reach the age of seventy years, etc." By
virtue of the presumptive validity of the new charter, all of form part of
the 15-man-Court provided for therein correspondingly, We have in
legal contemplation, ceased in the meanwhile to be members of the 11man-Court in the 1935 Constitution. Should the Court finally decide that
the Constitution is invalid, then We would automatically revert to our
positions in the 11-man- Court, otherwise, We would just continue to be
in our membership in the 15-man-Court, unless We feel We cannot in
conscience accept the legality of existence. On the other hand, if it is
assumed that We are the 11-man-Court and it happens that Our
collective decision is in favor of the new constitution, it would be
problematical for any dissenting justice to consider himself as included
automatically in the 15-man-Court, since that would tantamount to
accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation
1102 is invalid because the ratification of the 1973 Constitution it
purports to declare as having taken place as a result of the referendum
above-referred to is ineffective since it cannot be said on the basis of
the said referendum that said Constitution has been "approved by a
majority of the votes cast at an election" in the manner prescribed by
Article XV the Constitution of 1935. More specifically, they maintain that
the word "election" in the said Article has already acquired a definite
accepted meaning out of the consistent holding in the past of
ratification plebiscites, and accordingly, no other form of ratification can
be considered contemplated by the framers of the Old Constitution than
that which had been followed 1935, 1937, 1939, 1940, 1946 and 1967,
the last three or four which were held under the supervision of the
Commission on Elections. Furthermore, they emphatically deny the
veracity of the proclaimed results of the referendum because, according
to them the referendum was a farce and its results were manufactured
or prefabricated, considering that Mr. Francisco Cruz, who is supposed
to have submitted the final report to the President, which served as
basis for Proclamation 1102, had no official authority to render the
same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time employed. Of course,
they also contend that in any event, there was no proper submission
because martial law per se creates constructive duress which deprives
the voters of the complete freedom needed for the exercise of their
right of choice and actually, there was neither time nor opportunity for
real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for
the respondents is that the matter raised in the petitions is a political

one which the courts are not supposed to inquire into, and, anyway,
there has been a substantial compliance with Article XV of the 1935
Constitution, inasmuch as, disregarding unessential matters of form,
the undeniable fact is that the voting in the referendum resulted in the
approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In
my separate opinion in the Plebiscite Cases, I already made the
observation that in view of the lack of solemnity and regularity in the
voting as well as in the manner of reporting and canvassing conducted
in connection with the referendum, I cannot say that Article XV of the
Old Constitution has been complied with, albeit I held that nonetheless,
the Constitution of 1973 is already in force. In order, however, to make
myself clearer on some relevant points, I would like to add a few
considerations to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into
account was that in the face of the Presidential certification through
Proclamation 1102 itself that the New Constitution has been approved
by a majority of the people and having in mind facts of general
knowledge which I have judicial notice of, I am in no position to deny
that the result of the referendum was as the President had stated. I can
believe that the figures referred to in the proclamation may not
accurate, but I cannot say in conscience that all of them are
manufactured or prefabricated, simply because I saw with own eyes
that people did actually gather and listen discussions, if brief and
inadequate for those who are abreast of current events and general
occurrences, and that they did vote. I believe I can safely say that what
I have seen have also been seen by many others throughout the
country and unless it can be assumed, which honestly, I do not believe
to be possible, that in fact there were actually no meetings held and no
voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the votes
were in favor of the New Constitution. If in fact there were substantially
less than 14 million votes of approval, the real figure, in my estimate,
could still be significant enough and legally sufficient to serve as basis
for a valid ratification.
It is contended, however, that the understanding was that the
referendum among the Citizens Assemblies was to be in the nature
merely of a loose consultation and not an outright submission for
purposes of ratification. I can see that at the outset, when the first set
of questions was released, such may have been the idea. It must not be
lost sight of, however, that if the newspaper reports are to be believed,
and I say this only because petitioners would consider the newspapers
as the official gazettes of the administration, the last set of six
questions were included precisely because the reaction to the idea of
mere consultation was that the people wanted greater direct
participation, thru the Citizens Assemblies, in decision-making
regarding matters of vital national interest. Thus, looking at things more
understandingly and realistically the two questions emphasized by
counsel, namely, (1) Do yo approve of the New Constitution? and (2) Do
you want plebiscite to be called to ratify the new Constitution? should
be considered no longer as loose consultations but as direct inquiries
about the desire of the voters regarding the matters mentioned.
Accordingly, I take it that if the majority had expressed disapproval of
the new Constitution, the logical consequence would have been the
complete abandonment of the idea of holding any plebiscite at all. On
the other hand, it is very plain to see that since the majority has
already approved the new Constitution, a plebiscite would be
superfluous. Clear as these rationalizations may be, it must have been
thought that if the holding of a plebiscite was to be abandoned, there
should be a direct and expressed desire of the people to such effect in
order to forestall as much as possible any serious controversy regarding
the non-holding of the plebiscite required by the letter of Section 16 of
Article XVII, the effectivity clause, of the new Constitution. Oddly
enough, the "comments" accompanying the questions do strongly
suggest this view. And as it turned out, the majority found no necessity
in holding a plebiscite.
In connection with the question, Do you approve of the New
Constitution? capital is being made of the point that as so framed, the
thrust of the said question does not seek an answer of fact but of
opinion. It is argued that it would have been factual were it worded
categorically thus Do you approve the New Constitution? The
contention would have been weighty were it not unrealistic. I remember
distinctly that the observation regarding the construction of the subject
question was not originally made by any of the talented counsels for
petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of
the English language can rightly be the cause of envy of even
professors of English. None of the other members of the Court, as far as
I can recall, ever noticed how the said question is phrased, or if anyone
of Us did, I am not aware that he gave it more than passing attention.
What I mean is that if neither any of the distinguished and learned
counsels nor any member of the Court understood the said question
otherwise than calling for a factual answer instead of a mere opinion,
how could anyone expect the millions of unlettered members of the
Citizens Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference until Justice
Castro gave it emphasis. Besides, reading the question in the light of
the accompanying "comment" corresponding to it in particular, I am
certain that any one who answered the same understood it in no other
sense than a direct inquiry as to whether or not, as a matter of fact, he

approves the New Constitution, and naturally, affirmative answer must

be taken as a categorical vote of approval thereof, considering,
particularly, that according to the reported result of the referendum
said answer was even coupled with the request that the President defer
the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that
question to the deferment of the convening of the interim assembly,
the said answer is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. The contention has no
basis. In interest of accuracy, the additional answer proposed in
pertinent "comment" reads as follows: "But we do not want Ad Interim
Assembly to be convoked etc." On the assumption that the actual
answer, as reported, was of similar tenor, it is not fair to ascribe to it
the imposition of a condition. At most, the intention is no more than a
suggestion or a wish.
As regards said "comments", it must be considered that a martial law
was declared, the circumstances surrounding making of the
Constitution acquired a different and more meaningful aspect, namely,
the formation of a new society. From the point of view of the President
and on the basis of intelligence reports available to him, the only way to
meet situation created by the subversive elements was to introduce
immediately effective reforms calculated to redeem the people from the
depth of retrogression and stagnation caused by rampant graft and
corruption in high places, influence peddling, oligarchic political
practices, private armies, anarchy, deteriorating conditions of peace
and order, the so inequalities widening the gap between the rich and
the poor, and many other deplorable long standing maladies crying for
early relief and solution. Definitely, as in the case of rebellious
movement that threatened the Quirino Administration, the remedy was
far from using bullets alone. If a constitution was to be approved as an
effective instrument towards the eradication of such grave problems, it
had to be approved without loss of time and sans the cumbersome
processes that, from the realistic viewpoint, have in the past obstructed
rather than hastened the progress of the people. Stated otherwise, in
the context of actualities, the evident objective in having a new
constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing
these considerations in mind can the "comments" already referred to be
properly appreciated. To others said "comments" may appear as
evidence of corruption of the will of those who attended the assemblies,
but actually, they may also be viewed in the same light as the sample
ballots commonly resorted to in the elections of officials, which no one
can contend are per semeans of coercion. Let us not forget that the
times are abnormal, and prolonged dialogue and exchange of ideas are
not generally possible, nor practical, considering the need for faster
decisions and more resolute action. After all voting on a whole new
constitution is different from voting on one, two or three specific
proposed amendments, the former calls for nothing more than a
collective view of all the provisions of the whole charter, for necessarily,
one has to take the good together with the bad in it. It is rare for
anyone to reject a constitution only because of a few specific
objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the people the
paths open to them in their quest for the betterment of their conditions,
and as long as it is not shown that those who did not agree to the
suggestions in the "comments" were actually compelled to vote against
their will, I am not convinced that the existence of said "comments"
should make any appreciable difference in the court's appraisal of the
result of the referendum.
I must confess that the fact that the referendum was held during
martial law detracts somehow from the value that the referendum
would otherwise have had. As I intimated, however, in my former
opinion, it is not fair to condemn and disregard the result of the
referendum barely because of martial law per se. For one thing, many
of the objectionable features of martial law have not actually
materialized, if only because the implementation of martial law since its
inception has been generally characterized by restraint and
consideration, thanks to the expressed wishes of the President that the
same be made "Philippine style", which means without the rigor that
has attended it in other lands and other times. Moreover, although the
restrictions on the freedom of speech, the press and movement during
martial law do have their corresponding adverse effects on the area of
information which should be open to a voter, in its real sense what
"chills" his freedom of choice and mars his exercise of discretion is
suspension of the privilege of the writ of habeas corpus. The reason is
simply that a man may freely and correctly vote even if the needed
information he possesses as to the candidates or issues being voted
upon is more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of the
cause thereof, that is something else which may actually cause him to
cast a captive vote. Thus it is the suspension of the writ of habeas
corpus accompanying martial law that can cause possible restraint on
the freedom choice in an election held during martial law. It is a fact,
however, borne by history and actual experience, that in the
Philippines, the suspension of the privilege of the writ habeas
corpus has never produced any chilling effect upon the voters, since it
is known by all that only those who run afoul the law, saving
inconsequential instances, have any cause for apprehension in regard
to the conduct by them of the normal activities of life. And so it is

recorded that in the elections 1951 and 1971, held while the privilege
of writ of habeas corpus was under suspension, the Filipino voters gave
the then opposition parties overwhelming if not sweeping victories, in
defiance of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to
show that the result of the referendum may considered as sufficient
basis for declaring that the New Constitution has been ratified in
accordance with the amending clause of the 1935 Constitution. I
reiterate that in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I may,
certain impression regarding the general conditions obtaining during
and in relation to the referendum which could have in one way or
another affected the exercise of the freedom of choice and the use of
discretion by the members of the Citizens Assemblies, to the end that
as far as the same conditions may be relevant in my subsequent
discussions of the acceptance by the people of the New Constitution
they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been
accepted or adopted by the people. And on this premise, my considered
opinion is that the Court may no longer decide these cases on the basis
of purely legal considerations. Factors which are non-legal but
nevertheless ponderous and compelling cannot be ignored, for their
relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding
that the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the
propriety of submission under any other law or in any other form is
constitutionally a fit subject for inquiry by the courts. The ruling in the
decided cases relied upon by petitioners are to this effect. In view,
however, of the factual background of the cases at bar which include
ratification itself, it is necessary for me to point out that when it comes
to ratification, I am persuaded that there should be a boundary beyond
which the competence of the courts no longer has any reason for being,
because the other side is exclusively political territory reserved for their
own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by
the people. Others may feel there is not enough indication of such
acceptance in the record and in the circumstances the Court can take
judicial notice of. For my part, I consider it unnecessary to be strictly
judicial in inquiring into such fact. Being personally aware, as I have
already stated, that the Citizens Assemblies did meet and vote, if
irregularly and crudely, it is not for me to resort, for the purposes of
these cases, to judicial tape and measure, to find out with absolute
precision the veracity of the total number of votes actually cast. After
all, the claims that upon a comparison of conflicting reports, cases of
excess votes may be found, even if extrapolated will not, as far as I can
figure out, suffice to overcome the outcome officially announced.
Rather than try to form a conclusion out of the raw evidence before Us
which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it
must not be overlooked that, after all, their having been accepted and
adopted by the President, based on official reports submitted to him in
due course of performance of duty of appropriate subordinate officials,
elevated them to the category of an act of a coordinate department of
the government which under the principle separation of powers is
clothed with presumptive correctness or at least entitled to a high
degree of acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due to the
unorthodoxy of the procedure adopted and the difficulty of an accurate
checking of all the figures, I am unable to conceive of any manageable
means of acquiring information upon which to predicate a denial, I have
no alternative but to rely on what has been officially declared. At this
point, I would venture to express the feeling that if it were not generally
conceded that there has been sufficient showing of the acceptance in
question by this time, there would have been already demonstrative
and significant indications of a rather widespread, if not organized
resistance in one form or another. Much as they are to be given due
recognition as magnificent manifestations of loyalty and devotion to
principles, I cannot accord to the filing of these cases as indicative
enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution
of 1935, to be valid, must appear to have been made in strict
conformity with the requirements of Article XV thereof. What is more,
that decision asserted judicial competence to inquire into the matter of
compliance or non compliance as a justiciable matter. I still believe in
the correctness of those views and I would even add that I sincerely feel
it reflects the spirit of the said constitutional provision. Without trying to
strain any point however, I, submit the following considerations in the
context of the peculiar circumstances of the cases now at bar, which
are entirely different from those in the backdrop of the Tolentino rulings
I have referred to.
1. Consider that in the present case what is involved is not just an
amendment of a particular provision of an existing Constitution; here, it
is, as I have discussed earlier above, an entirely new Constitution that

is being proposed. This important circumstance makes a great deal of

difference.
No less than counsel Tolentino for herein respondents Puyat and Roy,
who was himself the petitioner in the case I have just referred to is, now
inviting Our attention to the exact language of Article XV and
suggesting that the said Article may be strictly applied to proposed
amendments but may hardly govern the ratification of a new
Constitution. It is particularly stressed that the Article specifically refers
to nothing else but "amendments to this Constitution" which if ratified
"shall be valid as part of this Constitution." Indeed, how can a whole
new constitution be by any manner of reasoning an amendment to any
other constitution and how can it, if ratified, form part of such other
constitution? In fact, in the Tolentino case I already somehow hinted this
point when I made reference in the resolution denying the motion for
reconsideration to the fact that Article XV must be followed "as long as
any amendment is formulated and submitted under the aegis of the
present Charter." Said resolution even added. "(T)his is not to say that
the people may not, in the exercise of their inherent revolutionary
powers, amend the Constitution or promulgate an entirely new one
otherwise.".
It is not strange at all to think that the amending clause of a
constitution should be confined in its application only to proposed
changes in any part of the same constitution itself, for the very fact that
a new constitution is being adopted implies a general intent to put
aside the whole of the old one, and what would be really incongrous is
the idea that in such an eventuality, the new Constitution would subject
its going into effect to any provision of the constitution it is to
supersede, to use the language precisely of Section 6, Article XVII, the
effectivity clause, of the New Constitution. My understanding is that
generally, constitutions are self-born, they very rarely, if at all, come
into being, by virtue of any provision of another constitution. 3 This
must be the reason why every constitution has its own effectivity
clause, so that if, the Constitutional Convention had only anticipated
the idea of the referendum and provided for such a method to be used
in the ratification of the New Constitution, I would have had serious
doubts as to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede the
existing one, we cannot but take into consideration the forces and the
circumstances dictating the replacement. From the very nature of
things, the proposal to ordain a new constitution must be viewed as the
most eloquent expression of a people's resolute determination to bring
about a massive change of the existing order, a meaningful
transformation of the old society and a responsive reformation of the
contemporary institutions and principles. Accordingly, should any
question arise as to its effectivity and there is some reasonable
indication that the new charter has already received in one way or
another the sanction of the people, I would hold that the better rule is
for the courts to defer to the people's judgment, so long as they are
convinced of the fact of their approval, regardless of the form by which
it is expressed provided it be reasonably feasible and reliable.
Otherwise stated, in such instances, the courts should not bother about
inquiring into compliance with technical requisites, and as a matter of
policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great
relevancy. I refer to the ostensible reaction of the component elements,
both collective and individual, of the Congress of the Philippines.
Neither the Senate nor the House of Representatives has been reported
to have even made any appreciable effort or attempt to convene as
they were supposed to do under the Constitution of 1935 on January 22,
1973 for the regular session. It must be assumed that being composed
of experienced, knowledgeable and courageous members, it would not
have been difficult for said parliamentary bodies to have conceived
some ingenious way of giving evidence of their determined adherence
to the Constitution under which they were elected. Frankly, much as I
admire the efforts of the handful of senators who had their picture
taken in front of the padlocked portals of the Senate chamber, I do not
feel warranted to accord such act as enough token of resistance. As
counsel Tolentino has informed the court, there was noting to stop the
senators and the congressmen to meet in any other convenient place
and somehow officially organize themselves in a way that can logically
be considered as a session, even if nothing were done than to merely
call the roll and disperse. Counsel Tolentino even pointed out that if
there were not enough members to form a quorum, any smaller group
could have ordered the arrest of the absent members. And with
particular relevance to the present cases, it was not constitutionally
indispensable for the presiding officers to issue any call to the members
to convene, hence the present prayers for mandamus have no legal
and factual bases. And to top it all, quite to the contrary, the records of
the Commission on Elections show that at least 15 of 24 senators and
over 95 out of less than 120 members of the House of Representatives,
have officially and in writing exercised the option given to them to join
the Interim National Assembly under the New Constitution, thereby
manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three
great departments of the government under the 1935 Constitution, two,
the Executive and the Legislative, have already accepted the New
Constitution and recognized its enforceability and enforcement, I cannot
see how this Supreme Court can by judicial fiat hold back the political
developments taking place and for the sake of being the guardian of
the Constitution and the defender of its integrity and supremacy make

its judicial power prevail against the decision of those who were duly
chosen by the people to be their authorized spokesmen and
representatives. It is not alone the physical futility of such a gesture
that concerns me. More than that, there is the stark reality that the
Senators and the Congressmen, no less than the President, have taken
the same oath of loyalty to the Constitution that we, the Justices, have
taken and they are, therefore, equally bound with Us to preserve and
protect the Constitution. If as the representatives of the people, they
have already opted to accept the New Constitution as the more
effective instrument for fulfillment of the national destiny, I really
wonder if there is even any idealistic worth in our desperately clinging
by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution.
Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being with the least loss of time,
towards their accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which to me is in
reality the real meaning of our oath of office, the Court might be
standing in the way of the very thing our beloved country needs to
retrieve its past glory and greatness. In other words, it is my conviction
that what these cases demand most of all is not a decision
demonstrative of our legal erudition and Solomonic wisdom but an all
rounded judgment resulting from the consideration of all relevant
circumstances, principally the political, or, in brief, a decision more
political than legal, which a court can render only by deferring to the
apparent judgment of the people and the announcement thereof by the
political departments of the government and declaring the matter nonjusticiable.
4. Viewed from the strictly legal angle and in the light of judicial
methods of ascertainment, I cannot agree with the Solicitor General
that in the legal sense, there has been at least substantial compliance
with Article XV of the 1935 Constitution, but what I can see is that in a
political sense, the answers to the referendum questions were not given
by the people as legal conclusions. I take it that when they answered
that by their signified approval of the New Constitution, they do not
consider it necessary to hold a plebiscite, they could not have had in
mind any intent to do what was constitutionally improper. Basically
accustomed to proceed along constitutional channels, they must have
acted in the honest conviction that what was being done was in
conformity with prevailing constitutional standards. We are not to
assume that the sovereign people were indulging in a futile exercise of
their supreme political right to choose the fundamental charter by
which their lives, their liberties and their fortunes shall be safeguarded.
In other words, we must perforce infer that they meant their decision to
count, and it behooves this Court to render judgment herein in that
context. It is my considered opinion that viewed understandingly and
realistically, there is more than sufficient ground to hold that, judged by
such intent and, particularly, from the political standpoint, the
ratification of the 1973 Constitution declared in Proclamation 1102
complies substantially with Article XV of the 1935 Charter, specially
when it is considered that the most important element of the
ratification therein contemplated is not in the word "election", which
conceivably can be in many feasible and manageable forms but in the
word "approved" which may be said to constitute the substantiality of
the whole article, so long as such approval is reasonably ascertained. In
the last analysis, therefore, it can be rightly said, even if only in a broad
sense, that the ratification here in question was constitutionally justified
and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New
Constitution on legal grounds, the same should be dispelled by viewing
the situation in the manner suggested by Counsel Tolentino and by the
writer of this opinion in his separate opinion, oft-referred to above, in
the Plebiscite Cases that is, as an extra constitutional exercise by the
people, under the leadership of President Marcos, of their inalienable
right to change their fundamental charter by any means they may
deem appropriate, the moment they are convinced that the existing
one is no longer responsive to their fundamental, political and social
needs nor conducive to the timely attainment of their national destiny.
This is not only the teaching of the American Declaration of
Independence but is indeed, a truth that is self-evident. More, it should
be regarded as implied in every constitution that regardless of the
language of its amending clause, once the people have given their
sanction to a new charter, the latter may be deemed as constitutionally
permissible even from the point of view of the preceding constitution.
Those who may feel restrained to consider this view out of respect to
the import of Tolentino vs. Comelec, supra., would be well advised to
bear in mind that the case was decided in the context of submission,
not accomplished ratification.
V
The language of the disputed amending clause of the 1935 Constitution
should not be deemed as the be all and end all the nation. More
important than even the Constitution itself with all its excellent
features, are the people living under it their happiness, their
posterity and their national destiny. There is nothing that cannot be
sacrificed in the pursuit of these objectives, which constitute the totality
of the reasons for national existence. The sacred liberties and freedom
enshrined in it and the commitment and consecration thereof to the
forms of democracy we have hitherto observed are mere integral parts
of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that
by denying the present petitions, the Court would be deemed as

sanctioning, not only the deviations from traditional democratic

concepts and principles but also the qualified curtailment of individual
liberties now being practiced, and this would amount, it is feared, to a
repudiation of our oath to support and defend the Constitution of 1935.
This is certainly something one must gravely ponder upon. When I
consider, however, that the President, the Vice President, the members
of both Houses of Congress, not to speak of all executive departments
and bureaus under them as well as all the lower courts, including the
Court of Appeals have already accepted the New Constitution as an
instrument of a meaningful nationwide-all-level change in our
government and society purported to make more realistic and feasible,
rather than idealistic and cumbersomely deliberative, the attainment of
our national aspirations, I am led to wonder whether or not we, as
members of the Supreme Court are being true to our duty to our people
by refusing to follow suit and accept the realities of the moment,
despite our being convinced of the sincerity and laudableness of their
objectives, only because we feel that by the people's own act of
ratifying the Constitution of 1935, they have so encased themselves
within its provisions and may, therefore, no longer take measures to
redeem themselves from the situation brought about by the
deficiencies of the old order, unless they act in strict conformity
therewith. I cannot believe that any people can be so stifled and
enchained. In any event, I consider it a God-given attribute of the
people to disengage themselves, if necessary, from any covenant that
would obstruct their taking what subsequently appears to them to be
the better road to the promotion and protection of their welfare. And
once they have made their decision in that respect, whether
sophisticatedly or crudely, whether in legal form or otherwise, certainly,
there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Taada and Salonga that these cases be
decided on the basis of conscience. That is exactly what I am doing. But
if counsel mean that only by granting their petitions can this Court be
worthily the bulwark of the people's faith in the government, I cannot
agree, albeit my admiration and respect are all theirs for their zeal and
tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that
these cases demand.
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the
attainment of the national destiny. Our heroes of the past, Rizal,
Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots
of the recent generations, Quezon, Osmea, Roxas, Laurel and Recto, to
mention only some of them, had their differences of views and they
did not hesitate to take diametrically opposing sides that even
reached tragic proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people
is more important than loyalty to any particular precept or provision of
the Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national
unity. May God grant that the controversies the events leading to these
cases have entail will heal after the decision herein is promulgated, so
that all us Filipinos may forever join hands in the pursuit of our national
destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions
for mandamus and prohibition without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments
or of a new Constitution and that such procedure was no complied with,
the validity of Presidential Proclamation No. 1102 is a political, not a
justiciable, issue; for it is inseparably or inextricably link with and
strikes at, because it is decisive of, the validity of ratification and
adoption of, as well as acquiescence of people in, the 1973 Constitution
and the legitimacy of the government organized and operating
thereunder. And being political, it is beyond the ambit of judicial inquiry,
tested by the definition of a political question enunciated inTaada, et.
al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view
will not do violence to rights vested under the new Constitution, to
international commitments forged pursuant thereto and to decisions
rendered by the judicial as well as quasi-judicial tribunals organized and
functioning or whose jurisdiction has been altered by the 1973
Constitution and the government established thereunder, and will
dissipate any confusion in the minds of the citizenry, who have been
obeying the mandates of the new Constitution, as well as exercising the
rights and performing the obligations defined by the new Constitution,
and decrees and orders issued in implementation of the same and
cooperating with the administration in the renovation of our social,
economic and political system as re-structured by the 1973 Constitution
and by the implementing decrees and orders (see Miller vs. Johnson, 18
SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
behalf of the Court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority had been delegated to
the Legislature or Executive branch of the government." (Taada, et al.
vs. Cuenco, et al., supra).

Article XV of the 1935 Constitution provides: "Such amendments shall

be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to
the people for ratification." Under Article XV of the 1935 Constitution,
the power to propose constitutional amendments is vested in Congress
or in a constitutional convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by the sovereign
people. The nullification of Proclamation No. 1102 would inevitably
render inoperative the 1973 Constitution, which is in fact the express
prayer of the petitioners in G.R. No. L-36164. Regardless of the modality
of submission or ratification or adoption even if it deviates from or
violates the procedure delineated therefore by the old Constitution
once the new Constitution is ratified, adopted and/or acquiesced in by
the people or ratified even by a body or agency not duly authorized
therefor but is subsequently adopted or recognized by the people and
by the other official organs and functionaries of the government
established under such a new Constitution, this Court is precluded from
inquiring into the validity of such ratification, adoption or acquiescence
and of the consequent effectivity of the new Constitution. This is as it
should be in a democracy, for the people are the repository of all
sovereign powers as well as the source of all governmental authority
(Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept
is expressly restated in Section 1 of Article II of the Declaration of
Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty
resides in the people and all government authority emanates from
them."
The legality of the submission is no longer relevant; because the
ratification, adoption and/or acquiescence by the people cures any
infirmity in its submission or any other irregularities therein which are
deemed mandatory before submission as they are considered merely
directory after such ratification or adoption or acquiescence by the
people. As Mr. Justice Brewer, then of the Kansas State Supreme Court
and later Associate Justice of the Federal Supreme Court, stated in re
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506):
"The two important, vital elements of the Legislature and a majority of
the popular vote. Beyond these, other provisions are mere machineries
and forms. They may not be disregarded, because by them certainty as
to the essentials is secured. But they are not themselves the
essentials." (Cited in Larken vs. Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with the
effect of both previous rejection and attempted withdrawal and
determined that both were ineffectual in the presence of an actual
ratification ... . This decision by the political departments of the
Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
We think that in accordance with this historic precedent the question of
the efficacy of ratifications by state legislatures, in the light of previous
rejection or attempted withdrawal, should be regarded as a political
question pertaining to the political departments, with the ultimate
authority in the Congress in the exercise of its control over the
promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join,
thus:
The Constitution grants Congress exclusive power to control submission
of constitutional amendments. Final determination by Congress that
ratification by three-fourths of the States has taken place "is conclusive
upon the courts." In the exercise of that power, Congress, of course, is
governed by the Constitution. However, whether submission,
intervening procedure or Congressional determination of ratification
conforms to the commands of the Constitution, calls for decisions by a
"political department" of questions of a type which this Court has
frequently designated "political." And decision of a "political question"
by the "political department" to which the Constitution has committed it
"conclusively binds the judges, as well as all other officers, citizens and
subjects of...government." Proclamation under authority of Congress
that an amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken place as the
Constitution commands. Upon this assurance a proclaimed amendment
must be accepted as a part of the Constitution, leaving to the judiciary
its traditional authority of interpretation. To the extent that the Court's
opinion in the present case even impliedly assumes a power to make
judicial interpretation of the exclusive constitutional authority of
Congress over submission and ratification of amendments, we are
unable to agree... (American Constitutional Issues, by Pritchett, 1962
Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by
Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov.
29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct.
16, 1971, 41 SCRA 702) on which petitioners place great reliance
that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such
proposed amendment by the sovereign people, hardly applies to the
cases at bar; because the issue involved in the aforesaid cases refers to
only the propriety of the submission of a proposed constitutional
amendment to the people for ratification, unlike the present petitions,

which challenge inevitably the validity of the 1973 Constitution after its
ratification or adoption thru acquiescence by the sovereign people. As
heretofore stated, it is specious and pure sophistry to advance the
reasoning that the present petitions pray only for the nullification of the
1973 Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held
that:
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress. It is part of the inherent powers of the people as
the repository of sovereignty in a republican state, such as ours to
make, and hence, to amend their own Fundamental Law. Congress may
propose amendments to the same explicitly grants such power. Hence,
when exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members, but as component
elements of a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the
people, when performing the same function, for their authority
does not emanate from the Constitution they are the very source
of all powers of government, including the Constitution itself. (21 SCRA
787)
We did not categorically and entirely overturn the doctrine in Mabanag
vs. Lopez Vito (78 Phil. 1) that both the proposal to amend and the
ratification of such a constitutional amendment are political in nature
forming as they do the essential parts of one political scheme the
amending process. WE merely stated therein that the force of the ruling
in the said case of Mabanag vs. Lopez Vito has been weakened by
subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the
issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution which was being
submitted to the people for ratification satisfied the three fourths
vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Taada vs. Cuenco and Macias vs.
Commission on Elections. In the first, we held the officers and
employees of the Senate Electoral Tribunal are supervision and control,
not of that of the Senate President, claimed by the latter; in the second,
this Court proceeded to determine the number of Senators necessary
for a quorum in the Senate; in the third we nullified the election, by
Senators belonging to the party having the largest number of votes in
said chamber purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging
to the first party, as members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared unconstitutional an act
of Congress purporting to apportion the representative districts for the
House of Representatives, upon the ground that the apportionment had
not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory advanced in
these four (4) cases, that the issues therein raised were political
questions the determination of which is beyond judicial review. (21
SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before acting
as a constituent assembly violates the Constitution is essentially
justiciable, not political, and, hence, subject to judicial review, and to
the extent that this view may be inconsistent with the stand taken in
Mabanag vs. Lopez Vito, the latter should be deemed modified
accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41
SCRA 703-714).
The inevitable consequence therefore is that the validity of the
ratification or adoption of or acquiescence by the people in the 1973
Constitution, remains a political issue removed from the jurisdiction of
this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed
constitutional amendment. Courts do not deal with propriety or wisdom
or absence of either of an official act or of a law. Judicial power concerns
only with the legality or illegality, constitutionality or unconstitutionality
of an act: it inquires into the existence of power or lack of it. Judicial
wisdom is not to be pitted against the wisdom of the political
department of the government.
The classic example of an illegal submission that did not impair the
validity of the ratification or adoption of a new Constitution is the case
of the Federal Constitution of the United States. It should be recalled
that the thirteen (13) original states of the American Union which
succeeded in liberating themselves from England after the revolution
which began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933
Ed., p. 776) adopted their Articles of Confederation and Perpetual
Union, that was written from 1776 to 1777 and ratified on March 1,
1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter,
the Congress of the Confederation passed a resolution on February 21,
1787 calling for a Federal Constitutional Convention "for the sole and
express purpose of revising the articles of confederation ... ." (Appendix
I, Federalist, Modern Library ed., p. 577, emphasis supplied).

The Convention convened at Philadelphia on May 14, 1787. Article XIII

of the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every
state, and the union shall be perpetual; nor shall any alterations at any
time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards
confirmed by the legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of
Confederation and Perpetual Union for the alteration for the ratification
of the Federal Constitution as drafted by the Philadelphia Convention
were not followed. Fearful the said Federal Constitution would not be
ratified by the legislatures as prescribed, the Philadelphia Convention
adopted a resolution requesting the Congress of the Confederation to
pass a resolution providing that the Constitution should be submitted to
elected state conventions and if ratified by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said Constitution
shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University
recorded that:
It would have been a counsel of perfection to consign the new
constitution to the tender mercies of the legislatures of each and all of
the 13 states. Experience clearly indicated that ratification then would
have had the same chance as the scriptural camel passing through the
eye of a needle. It was therefore determined to recommend to
Congress that the new Constitution be submitted to conventions in the
several states especially elected to pass upon it and that, furthermore,
the new government should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The Federalist, Modern
Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix;
emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians
would be Antifederalist, provided for ratification of the Constitution by
popularly elected conventions in each state. Suspecting that Rhode
Island, at least, would prove recalcitrant, it declared that the
Constitution would go into effect as soon as nine states ratified. The
convention method had the further advantage that judges, ministers,
and others ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course, mildly
revolutionary. But the Congress of the Confederation, still sitting in New
York to carry on federal government until relieved, formally submitted
the new constitution to the states and politely faded out before the first
presidential inauguration. (The Oxford History of the Am. People, by
Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June
21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679
footnote, 16 C.J.S., 27. by the state conventions and not by all
thirteen (13) state legislatures as required by Article XIII of the Articles
of Confederation and Perpetual Union aforequoted and in spite of the
fact that the Federal Constitution as originally adopted suffers from two
basic infirmities, namely, the absence of a bill of Rights and of a
provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review
has become part of American constitutional law only by virtue of a
judicial pronouncement by Chief Justice Marshall in the case of Marbury
vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of
the ratification of the American Constitution, nor against the legitimacy
of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326330), which enunciated the principle that the validity of a new or
revised Constitution does not depend on the method of its submission
or ratification by the people, but on the fact or fiat or approval or
adoption or acquiescence by the people which fact of ratification or
adoption or acquiescence is all that is essential, the Court cited
precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has
been called to our attention, and we have found none. We think that
the principle which we apply in the instant case was very clearly
applied in the creation of the constitution of the United States. The
convention created by a resolution of Congress had authority to do one
thing, and one only, to wit, amend the articles of confederation. This
they did not do, but submitted to the sovereign power, the people, a
new constitution. In this manner was the constitution of the United
States submitted to the people and it became operative as the organic
law of this nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that
formulated the constitution of the United States, has this to say: "The
convention proceeded to do, and did accomplish, what they were not
authorized to do by a resolution of Congress that called them together.
That resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the State legislatures, in the manner pointed
out by the existing organic law. But the convention soon became
convinced that any amendments were powerless to effect a cure; that
the disease was too deeply seated to be reached such tentative means.
They saw that the system they were called to improve must be totally

abandoned, and that the national idea must be re-established at the

center of their political society. It was objected by some members, that
they had no power, no authority, to construct a new government. They
had no authority, if their decisions were to be final; and no authority
whatsoever, under the articles of confederation, to adopt the course
they did. But they knew that their labors were only to be suggestions;
and that they as well as any private individuals, and any private
individuals as well as they, had a right to propose a plan of government
to the people for their adoption. They were, in fact, a mere assemblage
of private citizens, and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office would have had. The
people, by their expressed will, transformed this suggestion, this
proposal, into an organic law, and the people might have done the
same with a constitution submitted to them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the
framing or submission of the instrument is not what gives it binding
force and effect. The fiat of the people and only the fiat of the people,
can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by
implication a limitation upon the sovereign. This would be an
authorized exercise of sovereign power by the court. In State v. Swift,
69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a
State may form an original constitution, or abrogate an old one and
form a new one, at any time, without any political restriction except the
constitution of the United States; ... ." (37 SE 327-328, 329, emphasis
supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question,
and were compelled to hold that the act of February 23, 1887, is
unconstitutional and void, it would not, in our opinion, by any means
follow that the amendment is not a part of our state Constitution. In the
recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the Supreme
Court of Virginia hold that their state Constitution of 1902, having been
acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition,
must be regarded as an existing Constitution irrespective of the
question as to whether or not the convention which promulgated it had
authority so to do without submitting it to a vote of the people.
In Brittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by
the Legislature at the requirement of Congress, though never submitted
to the people for their approval." (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity
of the ratification and adoption of the American Constitution, in spite of
the fact that such ratification was in clear violation of the prescription
on alteration and ratification of the Articles of Confederation and
Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most
significant historical fact by calling the Federal Constitution of the
United States as a revolutionary one, invoking the opinion expressed in
Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary
constitution because it did not obey the requirement that the Articles of
Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite
any decided case, but merely refers to the footnotes on the brief
historic account of the United States Constitution on p. 679 of Vol. 12,
CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of
the Oxford History of the American People, 1965 Ed. by Samuel Eliot
Morison, who discusses the Articles of Confederation and Perpetual
Union in Chapter XVIII captioned "Revolutionary Constitution Making,
1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in
Politics, 1785-1788," Professor Morison delineates the genesis of the
Federal Constitution, but does not refer to it even implicitly as
revolutionary constitution (pp. 297-316). However, the Federal
Constitution may be considered revolutionary from the view point of
McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though
they do not involve the violent overthrow of an established order, ... ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and Perpetual
Union that was in force from July 12, 1776 to 1788, forged as it was
during the war of independence was a revolutionary constitution of the
thirteen (13) states. In the existing Federal Constitution of the United
States which was adopted seven (7) or nine (9) years after the thirteen
(13) states won their independence and long after popular support for
the government of the Confederation had stabilized was not a product
of a revolution. The Federal Constitution was a "creation of the brain
and purpose of man" in an era of peace. It can only be considered
revolutionary in the sense that it is a radical departure from its
predecessor, the Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the
United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no
further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No.
1102 strikes at the validity and enforceability of the 1973 Constitution
and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is

inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is

no valid ratification of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning
thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and
not justiciable, had long been decided as early as the 1849 case
of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case
of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated
in 1912 in the case of Pacific States Telephone and Telegraph Company
vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it
reaffirmed the pronouncements in both Borden and Beckham cases, it
is sufficient for us to quote the decision in Pacific States Telephone and
Telegraph Co., supra, penned by Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the apparent misapprehension
on one side and seeming misconception on the other, suggested by the
argument as to the full significance of the previous doctrine, we do not
content ourselves with a mere citation of the cases, but state more at
length than we otherwise would the issues and the doctrine expounded
in the leading and absolutely controlling case Luther v. Borden, 7
How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by
the plaintiff, and it should be decided that the character government
had no legal existence during the period of time above mentioned, if
it had been annulled by the adoption of the opposing government,
then the laws passed by its legislature during that time were
nullities; its taxes wrongfully collected, its salaries and compensations
to its officers illegally paid ; its public accounts improperly settled and
the judgments and sentences of its courts in civil and criminal cases
null and void, and the officers who carried their decisions into operation
answerable as trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United
States shall guarantee to every state in the Union a republican form of
government, and shall protect each of them against invasion; and on
the application of the Legislature or of the Executive (when the
legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide
what government is established one in a state. For, as the United State
guarantee to each state a republican government, Congress must
necessarily decide what government is established in the state before
it can determine whether it is republican or not. And when the senators
and representatives of a state are admitted into the Councils of the
Union, the authority of the government under which they were
appointed, as well as its republican character, is recognized by the
proper constitutional authority. And its decision is binding on every
other department of the government, and could not be questioned in a
judicial tribunal. It is true that the contest in this case did not last long
enough to bring the matter to this issue; and as no senators or
representatives were elected under the authority of the government of
which Mr. Dorr was the head, Congress was not called upon to decide
the controversy. Yet the right to decide is placed there and not in the
courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally
refer to the subject, but conclude by directing attention to the
statement by the court, speaking through Mr. Chief Justice Fuller, in
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890,
1009, where, after disposing of a contention made concerning the 14th
Amendment, and coming to consider a proposition which was necessary
to be decided concerning the nature and effect of the guaranty of S 4 of
article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article
4, of the Constitution, providing that the United States shall guarantee
to every state in this Union a republican form of government, and shall
protect each of them against invasion; and on application of the
legislature, or the Executive (when the legislature cannot be convened),
against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged
to the political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In
that case it was held that the question, which of the two opposing
governments of Rhode Island, namely, the charter government or the
government established by a voluntary convention, was the legitimate
one, was a question for the determination of the political department;
and when that department had decided, the courts were bound to take
notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long since
by this Court been, definitely determined to be political and
governmental, and embraced within the scope of the scope of the
powers conferred upon Congress, and not, therefore within the reach of
judicial power, it follows that the case presented is not within our
jurisdiction, and the writ of error must therefore be, and it is, dismissed
for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the
Constitutional Convention without authority therefor and without
submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other

government functionaries, as well as by the people. In the 1903 case

of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the contention that Constitution
proclaimed in 1902 is invalid is that it was ordained and promulgated
by the convention without being submitted for ratification or rejection
by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention
duly called by direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the only
valid Constitution of the state by the Governor in swearing fidelity to it
and proclaiming it, as directed thereby; by the Legislature in its formal
official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of
Richmond on the 12th day of June 1901, as the Constitution of Virginia;
by the individual oaths of members to support it, and by its having
been engaged for nearly a year in legislating under it and putting its
provisions into operation but the judiciary in taking the oath prescribed
thereby to support and by enforcing its provisions; and by the people in
their primary capacity by peacefully accepting it and acquiescing in it,
registering as voters under it to the extent of thousands through the
state, and by voting, under its provisions, at a general election for their
representatives in the Congress of the United States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the
constitution must be duly followed, without omitting any requisite
steps, courts should uphold amendment, unless satisfied that the
Constitution was violated in submitting the proposal. ... Substance more
than form must be regarded in considering whether the complete
constitutional system for submitting the proposal to amend the
constitution was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court
stated:
There may be technical error in the manner in which a proposed
amendment is adopted, or in its advertisement, yet, if followed,
unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to
taking the vote, but, if once sanctioned, the amendment is embodied
therein, and cannot be attacked, either directly or collaterally, because
of any mistake antecedent thereto. Even though it be submitted at an
improper time, it is effective for all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,
such act becomes valid upon ratification or adoption or acquiescence
by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R.
Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld
this principle and stated that: "The authorities are almost uniform that
this ratification of an unauthorized act by the people (and the people
are the principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying
the new Constitution are registered in the book of voters; it is enough
that they are electors voting on the new Constitution. (Bott vs. Wurts,
40 A 740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370,
375), the Supreme Court of Wisconsin ruled that "irregularity in the
procedure for the submission of the proposed constitutional
amendment will not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd
769), the Alabama Supreme Court pronounced that "the irregularity in
failing to publish the proposed constitutional amendment once in each
of the 4 calendar weeks next preceding the calendar week in which the
election was held or once in each of the 7-day periods immediately
preceding the day of the election as required by the Constitution, did
not invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme
Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they
admitted irregularities or illegalities committed in the procedure for
submission of the proposed constitutional amendment to the people for
ratification consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a sufficient number of
ballot boxes 'secured by good and substantial locks,' as provided by
Section 3249, Code of 1942, Rec., to be used in the holding of the
special election on the constitutional amendment, and (b) the alleged
failure of the State Election Commissioners to comply with the
requirements of Code Sections 3204 and 3205 in the appointment of
election commissioners in each of the 82 counties. The irregularities
complained of, even if proved, were not such irregularities would have
invalidated the election." (Emphasis supplied; see also Sylvester vs.
Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the
Constitutional Convention and during the deliberations of the
Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973
Constitution which have long been desired by the people, had been
thoroughly discussed in the various committees of the Constitutional
Convention, on the floor of the Convention itself, in civic forums and in
all the media of information. Many of the decrees promulgated by the
Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some
of the reforms and had been ratified in Sec. 3(2) of Article XVII of the
1973 Constitution.

Petitioners cannot safely state that during martial law the majority of
the people cannot freely vote for these reforms and are not complying
with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had
free elections in 1951 and 1971 when the opposition won six out of
eight senatorial seats despite the suspension of the privileges of the
writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971, 42
SCRA 448), which suspension implies constraint on individual freedom
as the proclamation of martial law. In both situations, there is no total
blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or
Liberals, as well as officials of the Legislative and Executive branches of
the government elected and/or appointed under the 1935 Constitution
have either recognized or are now functioning under the 1973
Constitution, aside from the fact of its ratification by the sovereign
people through the Citizens Assemblies. Ninety-five (95) of a total of
one hundred ten (110) members of the House of Representatives
including the Speaker and the Speaker Pro Tempore as well as about
eleven (11) Congressmen who belong to the Liberal Party and fifteen
(15) of a total of twenty-four (24) senators including Liberal senators
Edgar U. Ilarde and John Osmea opted to serve in the Interim
Assembly, according to the certification of the Commission on Elections
dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder
of petitioners in L-36165). Only the five (5) petitioners in L-36165 close
their eyes to a fait accompli. All the other functionaries recognize the
new government and are performing their duties and exercising their
powers under the 1973 Constitution, including the lower courts. The
civil courts, military tribunals and quasi-judicial bodies created by
presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. The foreign
ambassadors who were accredited to the Republic of the Philippines
before martial law continue to serve as such in our country; while two
new ambassadors have been accepted by the Philippines after the
ratification of the 1973 Constitution on January 17, 1973. Copies of the
1973 Constitution had been furnished the United Nations Organization
and practically all the other countries with which the Philippines has
diplomatic relations. No adverse reaction from the United Nations or
from the foreign states has been manifested. On the contrary, our
permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law
continue to remain in their posts and are performing their functions as
such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions
of the 1973 Constitution by requiring all election registrars to register
18-year olds and above whether literates or not, who are qualified
electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of
Annex A to Notes of respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973
Constitution and the government which is enforcing the same for over
10 weeks now With the petitioners herein, secessionists, rebels and
subversives as the only possible exceptions, the rest of the citizenry are
complying with decrees, orders and circulars issued by the incumbent
President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18
SW 522:
If a set of men, not selected by the people according to the forms of
law, were to formulate an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts declare its work a nullity.
This would be revolution, and this the courts of the existing government
must resist until they are overturned by power, and a new government
established. The convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It is a
matter of current history that both the executive and legislative
branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore, one
of a judicial character? It is our undoubted duty, if a statute be
unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may be said, however,
that, for every violation of or non-compliance with the law, there should
be a remedy in the courts. This is not, however, always the case. For
instance, the power of a court as to the acts of the other departments
of the government is not an absolute one, but merely to determine
whether they have kept within constitutional limits, it is a duty rather
than a power, The judiciary cannot compel a co-equal department to
perform a duty. It is responsible to the people; but if it does act, then,
when the question is properly presented, it is the duty of the court to
say whether it has conformed to the organic law. While the judiciary
should protect the rights of the people with great care and jealousy,
because this is its duty, and also because, in times of great popular
excitement, it is usually their last resort, yet it should at the same time
be careful to overstep the proper bounds of its power, as being perhaps
equally dangerous; and especially where such momentous results
might follow as would be likely in this instance, if the power of the
judiciary permitted, and its duty required, the overthrow of the work of
the convention.
After the American Revolution the state of Rhode Island retained its
colonial character as its constitution, and no law existed providing for
the making of a new one. In 1841 public meetings were held, resulting

in the election of a convention to form a new one, to be submitted to

a popular vote. The convention framed one, submitted it to a vote, and
declared it adopted. Elections were held for state officers, who
proceeded to organize a new government. The charter government did
not acquiesce in these proceedings, and finally declared the state under
martial law. It called another convention, which in 1843 formed a new
constitution. Whether the charter government, or the one established
by the voluntary convention, was the legitimate one, was uniformly
held by the courts of the state not to be a judicial, but a political
question; and the political department having recognized the one, it
was held to be the duty of the judiciary to follow its decision. The
supreme court of the United States, in Luther v. Borden, 7 How. 1, while
not expressly deciding the principle, as it held the federal court, yet in
the argument approves it, and in substance says that where the
political department has decided such a matter the judiciary should
abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose
this court were to hold that the convention, when it reassembled, had
no power to make any material amendment, and that such as were
made are void by reason of the people having theretofore approved the
instrument. Then, next, this court must determine what amendments
were material; and we find the court, in effect, making a constitution.
This would be arrogating sovereignty to itself. Perhaps the members of
the court might differ as to what amendments are material, and the
result would be confusion and anarchy. One judge might say that all the
amendments, material and immaterial, were void; another, that the
convention had then the implied power to correct palpable errors, and
then the court might differ as to what amendments are material. If the
instrument as ratified by the people could not be corrected or altered at
all, or if the court must determine what changes were material, then
the instrument, as passed upon by the people or as fixed by the court
would be lacking a promulgation by the convention; and, if this be
essential, then the question would arise, what constitution are we now
living under, and what is the organic law of the state? A suggestion of
these matters shows what endless confusion and harm to the state
might and likely would arise. If, through error of opinion, the convention
exceeded its power, and the people are dissatisfied, they have ample
remedy, without the judiciary being asked to overstep the proper limits
of its power. The instrument provides for amendment and change. If a
wrong has been done, it can, in the proper way in which it should be
remedied, is by the people acting as a body politic. It is not a question
of whether merely an amendment to a constitution, made without
calling a convention, has been adopted, as required by that
constitution. If it provides how it is to be done, then, unless the manner
be followed, the judiciary, as the interpreter of that constitution, will
declare the amendment invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W.
Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac. Rep.
835. But it is a case where a new constitution has been formed and
promulgated according to the forms of law. Great interests have
already arisen under it; important rights exist by virtue of it; persons
have been convicted of the highest crime known to the law, according
to its provisions; the political power of the government has in many
ways recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of
our commonwealth.
We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its
powers, yet, as the entire instrument has been recognized as valid in
the manner suggested, it would be equally an abuse of power by the
judiciary and violative of the rights of the people, who can and
properly should remedy the matter, if not to their liking, if it were to
declare the instrument of a portion invalid, and bring confusion and
anarchy upon the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be
exercising a veto power on the act of the sovereign people, of whom
this Court is merely an agent, which to say the least, would be
anomalous. This Court cannot dictate to our principal, the sovereign
people, as to how the approval of the new Constitution should be
manifested or expressed. The sovereign people have spoken and we
must abide by their decision, regardless of our notion as to what is the
proper method of giving assent to the new Charter. In this respect, WE
cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973, We
affirmed in Osmea vs. Marcos(Pres. Election Contest No. 3, Jan. 8,
1973), was re-elected by the vote of over 5 million electors in 1969 for
another term of four years until noon of December 30, 1973 under the
1935 Constitution. This Court, not having a similar mandate by
direct fiat from the sovereign people, to execute the law and administer
the affairs of government, must restrain its enthusiasm to sally forth
into the domain of political action expressly and exclusively reserved by
the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie
their hands to a specific procedure for popular ratification of their
organic law. That would be incompatible with their sovereign character
of which We are reminded by Section 1, of Article II of both the 1935
and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people
cannot violate the procedure for ratification which they themselves
define in their Constitution, cannot apply to a unitary state like the

Republic of the Philippines. His opinion expressed in 1868 may apply to

a Federal State like the United States, in order to secure and preserve
the existence of the Federal Republic of the United States against any
radical innovation initiated by the citizens of the fifty (50) different
states of the American Union, which states may be jealous of the
powers of the Federal government presently granted by the American
Constitution. This dangerous possibility does not obtain in the case of
our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when
he wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia
Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a
milieu vastly different from 1868 to 1898, he might have altered his
views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by
the President in Proclamation No. 1102 that the people through their
Citizens' Assemblies had overwhelmingly approved the new
Constitution due regard to a separate, coordinate and co-equal branch
of the government demands adherence to the presumption of
correctness of the President's declaration. Such presumption is
accorded under the law and jurisprudence to officials in the lower levels
of the Executive branch, there is no over-riding reason to deny the
same to the Chief of State as head of the Executive Branch. WE cannot
reverse the rule on presumptions, without being presumptuous, in the
face of the certifications by the Office the Secretary of the Department
of Local Government and Community Development. (Annexes 1, to 1-E,
Annexes 2 to 2-O to the compliance with manifestation filed by the
Solicitor General on behalf of the respondents public officers dated
March 7, 1973). There is nothing in the records that contradicts, much
less overthrow the results of the referendum as certified. Much less are
We justified in reversing the burden of proof by shifting it from the
petitioners to the respondents. Under the rules on pleadings, the
petitioners have the duty to demonstrate by clear and convincing
evidence their claim that the people did not ratify through the Citizens'
Assemblies nor adopt by acquiescence the 1973 Constitution. And have
failed to do so.
No member of this Tribunal is justified in resolving the issues posed by
the cases at bar on the basis of reports relayed to him from private
sources which could be biased and hearsay, aside from the fact that
such reports are not contained in the record. Proclamation No. 1102 is
not just an ordinary act of the Chief Executive. It is a well-nigh solemn
declaration which announces the highest act of the sovereign people
their imprimatur to the basic Charter that shall govern their lives
hereafter may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that
the term "Filipino people" in the preamble as well as "people" in
Sections 1 and 5 of Article II of the 1935 Constitution and in Section
1(3) of Article III of the Bill of Rights includes all Filipino citizens of all
ages, of both sexes, whether literate or illiterate, whether peaceful
citizens, rebels, secessionists, convicts or ex-convicts. Without
admitting that ex-convicts voted in the referendum, about which no
proof was even offered, these sectors of our citizenry, whom petitioners
seem to regard with contempt or decision and whom petitioners would
deny their sovereign right to pass upon the basic Charter that shall
govern their lives and the lives of their progenies, are entitled as much
as the educated, the law abiding, and those who are 21 years of age or
above to express their conformity or non conformity to the proposed
Constitution, because their stake under the new Charter is not any less
than the stake of the more fortunate among us. As a matter of fact,
these citizens, whose juridical personality or capacity to act is limited
by age, civil interdiction or ignorance deserve more solicitude from the
State than the rest of the citizenry. In the ultimate analysis, the
inclusion of those from 15 years up to below 21 years old, the exconvicts and the ignorant, is more democratic as it broadens the base
of democracy and therefore more faithful to the express affirmation in
Section 1 of Article II of the Declaration of Principles that "sovereignty
resides in the people and all government authority emanates from
them."
Moreover, ex-convicts granted absolute pardon are qualified to vote.
Not all ex-convicts are banned from voting. Only those who had been
sentenced to at least one year imprisonment are disenfranchised but
they recover their right of suffrage upon expiration of ten years after
service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, exconvicts and imbeciles constitute a very negligible number in any
locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the
prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification to the results of the same from the Department of
Local Governments. But there was such certification as per Annex 1 to
1-A to the Notes submitted by the Solicitor General counsel for
respondents public officers. This should suffice to dispose of this point.
Even in the absence of such certification, in much the same way that in
passing law, Congress or the legislative body is presumed to be in
possession of the facts upon which such laws are predicated (Justice
Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing
Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs.
Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed that

the President was in possession of the fact upon which Proclamation No.
1102 was based. This presumption is further strengthened by the fact
that the Department of Local Governments, the Department National
Defense and the Philippine Constabulary as well the Bureau of Posts are
all under the President, which offices as his alter ego, are presumptively
acting for and in behalf of the President and their acts are valid until
disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62;
Villen vs. Secretary of Interior, 67 Phil. 451). To deny the truth or the
proclamation of the President as to the overwhelming majority vote in
the Citizens' Assemblies in favor of the new Constitution, is to charge
the President with falsification, which is a most grievous accusation.
Under the, rules of pleadings and evidence, the petitioners have the
burden of proof by preponderance of evidence in civil cases and by
proof beyond reasonable doubt in criminal prosecutions, where the
accused is always presumed to be innocent. Must this constitutional
right be reversed simply because the petitioner all assert the contrary?
Is the rule of law they pretend invoke only valid as long as it favors
them?
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the
Chief of State. What reason is there to withhold such a presumption in
favor of the President? Does the fact that the President belong to the
party in power and that four (4) of the five (5) senators who are
petitioners in L-36165 belong to the opposition party, justify a
discrimination against the President in matters of this nature?
Unsupported as their word is by any credible and competent evidence
under the rules of evidence, must the word of the petitioners prevail
over that of the Chief Executive, because they happen to be former
senators and delegates to the Constitutional Convention? More than
any of the petitioners herein in all these cases, the incumbent President
realizes that he risks the wrath of his people being visited upon him and
the adverse or hostile verdict of history; because of the restrictions on
the civil liberties of his people, inevitable concomitants of martial law,
which necessarily entail some degree of sacrifice on the part of the
citizenry. Until the contrary is established or demonstrated, herein
petitioners should grant that the Chief Executive is motivated by what
is good for the security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot stand on the
proposition that the rights under the 1935 Constitution are absolute and
invulnerable to limitations that may be needed for the purpose of
bringing about the reforms for which the petitioners pretend to be
clamoring for and in behalf of the people. The five (5) petitioners in L36165 and four (4) of the seven (7) petitioners in L-36164 were all
participants in the political drama of this country since 1946. They are
witness to the frustrations of well-meaning Presidents who wanted to
effect the reforms, especially for the benefit of the landless and the
laboring class how politics and political bargaining had stymied the
effectuation of such reforms thru legislation. The eight (8) petitioners in
L-36164 and L-36165 may not have participated in the systematic
blocking of the desired reforms in Congress or outside of it; but the
question may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the century, for
the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27)
years since the inauguration of the Republic on July 4, 1946, no tangible
substantial reform had been effected, funded and seriously
implemented, despite the violent uprisings in the thirties, and from
1946 to 1952, and the violent demonstrations of recent memory.
Congress and the oligarchs acted like ostriches, "burying their heads in
timeless sand. "Now the hopes for the long-awaited reforms to be
within a year or to are brighter. It would seem therefore to the duty of
everyone including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided
for in the new or 1973 Constitution and thru the means prescribed in
that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in
placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and
by the sovereign people. This Court did not heed to the principle that
the courts are not the fountain of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment
of the people on the basic instrument which affects their very lives. WE
cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by
the sovereign people, to apply and interpret the Constitution and the
laws for the benefit of the people, not against them nor to prejudice
them. WE cannot perform an act inimical to the interest of Our
principal, who at any time may directly exercise their sovereign power
ratifying a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function
under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where
there was at least another government claiming to be the legitimate
organ of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head;
in the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra).

There is not even a rebel government duly organized as such even only
for domestic purposes, let alone a rebel government engaged in
international negotiations. As heretofore stated, both the executive
branch and the legislative branch established under the 1935
Constitution had been supplanted by the government functioning under
the 1973 Constitution as of January 17, 1973. The vice president
elected under the 1935 Constitution does not asset any claim to the
leadership of the Republic of the Philippines. Can this Supreme Court
legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant
in his appraisal of Chief Justice Roger Brooke Taney whom he calls the
"hero of the American Bar," because during the American civil war he
apparently had the courage to nullify the proclamation of President
Lincoln suspending the privileges of the writ of habeas corpus in Ex
parte Merryman (Federal Case No. 9487 [1861]). But who exactly was
Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the
Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657),
briefly recounts that he was born in 1777 in Calvert County, Maryland,
of parents who were landed aristocrats as well as slave owners.
Inheriting the traditional conservatism of his parents who belonged to
the landed aristocracy, Taney became a lawyer in 1799, practiced law
and was later appointed Attorney General of Maryland. He also was a
member of the Maryland state legislature for several terms. He was a
leader of the Federalist Party, which disintegrated after the war of 1812,
compelling him to join the Democratic Party of Andrew Jackson, also a
slave owner and landed aristocrat, who later appointed him first as
Attorney General of the United States, then Secretary of the Treasury
and in 1836 Chief Justice of the United States Supreme Court to
succeed Chief Justice John Marshall, in which position he continued for
28 years until he died on October 21, 1864. His death "went largely
unnoticed and unregretted." Because he himself was a slave owner and
a landed aristocrat, Chief Justice Taney sympathized with the Southern
States and, even while Chief Justice, hoped that the Southern States
would be allowed to secede peacefully from the Union. That he had no
sympathy for the Negroes was revealed by his decision in Dred Scott
vs. Sandford (19 How. 398 [1857]) where he pronounced that the
American Negro is not entitled to the rights of an American citizen and
that his status as a slave is determined by his returning to a slave state.
One can therefore discern his hostility towards President Lincoln when
he decided Ex parte Merryman, which animosity to say the least does
no befit a judicial mind. Such a man could hardly be spoken of as a hero
of the American Bar, least of all of the American nation. The choice of
heroes should not be expressed indiscriminately just to embellish one's
rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds.,
732-733), refers to Marshal Henri Philippe Petain as the genuine hero or
"Savior of Verdun"; because he held Verdun against the 1916 offensive
of the German army at the cost of 350,000 of his French soldiers, who
were then demoralized and plotting mutiny. Certainly, the surviving
members of the family of Marshal Petain would not relish the error. And
neither would the members of the clan of Marshal Foch acknowledge
the undeserved accolade, although Marshal Foch has a distinct place in
history on his own merits. The foregoing clarification is offered in the
interest of true scholarship and historical accuracy, so that the
historians, researchers and students may not be led astray or be
confused by esteemed counsel's eloquence and mastery of the spoken
and written word as well as by his eminence as law professor, author of
law books, political leader, and member of the newly integrated
Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L36164 did not address likewise his challenge to the five (5) senators
who are petitioners in L-36165 to also act as "heroes and idealists," to
defy the President by holding sessions by themselves alone in a hotel or
in their houses if they can muster a quorum or by causing the arrest of
other senators to secure a quorum and thereafter remove respondents
Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if
they believe most vehemently in the justice and correctness of their
position that the 1973 Constitution has not been validly ratified,
adopted or acquiesced in by the people since January 18, 1973 until the
present. The proclaimed conviction of petitioners in L-36165 on this
issue would have a ring of credibility, if they proceeded first to hold a
rump session outside the legislative building; because it is not
unreasonable to demand or to exact that he who exhorts others to be
brave must first demonstrate his own courage. Surely, they will not
affirm that the mere filing of their petition in L-36165 already made
them "heroes and idealists." The challenge likewise seems to insinuate
that the members of this Court who disagree with petitioners' views are
materialistic cowards or mercenary fence-sitters. The Court need not be
reminded of its solemn duty and how to perform it. WE refuse to believe
that petitioners and their learned as well as illustrious counsels,
scholars and liberal thinkers that they are, do not recognize the
sincerity of those who entertain opinions that clash with their own. Such
an attitude does not sit well with the dictum that "We can differ without
being difficult; we can disagree without being disagreeable," which
distinguished counsel in L-36165 is wont to quote.

WE reserve the right to prepare an extensive discussion of the other

points raised by petitioners, which We do not find now necessary to
deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE
CASES SHOULD BE DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by
the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR
ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment
or the revised or new Constitution has been validly submitted to the
people for ratification in accordance with the procedure prescribed by
the existing Constitution, is a justiciable question,accord all
presumption of validity to the constitutional amendment or the revised
or new Constitution after the government officials or the people have
adopted or ratified or acquiesced in the new Constitution or
amendment, although there was an illegal or irregular or no submission
at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934],
Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74
Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb. 379, 110
NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep. 1, 68
NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81
Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre
vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the
courts stressed that the constitutional amendment or the new
Constitution should not be condemned "unless our judgment its nullity
is manifest beyond reasonable doubt" (1971 case of Moore vs.
Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956 case of
Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced
that the presumption of constitutionality must persist in the absence of
factual foundation of record to overthrow such presumption (ErmitaMalate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT
OF CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well
as independent of, the three grand departments of the Government,
namely, the legislative, the executive and the judicial. As a fourth
separate and distinct branch, to emphasize its independence, the
Convention cannot be dictated to by either of the other three
departments as to the content as well as the form of the Charter that it
proposes. It enjoys the same immunity from interference or supervision
by any of the aforesaid branches of the Government in its proceedings,
including the printing of its own journals (Taada and Fernando,
Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and
Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in
that independence, for the purpose of maintaining the same
unimpaired and in order that its work will not be frustrated, the
Convention has the power to fix the date for the plebiscite and to
provide funds therefor. To deny the Convention such prerogative, would
leave it at the tender mercy of both legislative and executive branches
of the Government. An unsympathetic Congress would not be disposed
to submit the proposed Constitution drafted by the Constitutional
Convention to the people for ratification, much less appropriate the
necessary funds therefor. That could have been the fate of the 1973
Constitution, because the same abolished the Senate by creating a
unicameral National Assembly to be presided by a Prime Minister who
wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution
exercises primarily ceremonial prerogatives. The new Constitution
likewise shortened abruptly the terms of the members of the present
Congress (whose terms end on December 31, 1973, 1975 and 1977)
which provides that the new Constitution shall take effect immediately
upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact
that Section 2 of the same Article XVIII secures to the members of
Congress membership in the interim National Assembly as long as they
opt to serve therein within thirty (30) days after the ratification of the
proposed Constitution, affords them little comfort; because the
convening of the interim National Assembly depends upon the
incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution).
Under the foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be disposed to call
a plebiscite and appropriate funds therefor to enable the people to pass
upon the 1973 Constitution, ratification of which means their
elimination from the political scene. They will not provide the means for
their own liquidation.
Because the Constitutional Convention, by necessary implication as it is
indispensable to its independence and effectiveness, possesses the
power to call a plebiscite and to appropriate funds for the purpose, it
inescapably must have the power to delegate the same to the
President, who, in estimation of the Convention can better determine
appropriate time for such a referendum as well as the amount
necessary to effect the same; for which reason the Convention thru
Resolution No. 29 approved on November 22, 1972, which superseded
Resolution No. 5843 adopted on November 16, 1972, proposed to the

President "that a decree be issued calling a plebiscite for the ratification

of the proposed new Constitution such appropriate date as he shall
determine and providing for the necessary funds therefor, ...," after
stating in "whereas" clauses that the 1971 Constitutional Convention
expected to complete its work by the end of November, 1972 that the
urgency of instituting reforms rendered imperative the early approval of
the new Constitution, and that the national and local leaders desire that
there be continuity in the immediate transition from the old to the new
Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern
the power to promulgate subordinate rules and regulations to
implement the law, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within
the ordinance-making power of the President under Section 63 of the
Revised Administrative Code, which expressly confers on the Chief
Executive the power to promulgate administrative acts and commands
touching on the organization or mode of operation of the
government or re-arranging or re-adjusting any district, division or part
of the Philippines "or disposing of issues of general concern ... ."
(Emphasis supplied). Hence, as consultative bodies representing the
localities including the barrios, their creation by the President thru
Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further
need of a plebiscite thereon, both issues of national concern is still
within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution
No. 5843, does not prescribe that the plebiscite must be conducted by
the Commission on Elections in accordance with the provisions of the
1971 Revised Election Code. If that were the intention of the
Constitutional Convention in making the delegation, it could have easily
included the necessary phrase for the purpose, some such phrase like
"to call a plebiscite to be supervised by the Commission on Elections in
accordance with the provisions of the 1971 Revised Election Code (or
with existing laws)." That the Constitutional Convention omitted such
phrase, can only mean that it left to the President the determination of
the manner by which the plebiscite should be conducted, who shall
supervise the plebiscite, and who can participate in the plebiscite. The
fact that said Resolution No. 29 expressly states "that copies of this
resolution as approved in plenary session be transmitted to the
President of the Philippines and the Commission on Elections for
implementation," did not in effect designate the Commission on
Elections as supervisor of the plebiscite. The copies of said resolution
that were transmitted to the Commission on Elections at best serve
merely to notify the Commission on Elections about said resolution, but
not to direct said body to supervise the plebiscite. The calling as well as
conduct of the plebiscite was left to the discretion of the President, who,
because he is in possession of all the facts funnelled to him by his
intelligence services, was in the superior position to decide when the
plebiscite shall be held, how it shall be conducted and who shall
oversee it.
It should be noted that in approving said Resolution No. 29, the
Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under
martial law by resolving to "propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite ... ." The use of the term
"decree" is significant for the basic orders regulating the conduct of all
inhabitants are issued in that form and nomenclature by the President
as the Commander in Chief and enforcer of martial law. Consequently,
the issuance by the President of Presidential Decree No. 73 on
December 1, 1972 setting the plebiscite on January 15, 1973 and
appropriating funds therefor pursuant to said Resolution No. 29, is a
valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making
power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power
delegated, and is beyond the competence of this Court to nullify. But
even if adequate criteria should be required, the same are contained in
the "Whereas" clauses of the Constitutional Convention Resolution No.
29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete
its work of drafting a proposed new Constitution for the Republic by the
end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early
approval of the New Constitution has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be
continuity in the immediate political transition from the old to the New
Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional
Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio
and the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct
the submission to the people for ratification as contemplated in Article
XV of the Constitution. Here it did not do so. With Congress not being in

session, could the President, by the decree under question, call for such
a plebiscite? Under such circumstances, a negative answer certainly
could result in the work of the Convention being rendered nugatory.
The view has been repeatedly expressed in many American state court
decisions that to avoid such undesirable consequence the task of
submission becomes ministerial, with the political branches devoid of
any discretion as to the holding of an election for that purpose. Nor is
the appropriation by him of the amount necessary to be considered as
offensive to the Constitution. If it were done by him in his capacity as
President, such an objection would indeed have been formidable, not to
say insurmountable. If the appropriation were made in his capacity as
agent of the Convention to assure that there be submission to the
people, then such an argument loses force. The Convention itself could
have done so. It is understandable why it should be thus. If it were
otherwise, then a legislative body, the appropriating arm of the
government, could conceivably make use of such authority to compel
the Convention to submit to its wishes, on pain of being rendered
financially distraught. The President then, if performing his role as its
agent, could be held as not devoid of such competence. (pp. 2-3,
concurring opinion of J. Fernando in L-35925, etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and
alluded to their arguments during the hearings on December 18 and 19,
1972 on the Plebiscite Cases. But the inclusion of questionable or
ambiguous provisions does not affect the validity of the ratification or
adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841;
7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the
American Constitution, answering the critics of the Federal Constitution,
stated that: "I never expect to see a perfect work from imperfect man.
The result of the deliberations of all collective bodies must necessarily
be a compound, as well of the errors and prejudices as of the good
sense and wisdom, of the individuals of whom they are composed. The
compacts which are to embrace thirteen distinct States in a common
bond of amity and union, must necessarily be a compromise of as many
dissimilar interests and inclinations. How can perfection spring from
such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it
contains provisions which are ultra vires or beyond the power of the
Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of
government from Presidential to Parliamentary and including such
provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV
Sec. 3. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer
as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses may produce, and
particularly describing the place to be searched, and the persons or
things to be seized.
Article XIV
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight
and of this Article notwithstanding, the Prime Minister may enter into
international treaties or agreements as the national welfare and interest
may require." (Without the consent of the National Assembly.)
Article XVII
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part
of the law of the land, and shall remain valid, legal, binding and
effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered into
by the Government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations, are
hereby recognized as legal, valid and binding. When the national
interest so requires, the incumbent President of the Philippines or the
interim Prime Minister may review all contracts, concessions, permits,
or other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into, granted,
issued or acquired before the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948,
L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto
Concepcion, concurred in by Justices Fernando, Barredo, Antonio and
the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested
provisions of the proposed Constitution, it is my considered view that
the Convention was legally deemed fit to propose save perhaps what
is or may be insistent with what is now known, particularly in
international law, as Jus Cogens not only because the Convention
exercised sovereign powers delegated thereto by the people

although insofar only as the determination of the proposals to be made

and formulated by said body is concerned but also, because said
proposals cannot be valid as part of our Fundamental Law unless and
until "approved by the majority of the votes cast at an election which"
said proposals "are submitted to the people for their ratification," as
provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 17-18,
Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476,
Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has the
authority to "entirely overhaul the present Constitution and propose an
entirely new Constitution based on an ideology foreign to the
democratic system ...; because the same will be submitted to the
people for ratification. Once ratified by the sovereign people, there can
be no debate about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: "...
it seems to me a sufficient answer that once convened, the area open
for deliberation to a constitutional convention ..., is practically limitless"
(citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch
Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW
245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543
[1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v.
Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE
881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl.
202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich.
338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning,
such limitation of the scope of their function and objective was not in
their minds."
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention
adjourned on November 30, 1972 without officially promulgating the
said Constitution in Filipino as required by Sections 3(1) of Article XV on
General Provisions of the 1973 Constitution. This claim is without merit
because their Annex "M" is the Filipino version of the 1973 Constitution,
like the English version, contains the certification by President Diosdado
Macapagal of the Constitutional Convention, duly attested by its
Secretary, that the proposed Constitution, approved on second reading
on the 27th day of November, 1972 and on third reading in the
Convention's 291st plenary session on November 29, 1972 and
accordingly signed on November 1972 by the delegates whose
signatures are thereunder affixed. It should be recalled that
Constitutional Convention President Diosdado Macapagal was, as
President of the Republic 1962 to 1965, then the titular head of the
Liberal Party to which four (4) of the petitioners in L-36165 including
their counsel, former Senator Jovito Salonga, belong. Are they
repudiating and disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such
amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments
are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election called by Congress at
which the amendments are submitted for ratification by the qualified
electors defined in Article V hereof, supervised by the Commission on
Elections in accordance with the existing election law and after such
amendments shall have been published in all the newspapers of
general circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who
have the sole power of ratification, which imposition by the Court is
never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and
tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess through
some kind of escamotage. This Court should not commit such a grave
error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission,
due to absence of substantial compliance with the procedure prescribed
by the Constitution and/or the law, nullifies the proposed amendment or
the new Constitution, the procedure prescribed by the state
Constitution is so detailed that it specifies that the submission should
be at a general or special election, or at the election for members of the
State legislature only or of all state officials only or of local officials
only, or of both state and local officials; fixes the date of the election or
plebiscite limits the submission to only electors or qualified electors;
prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite; and
designates the officer to conduct the plebiscite, to canvass and to
certify the results, including the form of the ballot which should so state
the substance of the proposed amendments to enable the voter to vote
on each amendment separately or authorizes expressly the

Constitutional Convention or the legislature to determine the procedure

or certain details thereof. See the State Constitutions of Alabama
[1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut
[1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851];
Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this
Constitution by the legislature in the manner following: The proposed
amendments shall be read in the house in which they originate on three
several days, and, if upon the third reading, three-fifths of all the
members elected to that house shall vote in favor thereof, the proposed
amendments shall be sent to the other house, in which they shall
likewise be read on three several days, and if upon the third reading,
three-fifths of all the members elected that house shall vote in favor of
the proposed amendments, the legislature shall order an election by
the qualified electors of the state upon such proposed amendments, to
be held either at the general election next succeeding the session of
the legislature at which the amendments are proposed or upon another
day appointed by the legislature, not less than three months after the
final adjournment of the session of the legislature at which the
amendments were proposed. Notice of such election, together with the
proposed amendments, shall be given by proclamation of the
governor, which shall be published in every county in such manner as
the legislature shall direct, for at least eight successive weeks next
preceding the day appointed for such election. On the day so appointed
an election shall be held for the vote of the qualified electors of the
state upon the proposed amendments. If such election be held on the
day of the general election, the officers of such general election shall
open a poll for the vote of the qualified electors upon the proposed
amendments; if it be held on a day other than that of a general
election, officers for such election shall be appointed; and the election
shall be held in all things in accordance with the law governing general
elections. In all elections upon such proposed amendments, the votes
cast thereat shall be canvassed, tabulated, and returns thereof be
made to the secretary of state, and counted, in the same manner as in
elections for representatives to the legislature; and if it shall thereupon
appear that a majority of the qualified electors who voted at such
election upon the proposed amendments voted in favor of the same,
such amendments shall be valid to all intents and purposes as parts of
this Constitution. The result of such election shall be made known by
proclamation of the governor. Representation in the legislature shall be
based upon population, and such basis of representation shall not be
changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all
elections provided for in section 284 of this Constitution, the substance
or subject matter of each proposed amendment shall be so printed that
the nature thereof shall be clearly indicated. Following each proposed
amendment on the ballot shall be printed the word "Yes" and
immediately under that shall be printed the word "No". The choice of
the elector shall be indicated by a cross mark made by him or under his
direction, opposite the word expressing his desire, and no amendment
shall be adopted unless it receives the affirmative vote of a majority of
all the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General
Assembly at a regular session thereof may propose amendments to this
Constitution, and, if the same be agreed to by a majority of all the
members, elected to each house, such proposed amendments shall be
entered on the journal with the yeas and nays, and published in at least
one newspaper in each county, where a newspaper is published, for six
months immediately preceding the next general election for Senators
and Representatives, at which time the same shall be submitted to the
electors of the State for approval or rejection, and if a majority of the
electors voting at such election adopt such amendments, the same
shall become a part of this Constitution; but no more than three
amendments shall be proposed or submitted at the same time. They
shall be so submitted as to enable the electors to vote on each
amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions
for the amendment of this constitution may be made by either branch
of the legislature; and if two thirds of all the members elected to each
house shall concur therein, such proposed amendments, together with
the yeas and nays, shall be entered on the journal; and the secretary of
state shall cause the same to be published in at least one newspaper in
each county of the state where a newspaper is published, for three
months preceding the next election for representatives, at which time,
the same shall be submitted to the electors, for their approval or
rejection; and if a majority of the electors voting on said amendments,
at said election, shall adopt the amendments, the same shall become a
part of the constitution. When more than one amendment shall be
submitted at the same time, they shall be so submitted as to enable
the electors to vote on each amendments separately; and not more

than three propositions to amend shall be submitted at the same

election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to voters;
governor's proclamation. The General Assembly may propose
Amendments to this Constitution; provided that each Amendment shall
be embraced in a separate bill, embodying the Article or Section, as the
same will stand when amended and passed by three fifths of all the
members elected to each of the two Houses, by yeas and nays, to be
entered on the Journals with the proposed Amendment. The bill or bills
proposing amendment or amendments shall be published by order of
the Governor, in at least two newspapers, in each County, where so
many may be published, and where not more than one may be
published, then in the newspaper, and in three newspapers published in
the City of Baltimore, once a week for four weeks immediately
preceding the next ensuing general election, at which the proposed
amendment or amendments shall be submitted, in a form to be
prescribed by the General Assembly, to the qualified voters of the State
for adoption or rejection. The votes cast for and against said proposed
amendment or amendments, severally, shall be returned to the
Governor, in the manner prescribed in other cases, and if it shall appear
to the Governor that a majority of the votes cast at said election on said
amendment or amendments, severally, were cast in favor thereof, the
Governor shall, by his proclamation, declare the said amendment or
amendments having received said majority of votes, to have been
adopted by the people of Maryland as part of the Constitution thereof,
and henceforth said amendment or amendments shall be part of the
said Constitution. When two or more amendments shall be submitted in
the manner aforesaid, to the voters of this State at the same election,
they shall be so submitted as that each amendment shall be voted on
separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or
by the initiative. All amendments proposed by the general assembly or
by the initiative shall be submitted to the electors for their approval or
rejection by official ballot title as may be provided by law, on a separate
ballot without party designation, at the next general election, or at a
special election called by the governor prior thereto, at which he may
submit any of the amendments. No such proposed amendment shall
contain more than one amended and revised article of this constitution,
or one new article which shall not contain more than one subject and
matters properly connected therewith. If possible, each proposed
amendment shall be published once a week for two consecutive weeks
in two newspapers of different political faith in each county, the last
publication to be not more than thirty nor less than fifteen days next
preceding the election. If there be but one newspaper in any county,
publication of four consecutive weeks shall be made. If a majority of the
votes cast thereon is in favor of any amendment, the same shall take
effect at the end of thirty days after the election. More than one
amendment at the same election shall be so submitted as to enable the
electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific
procedure, much less a detailed procedure for submission or
ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it
designate the Commission on Elections to supervise the plebiscite.
Neither does it limit the ratification to the qualified electors as defined
in Article V of the 1935 Constitution. Much less does it require the
publication of the proposed Constitution for any specific period before
the plebiscite nor does it even insinuate that the plebiscite should be
supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for
submission of the proposed Constitution to the people for ratification. It
does not make any reference to the Commission on Elections as the
body that shall supervise the plebiscite. And Article XV could not make
any reference to the Commission on Elections because the original
1935 Constitution as ratified on May 14, 1935 by the people did not
contain Article X on the Commission on Elections, which article was
included therein pursuant to an amendment by that National Assembly
proposed only about five (5) years later on April 11, 1940, ratified by
the people on June 18, 1940 as approved by the President of the United
States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703,
713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be
said that the original framers of the 1935 Constitution as ratified May
14, 1935 intended that a body known as the Commission on Elections
should be the one to supervise the plebiscite, because the Commission
on Elections was not in existence then as was created only by
Commonwealth Act No. 607 approved on August 22, 1940 and
amended by Commonwealth Act No. 657 approved on June 21, 1941
(see Taada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed.,
pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715; 73 Phil.
288, 290-300; Taada & Fernando, Constitution of the Philippines, 1953
ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet
in existence, the former Department of Interior (now Department of
Local Governments and Community Development) supervised the
plebiscites on the 1937 amendment on woman's suffrage, the 1939

amendment to the Ordinance appended to the 1935 Constitution

(Tydings-Kocialkowski Act of the U.S. Congress) and the three 1940
amendments on the establishment of a bicameral Congress, the reelection of the President and the Vice-President, and the creation of the
Commission on Elections (ratified on June 18, 1940). The supervision of
said plebiscites by the then Department of Interior was not automatic,
but by virtue of an express authorization in Commonwealth Act Nos. 34,
49 and 517.
If the National Assembly then intended that the Commission on
Elections should also supervise the plebiscite for ratification of
constitutional amendments or revision, it should have likewise proposed
the corresponding amendment to Article XV by providing therein that
the plebiscite on amendments shall be supervised by the Commission
on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the
same on May 14, 1935 wanted that only the qualified voters under
Article V of the 1935 Constitution should participate in the referendum
on any amendment or revision thereof, they could have provided the
same in 1935 or in the 1940 amendment by just adding a few words to
Article XV by changing the last phrase to "submitted for ratification to
the qualified electors as defined in Article V hereof," or some such
similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning.
Thus in the preamble, the term "Filipino people" refer, to all Filipino
citizens of all ages of both sexes. In Section 1 of Article II on the
Declaration of Principles, the term "people" in whom sovereignty
resides and from whom all government authority emanates, can only
refer also to Filipino citizens of all ages and of both sexes. But in Section
5 of the same Article II on social justice, the term "people"
comprehends not only Filipino citizens but also all aliens residing in the
country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III
on the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a
right to the electorate, it does so expressly as the case of the election
of senators and congressmen. Section 2 Article VI expressly provides
that the senators "shall be chosen at large by the qualified electors of
the Philippines as may provided by law." Section 5 of the same Article
VI specifically provides that congressmen shall "be elected by the
qualified electors." The only provision that seems to sustain the theory
of petitioners that the term "people" in Article XV should refer to the
qualified electors as defined in Article V of the 1935 Constitution is the
provision that the President and Vice-President shall be elected "by
direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution).
But this alone cannot be conclusive as to such construction, because of
explicit provisions of Sections 2 and 5 of Article VI, which specifically
prescribes that the senators and congressmen shall be elected by the
qualified electors.
As aforesaid, most of the constitutions of the various states of the
United States, specifically delineate in detail procedure of ratification of
amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending
Process of the 1934-35 Constitutional Convention satisfied that the
amendment shall be submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35 Constitutional
Convention did intend to limit the term "people" in Article XV of the
1935 Constitution to qualified electors only. As above demonstrated,
the 1934-35 Constitutional Convention limits the use of the term
"qualified electors" to elections of public officials. It did not want to tie
the hands of succeeding future constitutional conventions as to who
should ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution
on constitutional amendment contemplates the automatic applicability
of election laws to plebiscites on proposed constitutional amendments
or revision.
The very phraseology of the specific laws enacted by the National
Assembly and later by Congress, indicates that there is need of a
statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's
suffrage amendment enacted on September 30, 1936, consists of 12
sections and, aside from providing that "there shall be held a plebiscite
on Friday, April 30, 1937, on the question of woman's suffrage ... and
that said amendment shall be published in the Official Gazette in
English and Spanish for three consecutive issues at least fifteen (15)
days prior to said election, ... and shall be posted in a conspicuous
place in its municipal and provincial office building and in its polling
place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies
that the provisions of the Election Law regarding, the holding of
aspecial election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that
the votes cast according to the returns of the board of inspectors shall
be counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on
August 22, 1938, makes it expressly applicable to plebiscites. Yet the

subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No.
73 calling for the plebiscite on the constitutional amendments in 1939,
1940 and 1946, including the amendment creating the Commission on
Elections, specifically provided that the provisions of the existing
election law shall apply to such plebiscites insofar as they are not
inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as
Rep. Act No. 73. Thus
Commonwealth Act No. 492, enacted on September 19, 1939, calling
for a plebiscite on the proposed amendments to the Constitution
adopted by the National Assembly on September 15, 1939, consists of
8 sections and provides that the proposed amendments to the
Constitution adopted in Resolution No. 39 on September 15, 1939 "shall
be submitted to the Filipino people for approval or disapproval at
a general election to be held throughout the Philippines on Tuesday,
October 24, 1939"; that the amendments to said Constitution proposed
in "Res. No. 38, adopted on the same date, shall be submitted at
following election of local officials," (Sec. 1, Com. Act No. 492) that the
said amendments shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least ten (10) days prior to
the elections; that copies thereof shall be posted not later than October
20, 1939 (Sec. 2, Com. Act 492); that the election shall be
conducted according to provisions of the Election Code insofar as the
same may be applicable; that within thirty (30) days after the
election, Speaker of the National Assembly shall request the President
to call a special session of the Assembly for the purpose of canvassing
the returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on
April 25, 1940 and provided, among others: that the plebiscite on the
constitutional amendments providing bicameral Congress, re-election of
the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1);
that said amendments shall be published in three consecutive issues of
the Official Gazette in English and Spanish at least 20 days prior to the
election and posted in every local government office building and
polling place not later than May 18, 1940 (Sec. 2); that the election
shall be conducted in conformity with the Election Code insofar as the
same may be applicable (Sec. 3) that copies of the returns shall be
forwarded to the Secretary of National Assembly and the Secretary of
Interior (Sec. 7); that the National Assembly shall canvass the returns to
certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a
plebiscite on the parity amendment consists of 8 sections provides that
the Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11,
1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No.
73); that the said amendment shall be published in English and Spanish
in three consecutive issues of the Official Gazette at least 20 days prior
to the election; that copies of the same shall be posted in a
conspicuous place and in every polling place not later than February
11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No.
357 (Election Code) and Com. Act No. 657 creating the Commission on
Elections, shall apply to the election insofar as they are not inconsistent
with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the
election, the Senate and House of Representatives shall hold a joint
session to canvass the returns and certify the results thereof (Section 6,
R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic
application of the election law; and even at that, not all the provisions
of the election law were made applicable because the various laws
aforecited contain several provisions which are inconsistent with the
provisions of the Revised Election Code (Com. Act No. 357). Moreover, it
should be noted that the period for the publication of the copies of the
proposed amendments was about 10 days, 15 days or 20 days, and for
posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as
amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of
the 1935 Constitution, there would be no need for Congress to
expressly provide therefor in the election laws enacted after the
inauguration of the Commonwealth government under the 1935
Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote
and how they shall vote. Unlike the various State Constitutions of the
American Union (with few exceptions), Article XV does not state that
only qualified electors can vote in the plebiscite. As above-intimated,
most of the Constitutions of the various states of the United States
provide for very detailed amending process and specify that only
qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as
the Barrio Charter, which was approved on June 17, 1967 and
superseded Republic Act No. 2370, expanded the membership of the
barrio assembly to include citizens who are at least 18 years of age,
whether literate or not, provided they are also residents of the barrio for
at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. The barrio assembly shall consist of all
persons who are residents of the barrio for at least six
months, eighteen years of age or over, citizens of the Republic of the

Philippines and who are duly registered in the list of barrio assembly
members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual
report of the barrio council concerning the activities and finances of the
barrio.
It shall meet also at the case of the barrio council or upon written
petition of at least One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is
given one week prior to the meeting except in matters involving public
safety or security in which case notice within a reasonable time shall be
sufficient. The barrio captain, or in his absence, the councilman acting
as barrio captain, or any assembly member selected during the
meeting, shall act as presiding officer at all meetings of the barrio
assembly. The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary shall discharge
the duties of secretary of the barrio assembly.
For the purpose of conducting business and taking any official action in
the barrio assembly, it is necessary that at least one-fifth of the
members of the barrio assembly be present to constitute a quorum. All
actions shall require a majority vote of these present at the meeting
there being a quorum.
Sec. 5. Powers of the barrio assembly. The powers of the barrio
assembly shall be as follows:
a. To recommend to the barrio council the adoption of measures for the
welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in Section 6 of
this Act;
c. To act on budgetary and supplemental appropriations and special tax
ordinances submitted for its approval by the barrio council; and
d. To hear the annual report council concerning the activities and
finances of the assembly.
Sec. 6. Plebiscite. A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio
assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite
shall be held until after thirty days from its approval by either body, and
such plebiscite has been given the widest publicity in the barrio, stating
the date, time, and place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other information relevant to
the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote
in the plebiscite. Voting procedures may be made either in writing as in
regular election, and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act, in case of vacancies in
this body, the barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority
vote of all the barrio assembly members registered in the list of barrio
secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. Every citizen of the
Philippines, twenty-one years of age or over, able to read and write,
who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters
kept by the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to suffer one
year or more of imprisonment, within two years after service of his
sentence;
b. Any person who has violated his allegiance to the Republic of the
Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any
member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on which requires "a
majority vote of all of the barrio assembly members registered in the
list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such
plebiscite may be authorized by a majority vote of the members
present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,
who are at least 21 years of age, able to read and write, residents of
the barrio during the 6 months immediately preceding the election and
duly registered in the list of voters kept by the barrio secretary, not
otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides
that "voting procedures may be made ... either in writing as in regular
elections, and/or declaration by the voters to the board of election
tellers."
That said paragraph 2 of Section 6 provides that "all duly registered
barrio assembly members qualified to vote may vote in the plebiscite,"
cannot sustain the position of petitioners in G.R. No. L-36165 that only
those who are 21 years of age and above and who possess all other
qualifications of a voter under Section 10 of R.A. No. 3590, can vote on
the plebiscites referred to in Section 6; because paragraph 3 of Section
6 does not expressly limit the voting to those with the qualifications

under Section 10 as said Section 6 does not distinguish between those

who are 21 or above on the one hand and those 18 or above but below
21 on the other, and whether literate or not, to constitute a quorum of
the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years
of age or above; and that only those who are 21 years of age or over
and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or
not. Republic Act No. 3590 could simply have restated Section 4 of
Republic Act No. 2370, the old Barrio Charter, which provided that only
those who are 21 and above can be members of the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L-36165
and two of the petitioners in L-36164 participated in the enactment of
Republic Act No. 3590 and should have known the intendment of
Congress in expanding the membership of the barrio assembly to
include all those 18 years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government
and Community Development who tabulated the results of the
referendum all over the country. The accuracy of such tabulation and
certification by the said Department Secretary should likewise be
presumed; because it was done in the regular performance of his
official functions aside from the fact that the act of the Department
Secretary, as an alter ego of the President, is presumptively the act of
the President himself unless the latter disapproves or reprobates the
same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the
certification by the Department Secretary and the Chief Executive on
the results of the referendum, is further strengthened by the affidavits
and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto
S. Amoranto of Quezon City and Councilor Eduardo T. Parades of
Quezon City.
The procedure for the ratification of the 1937 amendment on woman
suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral
Congress, creating the Commission on Elections and providing for two
consecutive terms for the President, and the 1947 parity amendment,
cannot be invoked; because those amendments were proposed by the
National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a constituent assembly
in all the other amendments aforementioned and therefore as such,
Congress had also the authority to prescribe the procedure for the
submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an
independent Constitutional Convention, which as heretofore discussed,
has the equal power to prescribe the modality for the submission of the
1973 Constitution to the people for ratification or delegate the same to
the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor
Norberto Amoranto could be utilized as the basis for the extrapolation
of the Citizens' Assemblies in all the other provinces, cities and
municipalities in all the other provinces, cities and municipalities, and
the affirmative votes in the Citizens' Assemblies resulting from such
extrapolation would still constitute a majority of the total votes cast in
favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157
Yes votes against 292,530 No votes. In Cavite province, there were
249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of
respondents' Compliance (the certification by the Department of Local
Government and Community Development), while the alleged
certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes
votes and 5,577 No votes. If such a ratio is extended by way of
extrapolation to the other provinces, cities and towns of the country,
the result would still be an overwhelming vote in favor of the 1973
Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true;
because in his duly acknowledged certification dated March 16, 1973,
he states that since the declaration of martial law and up to the present
time, he has been under house arrest in his residence in Urdaneta
Village, Makati, Rizal; that he never participated in the conduct of the
Citizens' Assemblies on January 10 15, 1973 in the province of Cavite;
that the acting chairman and coordinator of the Citizens' Assemblies at
that time was Vice-Governor Dominador Camerino; and that he was
shown a letter for his signature during the conduct of the Citizens'
Assemblies, which he did not sign but which he referred to ViceGovernor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20,
1973).

Mayor Pablo Cuneta likewise executed an affidavit dated March 16,

1973 stating that on January 15, 1973, he caused the preparation of a
letter addressed to Secretary Jose Roo of the Department of Local
Government and Community Development showing the results of the
referendum in Pasay City; that on the same day, there were still in any
Citizens' Assemblies holding referendum in Pasay City, for which reason
he did not send the aforesaid letter pending submittal of the other
results from the said Citizens' Assemblies; and that in the afternoon of
January 15, 1973, he indorsed the complete certificate of results on the
referendum in Pasay City to the Office of the President (Annex 5Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of
Pasay City also issued an affidavit dated March 15, 1973 stating that a
certain Atty. Delia Sutton of the Salonga Law Office asked him for the
results of the referendum; that he informed her that he had in his
possession unsigned copies of such results which may not be
considered official as they had then no knowledge whether the original
thereof had been signed by the mayor; and that in spite of his advice
that said unsigned copies were not official, she requested him if she
could give her the unofficial copies thereof, which he gave in good faith
(Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens'
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165).
The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio
treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City,
states that "as far as we know, there has been no Citizens' Assembly
meeting in our Area, particularly in January of this year," does not
necessarily mean that there was no such meeting in said barrio; for she
may not have been notified thereof and as a result she was not able to
attend said meeting. Much less can it be a basis for the claim that there
was no meeting at all in the other barrios of Quezon City. The barrio
captain or the secretary of the barrio assembly could have been a
credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon
City Ratification and Coordinating Council, certified on March 12, 1973
that as such chairman he was in charge of the compilation and
tabulation of the results of the referendum among the Citizens'
Assemblies in Quezon City based on the results submitted to the
Secretariat by the different Citizens' Assemblies; but many results of
the referendum were submitted direct to the national agencies having
to do with such activity and all of which he has no knowledge,
participation and control (Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16,
1973 that he prepared a letter to the President dated January 15, 1973
informing him of the results of the referendum in Rizal, in compliance
with the instruction of the National Secretariat to submit such letter 2 or
3 days from January 10 to show the trend of voting in the Citizens'
Assemblies; that the figures 614,157 and 292,530 mentioned in said
letter were based on the certificates of results in his possession as of
January 14, 1973, which results were made the basis of the
computation of the percentage of voting trend in the province; that his
letter was never intended to show the final or complete result in the
referendum in the province as said referendum was then still going on
from January 14-17, 1973, for which reason the said letter merely
stated that it was only a "summary result"; and that after January 15,
1973, he sent to the National Secretariat all the certificates of results in
26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the
Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department
of Local Government and Community Development, issued a certificate
dated March 16, 1973 that she was shown xerox copies of unsigned
letters allegedly coming from Governor Lino Bocalan dated January 15,
1973 and marked "Rejoinder Annex Cavite" addressed to the President
of the Philippines through the Secretary of the Department of Local
Government and Community Development and another unsigned letter
reportedly from Mayor Pablo Cuneta dated January 15, 1973 and
marked "Rejoinder Annex Pasay City" addressed to the Secretary of the
Department of Local Government and Community Development; that
both xerox copies of the unsigned letters contain figures showing the
results of the referendum of the Citizens' Assemblies in those areas;
and that the said letters were not received by her office and that her
records do not show any such documents received by her office (Annex
2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to
deceive this Court by representing said unsigned letters and/or
certificates as duly signed and/or containing the complete returns of the
voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged
report of Governor Lino Bocalan of Cavite who repudiated the same as
not having been signed by him for he was then under house arrest, on
the one hand, and the number of votes certified by the Department of
Local Government and Community Development, on the other, to the
effect that even assuming the correctness of the figures insisted on by
counsel for petitioners in L-36165, if they were extrapolated and
applied to the other provinces and cities of the country, the Yes votes
would still be overwhelmingly greater than the No votes, applies equally
to the alleged discrepancy between the figures contained in the
certification of the Secretary of the Department of Local Government

and Community Development and the figures furnished to counsel for

petitioners in L-36165 concerning the referendum in Camarines Sur,
Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines
Sur, shows that there were more votes in favor of the plebiscite to be
held later than those against, only serve to emphasize that there was
freedom of voting among the members of the Citizens' Assemblies all
over the country during the referendum from January 10 to 15, 1973
(Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If there
was no such freedom of choice, those who wanted a plebiscite would
not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms
the "strong manifestation of approval of the new Constitution by almost
97% by the members of the Citizens' Assemblies in Camarines Sur"
(Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the
members of the Citizens' Assemblies voted overwhelmingly in favor of
the new Constitution despite the fact that the second set of questions
including the question "Do you approve of the new Constitution?" was
received only on January 10. Provincial Governor Pascual stated that
"orderly conduct and favorable results of the referendum" were due not
only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic
participation by the people, showing "their preference and readiness to
accept this new method of government to people consultation in
shaping up government policies." (Annex-Bataan to Rejoinder of
Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they
are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740
[1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of
actual voters in the referendum in certain localities may exceed the
number of voters actually registered for the 1971 elections, can only
mean that the excess represents the qualified voters who are not yet
registered including those who are at least 15 years of age and the
illiterates. Although ex-convicts may have voted also in the referendum,
some of them might have been granted absolute pardon or were
sentenced to less than one year imprisonment to qualify them to vote
(Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts
constitute a negligible number, discounting which would not tilt the
scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973
that he does not "feel authorized by the proper authorities to confirm or
deny the data" concerning the number of participants, the Yes votes
and No votes in the referendum on the new Constitution among the
members of the Citizens' Assemblies in Caloocan City, does not
necessarily give rise to the inference that Mayor Samson of Caloocan
City is being intimidated, having been recently released from detention;
because in the same letter of Mayor Samson, he suggested to counsel
for petitioners in L-36165 that he can secure "the true and legitimate
results of the referendum" from the Office of the President (Annex
Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned
and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies
heavily on the computation of the estimated turnover in the Citizens'
Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology,
ostensibly a close relative of former Senator Jovito R. Salonga, eminent
counsel for petitioners in L-36165 (Annex M-as amended, to
Consolidated Rejoinder of petitioners in L-36165 to the Notes of
Arguments and Memorandum of respondents). Professor Salonga is not
a qualified statistician, which all the more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his
letter dated March 16, 1973 address to the Secretary of the Department
of Local Government and Community Development, refutes the said
computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered
voters and the 15-20-year-old youths (1972) will have to be estimated
in order to give a 101.9% estimate of the percentage participation of
the "15-20 year old plus total number of qualified voters" which does
not deem to answer the problem. This computation apparently fails to
account for some 5.6 million persons "21 years old and over" who were
not registered voters (COMELEC), but who might be qualified to
participate at the Citizen's Assembly.
2) The official population projection of this office (medium assumption)
for "15 year olds and over" as of January 1, 1973 is 22.506 million. If
total number of participants at the Citizens' Assembly Referendum held
on January 10-15, 1973 was 16.702 million, participation rate will
therefore be the ratio of the latter figure to the former which gives
74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The
"difference or implied number of 15-20 year olds" of 5,039,906 would
represent really not only all 15-year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at the
time, assuming that all the 11,661,909 registered voted at Citizens'
Assembly. Hence, the "estimate percentage participation of 15-20 years
olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of "15-20 years old" one must divide the
number in this age group, which was estimated to be 4.721 million as of

January 1, 1973 by the population of "15 years old and over" for the
same period which was estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include
names of voters who are already dead. It cannot therefore be assumed
that all of them participated at the Citizens' Assembly. It can therefore
be inferred that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than 10,548,197 and
hence the "difference or implied number of registered voters that
participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified
voters that supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to
Problem] more than 1.71 and that for (b), accordingly, will also be less
than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as
of January 21, 1973, the official population projection for 15-year olds
and over is 22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971
numbered 11,661,909, the difference between 16,702,000 who
participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which
may include not only the 15-year olds and above but below 21 but also
the qualified electors who were not registered before the November 8,
1971 elections as well as illiterates who are 15 years old and above but
below 21.
Moreover, in the last Presidential election in November, 1969, We found
that the incumbent President obtained over 5,000,000 votes as against
about 3,000,000 votes for his rival LP Senator Sergio Osmea, Jr.,
garnering a majority of from about 896,498 to 1,436,118 (Osmea, Jr.
vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in
favor of the 1973 Constitution during the referendum from January 10
to 15, 1973. It should also be stressed that many of the partisans of the
President in the 1969 Presidential elections, have several members in
their families and relatives who are qualified to participate in the
referendum because they are 15 years or above including illiterates,
which fact should necessarily augment the number of votes who voted
for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily
inconsistent with freedom of choice, because the people fear to
disagree with the President and Commander-in-Chief of the Armed
Forces of the Philippines and therefore cannot voice views opposite to
or critical of the position of the President on the 1973 Constitution and
on the mode of its ratification.
It is also claimed or urged that there can be no free choice during
martial law which inevitably generates fear in the individual. Even
without martial law, the penal, civil or administrative sanction provided
for the violation of ordinarily engenders fear in the individual which
persuades the individual to comply with or obey the law. But before
martial law was proclaimed, many individuals fear such sanctions of the
law because of lack of effective equal enforcement or implementation
thereof in brief, compartmentalized justice and extraneous pressures
and influences frustrated the firm and just enforcement of the laws. The
fear that is generated by martial law is merely the fear of immediate
execution and swift enforcement of the law and therefore immediate
infliction of the punishment or sanction prescribed by the law whenever
it is transgressed during the period of martial law. This is not the fear
that affects the voters' freedom of choice or freedom to vote for or
against the 1973 Constitution. Those who cringe in fear are the
criminals or the law violators. Surely, petitioners do not come under
such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of
hands violates the secrecy of the ballot as by the election laws. But the
1935 Constitution does not require secret voting. We search in vain for
such guarantee or prescription in said organic law. The Commission on
Elections under the 1940 Amendment, embodied as Article X is merely
mandated to insure "free, orderly and honest election." Congress, under
its plenary law-making authority, could have validly prescribed in the
election law open voting in the election of public officers, without
trenching upon the Constitution. Any objection to such a statute
concerns its wisdom or propriety, not its legality or constitutionality.
Secret balloting was demanded by partisan strife in elections for
elective officials. Partisanship based on party or personal loyalties does
not generally obtain in a plebiscite on proposed constitutional
amendments or on a new Constitution. We have seen even before and
during martial law that voting in meetings of government agencies or
private organizations is usually done openly. This is specially true in
sessions of Congress, provincial boards, city councils, municipal boards
and barrio councils when voting on national or local issues, not on
personalities.
Then again, open voting was not a universal phenomenon in the
Citizens' Assemblies. It might have been true in certain areas, but that
does not necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3,
1973 of the National Press Club officers who were elected by
acclamation presided over by its former president, petitioner Eduardo
Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue).
There can be no more hardboiled group of persons than

newspapermen, who cannot say that voting among them by

acclamation was characterized by fear among the members of the
National Press Club.
Moreover, petitioners would not be willing to affirm that all the
members of the citizenry of this country are against the new
Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the
Department of Education campaigned for the ratification of the new
Constitution.
Not one of the petitioners can say that the common man farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus
driver, pedestrian, salesman, or salesgirl does not want the new
Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given
to the new Constitution. This is quite inaccurate; because even before
the election in November, 1970 of delegates to the Constitutional
Convention, the proposed reforms were already discussed in various
forums and through the press as well as other media of information.
Then after the Constitutional Convention convened in June, 1971,
specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media the press, radio and
television. Printed materials on the proposed reforms were circulated by
their proponents. From June, 1971 to November 29, 1972, reforms were
openly discussed and debated except for a few days after the
proclamation of martial law on September 21, 1972. From the time the
Constitutional Convention reconvened in October, 1972 until January 7,
1973, the provisions of the new Constitution were debated and
discussed in forums sponsored by private organizations universities and
debated over the radio and on television. The Philippines is a literate
country, second only to Japan in the Far East, and more literate perhaps
than many of mid-western and southern states of the American Union
and Spain. Many residents in about 1,500 towns and 33,000 barrios of
the country have radios. Even the illiterates listened to radio broadcasts
on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro
Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto
Lang, Hollywood producer director (Tora, Tora, Tora) went around the
country doing a 30-minute documentary on the Philippines for American
television stated that what impressed him most in his travel throughout
the country was the general acceptance of the New Society by the
people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and
Daily Express, March 3, and Sunday Express, March 4), Secretary of the
United States Senate, who conducted a personal survey of the country
as delegate of Senator Mike Mansfield, Chairman, Committee on USPhilippine relations, states:
Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines. President Marcos has been prompt and
sure-footed in using the power of presidential decree under martial law
for this purpose. He has zeroed in on areas which have been widely
recognized as prime sources of the nation's difficulties land tenancy,
official corruption, tax evasion and abuse of oligarchic economic power.
Clearly, he knows the targets. What is not yet certain is how accurate
have been his shots. Nevertheless, there is marked public support for
his leadership and tangible alternatives have not been forthcoming.
That would suggest that he may not be striking too far from the mark.
The United States business community in Manila seems to have been
re-assured by recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the
country, who constitute the majority of the population, do not like the
reforms stipulated in the new Constitution, as well as the decrees,
orders and circulars issued to implement the same. It should be
recalled, as hereinbefore stated, that all these reforms were the subject
of discussion both in the committee hearings and on the floor of the
Constitutional Convention, as well as in public forums sponsored by
concerned citizens or civic organizations at which Con-Con delegates as
well as other knowledgeable personages expounded their views
thereon and in all the media of information before the proclamation of
martial law on September 21, 1972. This is the reason why the
Constitutional Convention, after spending close to P30 million during
the period from June 1, 1971 to November 29, 1972, found it expedient
to accelerate their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of the 1973
Constitution were already expressed and circulated. The 1973
Constitution may contain some unwise provisions. But this objection to
such unwise or vague provisions, as heretofore stated, refers to the
wisdom of the aforesaid provisions, which issue is not for this Court to
decide; otherwise We will be substituting Our judgment for the
judgment of the Constitutional Convention and in effect acting as a
constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al.
(83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs.
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the
surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799)
and hence no more martial law in the Philippines.

... Consequently, in the promulgation and enforcement of Executive

Order No. 68, the President of the Philippines has acted in conformity
with the generally accepted principles and policies of international law
which are part of our Constitution.
The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed forces,
as upheld by this Court in the case of Yamashita vs. Styver (L-129, 42
Off. Gaz., 664) when we said
"War is not ended simply because hostilities have ceased. After
cessation of armed hostilities, incidents of war may remain pending
which should be disposed of as in time of war. "An important incident to
a conduct of war is the adoption measures by the military command
not only to repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to thwart or
impede our military effort have violated the law of war." (Ex parte
Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a
military commission for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a writer, a military
commission "has jurisdiction so long as the technical state of war
continues. This includes the period of an armistice, or military
occupation, up to the effective date of treaty of peace, and may extend
beyond, by treaty agreement." (Cowles, Trial of War Criminals by
Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully empowered
to consummate this unfinished aspect of war, namely the trial and
punishment of war criminals, through the issuance and enforcement of
Executive Order No. 68. (83 Phil. 177-178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears
to subscribe to this view, when, in his concurring opinion in Duncan vs.
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the
exercise of the power which resides in the executive branch of the
government to preserve order and insure the public safety in times of
emergency, when other branches of the government are unable to
function, or their functioning would itself threaten the public safety."
(Emphasis supplied). There is an implied recognition in the aforesaid
definition of martial law that even in places where the courts can
function, such operation of the courts may be affected by martial
law should their "functioning ... threaten the public safety." It is possible
that the courts, in asserting their authority to pass upon questions
which may adversely affect the conduct of the punitive campaign
against rebels, secessionists, dissidents as well as subversives, martial
law may restrict such judicial function until the danger to the security of
the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become
an outright dictatorship, can have no other purposes than the
preservation of the independence of the state, the maintenance of the
existing constitutional order, and the defense of the political and social
liberties of the people. It is important to recognize the true and limited
ends of any practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in this way:
the government of a free state is proceeding on its way and meeting
the usual problems of peace and normal times within the limiting
framework of its established constitutional order. The functions of
government are parceled out among a number of mutually independent
offices and institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and constitutional
prescriptions; and the people for whom this government was instituted
are in possession of a lengthy catalogue of economic, political, and
social rights which their leaders recognize as inherent and
inalienable. A severe crisis arises the country is invaded by a hostile
power, or a dissident segment of the citizenry revolts, or the impact of
a world-wide depression threatens to bring the nation's economy in
ruins. The government meets the crisis by assuming more powers and
respecting fewer rights. The result is a regime which can act arbitrarily
and even dictatorially in the swift adaption of measures designed to
save the state and its people from the destructive effects of the
particular crisis. And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing
more: to end the crisis and restore normal times. The government
assumes no power and abridges no right unless plainly indispensable to
that end; it extends no further in time than the attainment of that end;
and it makes no alteration in the political, social and economic structure
of the nation which cannot be eradicated with the restoration of normal
times. In short, the aim of constitutional dictatorship is the complete
restoration of the status quo ante bellum. This historical fact does not
comport with philosophical theory, that there never has been a perfect
constitutional dictatorship, is an assertion that can be made without
fear of contradiction. But this is true of all institutions of government,
and the principle of constitutional dictatorship remains eternally valid
no matter how often and seriously it may have been violated in
practice. (Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p.
7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or
permanent character, thus:
The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect.
Emergency powers are strictly conditioned by their purpose and this
purpose is the restoration of normal conditions. The actions directed to

this end should therefore be provisional. For example, measures of a

legislative nature which work a lasting change in the structure of the
state or constitute permanent derogations from existing law should not
be adopted under an emergency enabling act, at least not without the
positively registered approval of the legislature. Permanent laws,
whether adopted in regular or irregular times, are for parliaments to
enact. By this same token, the decisions and sentences of extraordinary
courts should be reviewed by the regular courts after the termination of
the crisis.
But what if a radical act of permanent character, one working lasting
changes in the political and social fabric, is indispensable to the
successful prosecution of the particular constitutional dictatorship? The
only answer can be: it must be resolutely taken and openly
acknowledged. President Lincoln found it necessary to proceed to the
revolutionary step of emancipation in aid of his conservative purpose of
preserving the Union; as a constitutional dictator he had a moral right
to take this radical action. Nevertheless, it is imperative that any action
with such lasting effects should eventually receive the positive
approval of the people or of their representatives in the legislature. (P.
303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe
crisis generated by revolution, insurrection or economic depression or
dislocation, the government exercises more powers and respects fewer
rights in order "to end the crisis and restore normal times." The
government can assume additional powers indispensable to the
attainment of that end the complete restoration of peace. In our
particular case, eradication of the causes that incited rebellion and
subversion as secession, is the sine qua non to the complete restoration
of normalcy. Exercise of legislative power by the President as
Commander in Chief, upon his proclamation of martial law, is justified
because, as he professes, it is directed towards the institution of radical
reforms essential to the elimination of the causes of rebellious,
insurgent or subversive conspiracies and the consequent dismantling of
the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102 is indispensable to the effectuation of the
reforms within the shortest possible time to hasten the restoration of
normalcy.
"Must the government be too strong for the liberties of the people; or
must it be too weak to maintain its existence?" That was the dilemma
that vexed President Lincoln during the American Civil War, when
without express authority in the Constitution and the laws of the United
States, he suspended one basic human freedom the privilege of the
writ of habeas corpus in order to preserve with permanence the
American Union, the Federal Constitution of the United States and all
the civil liberties of the American people. This is the same dilemma that
presently confronts the Chief Executive of the Republic of the
Philippines, who, more than the Courts and Congress, must, by express
constitutional mandate, secure the safety of our Republic and the rights
as well as lives of the people against open rebellion, insidious
subversion secession. The Chief Executive announced repeatedly that
in choosing to proclaim martial law, the power expressly vested in him
by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to
insure our national and individual survival in peace and freedom, he is
in effect waging a peaceful, democratic revolution from the center
against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented
secessionists of the extreme left who demand swift institution of
reforms. In the exercise of his constitutional and statutory powers, to
save the state and to protect the citizenry against actual and
threatened assaults from insurgents, secessionists and subversives,
doctrinaire concepts and principles, no matter how revered they may
be by jurisprudence and time, should not be regarded as peremptory
commands; otherwise the dead hand of the past will regulate and
control the security and happiness of the living present. A contrary view
would be to deny the self-evident proposition that constitutions and
laws are mere instruments for the well-being, peace, security and
prosperity of the country and its citizenry. The law as a means of social
control is not static but dynamic. Paraphrasing Mr. Justice Frankfurter,
the Constitution is neither a printed finality nor the imprisonment of the
past, but the enfolding of the future. In the vein of Mr. Justice Holmes,
the meaning of the words of the Constitution is not to be determined by
merely opening a dictionary. Its terms must be construed in the context
of the realities in the life of a nation it is intended to serve. Because
experience may teach one generation to doubt the validity and efficacy
of the concepts embodied in the existing Constitution and persuade
another generation to abandon them entirely, heed should be paid to
the wise counsel of some learned jurists that in the resolution of
constitutional questions like those posed before Us the blending of
idealism and practical wisdom or progressive legal realism should be
applied (see Alexander M. Bickel, the Supreme Court and the Idea of
Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital
agency for human betterment" and constitutional law "is applied
politics using the word in its noble sense." (Frankfurter, Law and
Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight jacket. It
is a living organism. As such, it is capable of growth or
expansion and adaptation to new conditions. Growth implies changes,
political, economic and social." (Brandeis Papers, Harvard Law School;

emphasis supplied). Harvard Professor Thomas Reed Powell emphasizes

"practical wisdom," for "the logic of constitutional law is the common
sense of the Supreme Court." (Powell, the Validity of State Legislation,
under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as manmade institutions are not immutable. Civilized men organize
themselves into a State only for the purpose of serving their supreme
interest their welfare. To achieve such end, they created an agency
known as the government. From the savage era thru ancient times, the
Middle Ages, the Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states and
governments have mutated in their search for the magic instrument for
their well-being. It was trial and error then as it is still now. Political
philosophies and constitutional concepts, forms and kinds of
government, had been adopted, overturned, discarded, re-adopted or
modified to suit the needs of a given society at a particular given
epoch. This is true of constitutions and laws because they are not "the
infallible instruments of a manifest destiny." No matter how we want
the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly
observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the
law is not logic, but experience." In the pontifical tones of Mr. Justice
Benjamin Nathan Cardozo, "so long as society is inconstant, there can
be no constancy in law," and "there will be change whether we will it or
not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like,
command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a
"government that governs least." Adherents there are to the poetic
dictum of Alexander Pope: "For forms of government let fools contest;
whatever is best administered is best." (Poems of Pope, 1931
Cambridge ed., p. 750). In between, the shades vary from direct
democracy, representative democracy, welfare states, socialist
democracy, mitigated socialism, to outright communism which
degenerated in some countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to
factual situations in the seclusion of his ivory tower, must perforce
submit to the inexorable law of change in his views, concepts, methods
and techniques when brought into the actual arena of conflict as a
public functionary face to face with the practical problems of state,
government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect
the lives, liberties and fortunes of the citizens and the nation,
recommend the blending of idealism with practical wisdom which legal
thinkers prefer to identify as progressive legal realism. The national
leader, who wields the powers of government, must and has to
innovate if he must govern effectively to serve the supreme interests of
the people. This is especially true in times of great crises where the
need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of people, to
promote their well-being, and to insure the safety and stability of the
Republic. When the methods of rebellion and subversion have become
covert, subtle and insidious, there should be a recognition of the
corresponding authority on the part of the Commander-in-Chief of the
Armed Forces to utilize all the available techniques to suppress the peril
to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when he
said that some men "ascribe men of the preceding age a wisdom more
than human, and suppose what they did to be beyond amendment. ...
But I know also, that laws and institutions must go hand in hand with
the progress of the human mind. As that becomes more developed,
more enlightened, as new discoveries are made, new truths disclosed
and manners and opinions change, with the change of circumstances,
institutions must also advance, and keep pace with the times." (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in
the perspective of history. It cannot be adequately and fairly appraised
within the present ambience, charged as it is with so much tension and
emotion, if not partisan passion. The analytical, objective historians will
write the final verdict in the same way that they pronounced judgment
on President Abraham Lincoln who suspended the privilege of the writ
of habeas corpuswithout any constitutional or statutory authority
therefor and of President Franklin Delano Roosevelt who approved the
proclamation of martial law in 1941 by the governor of Hawaii
throughout the Hawaiian territory. President Lincoln not only
emancipated the Negro slaves in America, but also saved the Federal
Republic of the United States from disintegration by his suspension of
the privilege of the writ of habeas corpus, which power the American
Constitution and Congress did not then expressly vest in him. No one
can deny that the successful defense and preservation of the territorial
integrity of the United States was due in part, if not to a great extent, to
the proclamation of martial law over the territory of Hawaii main
bastion of the outer periphery or the outpost of the American defense
perimeter in the Pacific which protected the United States mainland
not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer
cannot accurately conclude that the American Supreme Court acted

with courage in its decision in the cases of Ex parte Milligan and

Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to
13, 1866, decided on April 3, 1866, and opinion delivered on December
17, 1866) after the lifting of the proclamation suspending the privilege
of the writ of habeas corpus, long after the Civil War and the Second
World ended respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia
Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23,
Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part of
the American Supreme Court in deciding these cases against the
position of the United States President in suspending the privilege of
the writ of habeas corpus in one case and approving the proclamation
of martial law in the other deliberate as an act of judicial
statesmanship and recognition on their part that an adverse court
ruling during the period of such a grave crisis might jeopardize the
survival of the Federal Republic of the United States in its life-and-death
struggle against an organized and well armed rebellion within its own
borders and against a formidable enemy from without its territorial
confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil
Puyat and Jose Roy to convene the Senate of the Philippines even on
the assumption that the 1935 Constitution still subsists; because
pursuant to the doctrine of separation of powers under the 1935
Constitution, the processes of this Court cannot legally reach a
coordinate branch of the government or its head. This is a problem that
is addressed to the Senate itself for resolution; for it is purely an
internal problem of the Senate. If a majority of the senators can
convene, they can elect a new Senate President and a new Senate
President Pro Tempore. But if they have no quorum, those present can
order the arrest of the absent members (Sec. 10[2], Art. VI, 1935
Constitution). If this fails, then there is no remedy except an appeal to
the people. The dictum ubi jus, ubi remedium, is not absolute and
certainly does not justify the invocation of the power of this Court to
compel action on the part of a co-equal body or its leadership. This was
emphasized with sufficient clarity by this Court in the 1949 case of
Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished
counsels for the petitioners in L-36164 and L-36165 are familiar. We
stress that the doctrine of separation of powers and the political nature
of the controversy such as this, preclude the interposition of the
Judiciary to nullify an act of a coordinate body or to command
performance by the head of such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to
the political question doctrine almost in mockery as a magic
formula which should be disregarded by this Court, forgetting that this
magic formula constitutes an essential skein in the constitutional fabric
of our government, which, together with other basic constitutional
precepts, conserves the unity of our people, strengthens the structure
of the government and assures the continued stability of the country
against the forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere.
Validity of the acts of the Senate does not depend on the place of
session; for the Constitution does not designate the place of such a
meeting. Section 9 of Article VI imposes upon Congress to convene in
regular session every year on the 4th Monday of January, unless a
different date is fixed by law, or on special session called by the
President. As former Senator Arturo Tolentino, counsel for respondents
Puyat and Roy in L-36165, stated, the duty to convene is addressed to
all members of Congress, not merely to its presiding officers. The fact
that the doors of Congress are padlocked, will not prevent the senators
especially the petitioners in L-36165 if they are minded to do so,
from meeting elsewhere at the Sunken Gardens, at the Luneta
Independence Grandstand, in any of the big hotels or theaters, in their
own houses, or at the Araneta Coliseum, which is owned by the fatherin-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in
futility, for it cannot validly meet without the lower House (Sec. 10[5],
Art. VI, 1935 Constitution). Hence, this petition by five former senators
for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law
imposing on the respondents the duty to convene the body. The rule
imposing such a duty invoked by petitioners in L-36165 is purely an
internal rule of the Senate; it is not a law because it is not enacted by
both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is addressed
to the individual members of the legislative body (Sec. 9, Art. VI of 1935
Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a
declaration that the alleged ratification of the 1973 Constitution is null
and void and that the said 1973 Constitution be declared unenforceable
and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly

delegated to him by Section 10(2) of Article VII of the 1935

Constitution.
A declaration that the 1973 Constitution is unenforceable and
inoperative is practically deciding that the same is unconstitutional. The
proposed Constitution is an act of the Constitutional Convention, which
is co-equal and coordinate with as well as independent of either
Congress or the Chief Executive. Hence, its final act, the 1973
Constitution, must have the same category at the very least as the act
of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and
the 1973 Constitution should be eight (8) under Section 10 of Article VIII
of the 1935 Constitution in relation to Section 9 of the Judiciary Act or
Republic Act No. 296, as amended, or should be ten (10) under Section
2(2) of Article X of the 1973 Constitution. Should the required vote of
eight (8) or ten (10), as the case may be, for the declaration of
invalidity or unconstitutionality be not achieved, the 1973 Constitution
must be deemed to be valid, in force and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of
tyranny over the mind of man" as well as towards bigotry and
intolerance, which are anathema to a free spirit. But human rights and
civil liberties under a democratic or republican state are never absolute
and never immune to restrictions essential to the common weal. A
civilized society cannot long endure without peace and order, the
maintenance of which is the primary function of the government.
Neither can civilized society survive without the natural right to defend
itself against all dangers that may destroy its life, whether in the form
of invasion from without or rebellion and subversion from within. This is
the first law of nature and ranks second to none in the hierarchy of all
values, whether human or governmental. Every citizen, who prides
himself in being a member or a civilized society under an established
government, impliedly submits to certain constraints on his freedom for
the general welfare and the preservation of the State itself, even as he
reserves to himself certain rights which constitute limitations on the
powers of government. But when there is an inevitable clash between
an exertion of governmental authority and the assertion of individual
freedom, the exercise of which freedom imperils the State and the
civilized society to which the individual belongs, there can be no
alternative but to submit to the superior right of the government to
defend and preserve the State. In the language of Mr. Justice Holmes
often invoked by herein petitioners "when it comes to a decision
involving its (state life, the ordinary rights of individuals must yield to
what he (the President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for judicial
process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328).
This was admitted with regard to killing men in the actual clash of arms.
And we think it is obvious, although it was disputed, that the same is
true of temporary detention to prevent apprehended harm." (Moyer vs.
Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of
freedom with order and security for all, that should be the shibboleth;
for freedom cannot be enjoyed in an environment of disorder and
anarchy.
The incumbent Chief Executive who was trying to gain the support for
his reform program long before September 21, 1972, realized almost
too late that he was being deceived by his partymates as well as by the
opposition, who promised him cooperation, which promises were either
offered as a bargaining leverage to secure concessions from him or to
delay the institution of the needed reforms. The people have been
victimized by such bargaining and dilly-dallying. To vert a terrifying
blood bath and the breakdown of the Republic, the incumbent President
proclaimed martial law to save the Republic from being overrun by
communists, secessionists and rebels by effecting the desired reforms
in order to eradicate the evils that plague our society, which evils have
been employed by the communists, the rebels and secessionists to
exhort the citizenry to rise against the government. By eliminating the
evils, the enemies of the Republic will be decimated. How many of the
petitioners and their counsels have been utilizing the rebels,
secessionists and communists for their own personal or political
purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the
greater mass of the populace, more than for their own selves, they
should be willing to give the incumbent Chief Executive a chance to
implement the desired reforms. The incumbent President assured the
nation that he will govern within the framework of the Constitution and
if at any time, before normalcy is restored, the people thru their
Citizens' Assemblies, cease to believe in his leadership, he will step
down voluntarily from the Presidency. But if, as apprehended by the
petitioners, he abuses and brutalizes the people, then to the
battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides
the tiger will eventually end inside the tiger's stomach. He who toys
with revolution will be swallowed by that same revolution. History is
replete with examples of libertarians who turned tyrants and were
burned at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The most
bloody of such mass executions by the wrath of a wronged people, was

the decapitation by guillotine of about 15,000 Frenchmen including the

leaders of the French revolution, like Robespierre, Danton, Desmoulins
and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive
Officers from implementing the Constitution signed on November 30,
1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy,
President and President Pro-Tempore, respectively, of the Senate under
the 1935 Constitution, to convene the Senate in regular session which
should have started on January 22, 1973; to nullify Proclamation No.
1102 of the President, issued on January 17, 1973, which declared the
ratification of the Constitution on November 30, 1972, by the Filipino
people, through the barangays or Citizens Assemblies established
under Presidential Decree No. 86 issued on December 31, 1972, which
were empowered under Presidential Decree No. 86-A, issued on January
5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the
making of a Constitution after the declaration of Martial Law on
September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions
in the 1972 Constitution because they are highly unwise and
objectionable and the people were not sufficiently informed about
them.
3. The President had no authority to create and empower the Citizens'
Assemblies to ratify the new Constitution at the referendum conducted
in connection therewith, as said assemblies were merely for
consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the
manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred
to the Solicitor General as counsel for the respondents for comment,
with three members of the Court, including the undersigned, voting to
dismiss them outright. The comments were considered motions to
dismiss which were set for hearing and extensively argued. Thereafter
both parties submitted their notes and memoranda on their oral
arguments.
I.
The issues raised for determination, on which the resolution of the
Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the
competence of this Court to decide, or is it justiciable and fit for judicial
determination?
2. Was the new Constitution of November 30, 1972, ratified in
accordance with the amending process prescribed by Article XV of the
1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the
Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are
petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should
abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not
the question presented is political, joint discussion of issues Nos. 1, 3
and 4 is necessary so as to arrive at a logical conclusion. For after the
acceptance of a new Constitution and acquiescence therein by the
people by putting it into practical operation, any question regarding its
validity should be foreclosed and all debates on whether it was duly or
lawfully ushered into existence as the organic law of the state become
political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102
and Presidential Decrees Nos. 86 and 86-A are fully set forth in the
majority and dissenting opinions in the Plebiscite cases decided on
January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of
the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens
Assemblies composed of all citizens at least fifteen years of age, and
through these assemblies the proposed 1972 Constitution was
submitted to the people for ratification. Proclamation No. 1102 of the
President announced or declared the result of the referendum or
plebiscite conducted through the Citizens Assemblies, and that
14,976,561 members thereof voted for the ratification of the new
Constitution and 743,869 voted against it. Petitioners assail these two
acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated
is the new Constitution itself the very framework of the present
Government since January 17, 1973. The reason is obvious. The
Presidential decrees set up the means for the ratification and
acceptance of the new Constitution and Proclamation No. 1102 simply
announced the result of the referendum or plebiscite by the people
through the Citizens Assemblies. The Government under the new
Constitution has been running on its tracks normally and apparently
without obstruction in the form of organized resistance capable of

jeopardizing its existence and disrupting its operation. Ultimately the

issue is whether the new Constitution may be set aside by this Court.
But has it the power and authority to assume such a stupendous task
when the result of such invalidation would be to subject this nation to
divisive controversies that may totally destroy the social order which
the Government under the new Constitution has been admirably
protecting and promoting under Martial Law? That the new Constitution
has taken deep root and the people are happy and contended with it is
a living reality which the most articulate critics of the new order cannot
deny. 95 out of 108 members of the House of Representatives have
opted to serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise. The
members of the Congress did not meet anymore last January 22, 1973,
not because they were really prevented from so doing but because of
no serious effort on their parts to assert their offices under the 1935
Constitution. In brief, the Legislative Department under the 1935
Constitution is a thing of the past. The Executive Department has been
fully reorganized; the appointments of key executive officers including
those of the Armed Forces were extended and they took an oath to
support and defend the new Constitution. The courts, except the
Supreme Court by reason of these cases, have administered justice
under the new constitution. All government offices have dealt with the
public and performed their functions according to the new Constitution
and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution,
how can this Court justify its assumption of jurisdiction when no power
has ... conferred upon it the jurisdiction to declare the Constitution or
any part thereof null and void? It is the height of absurdity and
impudence for a court to wage open war against the organic act to
which it owes its existence. The situation in which this Court finds itself
does not permit it to pass upon the question whether or not the new
Constitution has entered into force and has superseded the 1935
Constitution. If it declares that the present Constitution has not been
validly ratified, it has to uphold the 1935 Constitution as still the
prevailing organic law. The result would be too anomalous to describe,
for then this Court would have to declare that it is governed by one
Constitution or the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it
exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In
the circumstances it would be bereft of judicial attributes as the matter
would then be not meet for judicial determination, but one addressed to
the sovereign power of the people who have already spoken and
delivered their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that the new
Constitution has been accepted and actually is in operation would be
flying in the face of reason and pounding one's bare head against a
veritable stone wall or a heavily reinforced concrete, or simply "kicking
the deadly pricks" with one's bare foot in an effort to eliminate the
lethal points.
When a Constitution has been in operation for sometime, even without
popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of
approval. Courts should be slow in nullifying a Constitution claimed to
have been adopted not in accordance with constitutional or statutory
directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204,
207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and
promulgated according to the forms of law. Great interests have already
arisen under it; important rights exist by virtue of it; persons have been
convicted of the highest crimes known to the law, according to its
provisions; the political power of the government has in many ways
recognized it; and, under such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the organic law of our state.
We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its
power, yet as the entire instrument has been recognized as valid in the
manner suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, who can and
properly should remedy the matter, if not to their liking, if it were to
declare the instrument or a portion invalid, and bring confusion and
anarchy upon the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an
inquiry when applied to a new constitution, and not an amendment,
because the judicial power presupposes an established government,
and if the authority of that government is annulled and overthrown, the
power of its courts is annulled with it; therefore, if a state court should
enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it
decides at all, it must necessarily affirm the existence of the
government under which it exercises its judicial powers. (Emphasis
supplied)

These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L.
Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established government capable of
enacting laws and enforcing their execution, and appointing judges to
expound and administer them. The acceptance of the judicial office is a
recognition of the authority of government from which it is derived. And
if the authority of the government is annulled and overthrown, the
power of its courts and other officers is annulled with it. And if a State
court should enter upon the inquiry proposed in this case, and should
come to conclusion that the government under which it acted had been
put aside and displaced by an opposing government it would cease to
be a court, and be incapable of pronouncing a judicial decision upon the
question it undertook to try. If it decides at all as a court, it necessarily
affirms the existence and authority of the government under which it is
exercising judicial power.
The foreign relations of the Republic of the Philippines have been
normally conducted on the basis of the new Constitution and no state
with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts
done under the new Constitution, see pages 22-25 of the Comments of
the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At
this juncture it would be the part of wisdom for this Court to adopt the
proper attitude towards political upheavals and realize that the question
before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign
capacity (Taada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100 Phil.
1101), or to a co-equal and coordinate branch of the Government (Vera
vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1;
Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638,
May 8, 1931). A case involves a political question when there would be
"the impossibility of undertaking independent resolutions without
expressing a lack of respect due to coordinate branches of
government", or when there is "the potentiality of embarrassment from
multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed
as the "ultimate organ of the "Supreme Law of the Land" in that vast
range of legal problems often strongly entangled in popular feeling on
which this Court must pronounce", let us harken to the following
admonition of Justice Frankfurter in his dissent in Baker vs. Carr, 369
U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority possessed neither of the purse nor the sword
ultimately rests on sustained public confidence in its moral sanction.
Such feeling must be nourished by the Court's complete detachment, in
fact and appearance, from political entanglements and abstention from
injecting itself into the clash of political forces in political settlement. ..."
(Emphasis supplied)
The people have accepted and submitted to a Constitution to replace
the 1935 Constitution. The new organic law is now in the plenitude of
its efficacy and vigor. We are now living under its aegis and protection
and only the cynics will deny this. This Court should not in the least
attempt to act as a super-legislature or a super-board of canvassers and
sow confusion and discord among our people by pontificating there was
no valid ratification of the new Constitution. The sober realization of its
proper role and delicate function and its consciousness of the
limitations on its competence, especially situations like this, are more in
keeping with the preservation of our democratic tradition than the
blatant declamations of those who wish the Court to engage in their
brand of activism and would not mind plunging it into the whirlpool of
passion and emotion in an effort to capture the intoxicating applause of
the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or
not the Constitution proposed by the Constitutional Convention of 1971
had been ratified in accordance with the provisions of Article XV of the
1935 Constitution. In the plebiscite cases, which were decided by this
Court on January 22, 1973 1, I held the view that this issue could be
properly resolved by this Court, and that it was in the public interest
that this Court should declare then whether or not the proposed
Constitution had been validly ratified. The majority of this Court,
however, was of the view that the issue was not squarely raised in
those cases, and so the Court, as a body, did make any categorical
pronouncement on the question of whether or not the Constitution
proposed by the 1971 Convention was validly ratified. I was the only
one who expressed the opinion that the proposed Constitution was not
validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of
this country, whether or not that proposed Constitution had been validly
ratified and had come into effect.
The Solicitor General, however, contends that this Court has no
jurisdiction to resolve the issue that we have mentioned because that
issue is a political question that cannot be decided by this Court. This
contention by the Solicitor General is untenable. A political question
relates to "those questions which under the Constitution are to be
decided by the people in their sovereign capacity or in regard to which
full discretionary authority has been delegated to the legislative, or to

the executive, branch of the government. 2 The courts have the power
to determine whether the acts of the executive are authorized by the
Constitution and the laws whenever they are brought before the court
in a judicial proceeding. The judicial department of the government
exercises a sort of controlling, or rather restraining, power over the two
other departments of the government. Each of the three departments,
within its proper constitutional sphere, acts independently of the other,
and restraint is only placed on one department when that sphere is
actually transcended. While a court may not restrain the executive from
committing an unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void, the
same as it may declare a law enacted by the legislature to be
unconstitutional. 3 It is a settled doctrine that every officer under a
constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people,
acting through the agency of the judiciary. It must be remembered that
the people act through the courts, as well as through the executive or
the legislature. One department is just as representative as the other,
and judiciary is the department which is charged with the special duty
of determining the limitations which the law places upon all official
actions 4. In the case of Gonzales v. Commission on Elections 5, this
Court ruled that the issue as to whether or not a resolution of Congress
acting as a constituent assembly violates the Constitution is not a
political question and is therefore subject to judicial review. In the case
of Avelino v. Cuenco 6, this Court held that the exception to the rule that
courts will not interfere with a political question affecting another
department is when such political question involves an issue as to the
construction and interpretation of the provision of the constitution. And
so, it has been held that the question of whether a constitution shall be
amended or not is a political question which is not in the power of the
court to decide, but whether or not the constitution has been legally
amended is a justiciable question. 7
My study on the subject of whether a question before the court is
political or judicial, based on decisions of the courts in the United States
where, after all, our constitutional system has been patterned to a
large extent made me arrive at the considered view that it is in the
power of this Court, as the ultimate interpreter of the Constitution, to
determine the validity of the proposal, the submission, and the
ratification of any change in the Constitution. Ratification or nonratification of a constitutional amendment is a vital element in the
procedure to amend the constitution, and I believe that the Court can
inquire into, and decide on, the question of whether or not an
amendment to the constitution, as in the present cases, has been
ratified in accordance with the requirements prescribed in the
Constitution that was amended. And so, in the cases now before Us, I
believe that the question of whether or not the Constitution proposed
by the 1971 Constitutional Convention had been validly ratified or not is
a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial,
question. I fully concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the Constitution proposed by the
1971 Constitutional Convention has been validly ratified, I am
reproducing herein pertinent portions of my dissenting opinion in the
plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section
1, Article XV of the 1935 Constitution of the Philippines, which reads:
"Section 1. The Congress in joint session assembled by a vote of three
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as
follows:
"Section 7. The amendments proposed by the Convention shall be valid
and considered part of the Constitution when approved by a majority of
the votes cast in an election at which they are submitted to the people
for their ratification pursuant to Article XV of the Constitution.
It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention, there
was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the Constitution,
must be approved by majority of the votes cast in an election at which
they are submitted to the people for the ratification as provided in the
Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-35140,
October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo,
said:
"The Constitutional Convention of 1971, as any other convention of the
same nature,owes its existence and all its authority and power from the
existing Constitution of the Philippines. This Convention has not been
called by the people directly as in the case of a revolutionary

convention which drafts the first Constitution of an entirely new

government born of either a war of liberation from a mother country or
of revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely
true that the convention is completely without restraint and omnipotent
all wise, and it as to such conventions that the remarks of Delegate
Manuel Roxas of the Constitutional Convention of 1934 quoted by
Senator Pelaez refer. No amount of rationalization can belie the fact
that the current convention came into being only because it was called
by a resolution of a joint session of Congress acting as a constituent
assembly by authority of Section 1, Article XV of the present
Constitution ... ."
xxx xxx xxx
"As to matters not related to its internal operation and the performance
of its assigned mission to propose amendments to the Constitution, the
Convention and its officers and members are all subject to all the
provisions of the existing Constitution. Now we hold that even as to its
latter task of proposing amendments to the Constitution, it is subject to
the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President of
the Philippines certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561 members of the barangays
voted for the adoption of the proposed Constitution, as against 743,869
who voted for its rejection, and on the basis of the overwhelming
majority of the votes cast by the members of all the barangays
throughout the Philippines, the President proclaimed that the
Constitution proposed by the 1971 Convention has been ratified and
has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that
the provisions of Section 1 of Article XV of the Constitution of 1935 were
not complied with. It is not necessary that evidence be produced before
this Court to show that no elections were held in accordance with the
provisions of the Election Code. Proclamation No. 1102 unequivocally
states that the proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section
1, Article XV, of the 1935 Constitution. The election contemplated in
said constitutional provision is an election held in accordance with the
provisions of the election law, where only the qualified and registered
voters of the country would cast their votes, where official ballots
prepared for the purpose are used, where the voters would prepare
their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country,
where the election is conducted by election inspectors duly appointed
in accordance with the election law, where the votes are canvassed and
reported in a manner provided for in the election law. It was this kind of
election that was held on May 14, 1935, when the Constitution of 1935
was ratified; on April 30, 1937, when the amendment to the
Constitution providing for Women's Suffrage was ratified; on June 18,
1940, when the 1940 Amendments to the Constitution were ratified; on
March 11, 1947 when the Parity Amendment to the Constitution was
ratified; and on November 14, 1967 when the amendments to the
Constitution to increase the number of Members of the House of
Representatives and to allow the Members of Congress to run in the
elections for Delegates to the Constitutional Convention of 1971 were
rejected.
I cannot see any valid reason why the practice or procedure in the past,
in implementing the constitutional provision requiring the holding, of an
election to ratify or reject an amendment to the Constitution, has not
been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree
order the ratification of the proposed 1972 Constitution thru a voting in
the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete disregard or in violation,
of the provisions of Section 1 of Article X of the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as
to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of
the barangays should be considered a vote in a plebiscite. It would thus
appear that the barangays assumed the power to determine whether a
plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely
disregarded.
The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution. The
votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
"An election is the embodiment of the popular will, the expression of
the sovereign power of the people. In common parlance, an election is
the act of casting and receiving the ballots, counting them, and making
the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leffel v. Brown, Com. P1., 159
N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on
various public matters submitted to them the election of officers,

national, state, county, township the passing on various other

questions submitted for their determination." (29 C.J.S. 13, citing IowaIllinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa
358).
"Election" is expression of choice by voters of body politic. (Ginsburg v.
Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent
Edition, p. 234).
"The right to vote may be exercised only on compliance with such
statutory requirements as have been set by the legislature." (People ex
rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis
supplied).
In this connection I herein quote the pertinent provisions of the Election
Code of 1971:
"Sec. 2. Applicability of this Act. All elections of public officers except
barrio officials and plebiscites shall be conducted in the manner
provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. In order that
a qualified voter may vote in any regular or special election or in any
plebiscite, he must be registered in the permanent list of voters for the
city, municipality or municipal district in which he resides: Provided,
that no person shall register more than once without first applying for
cancellation of his previous registration." (Emphasis supplied). (Please
see also Sections 100-102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the
members of citizens assemblies who are 15 years of age or over. Under
the provision of Section I of Article V of the 1935 Constitution, the age
requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising of
hands by the persons indiscriminately gathered to participate in the
voting, where even children below 15 years of age were included. This
is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or rejected is to resort to
a voting by demonstrations, which is would mean the rule of the crowd,
which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be decided
by simply gathering people and asking them to raise their hands in
answer to the question of whether the vote for or against a proposed
Constitution. The election as provided by law should be strictly
observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed
through the ballot in a manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law.
Indeed, the people are sovereign, but the will of the people must be
expressed in a manner as the law and the demands a well-ordered
society require. The rule of law must prevail even over the apparent will
of the majority of the people, if that will had not been expressed, or
obtained, in accordance with the law. Under the rule of law, public
questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of adoption of a constitution or in
the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to
determine whether the proposed Constitution of 1972 had been validly
ratified, or not:
"When it is said that "the people" have the right to alter or amend the
constitution, it must not be understood that term necessarily includes
all the inhabitants of the state. Since the question of the adoption or
rejection of a proposed new constitution or constitutional amendment
must be answered a vote, the determination of it rests with those who,
by existing constitution, are accorded the right of suffrage. But the
qualified electors must be understood in this, as in many other cases,
as representing those who have not the right to participate in the ballot.
If a constitution should be abrogated and a new one adopted, by the
whole mass of people in a state acting through representatives not
chosen by the "people" in political sense of the term, but by the general
body of the populace, the movement would be extra-legal." (BIack's
Constitutional Law, Second Edition, pp. 47-48).
"The theory of our political system is that the ultimate sovereignty is in
the people, from whom springs all legitimate authority. The people of
the Union created a national constitution, and conferred upon it powers
of sovereignty on certain subjects, and the people of each State created
a State government, to exercise the remaining powers of sovereignty so
far as they were disposed to allow them to be exercised at all. By the
constitution which they establish, they not only tie up the hands of their
official agencies, but their own hands as well; and neither the officers of
the State, nor the whole people as an aggregate body, are at liberty to
take action in opposition to this fundamental law." (Cooley's
Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v.
Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure, render
innocuous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed
amendments thereto, does not prevail in Alabama, where the doctrine
of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional

principles in Collier v. Frierson, supra, as quoted in the original opinion,

ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or thwart
its mandates, except through the peaceful means of a constitutional
convention, or of an amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution.
"The Constitution may be set aside by revolution, but it can only be
amended in the way it provides," said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al., 87
So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote was
taken as provided by the Constitution, is not sufficient to make a
change in that instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way which
it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A.
560;McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16
Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not
merely directory, but are mandatory; and a strict observance of every
substantial mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment.
These provisions are as binding on the people as on the legislature, and
the former are powerless by vote of acceptance to give legal sanction
to an amendment the submission of which was made in disregard of the
limitations contained in the constitution." (16 C.J.S. 35-36. cited in
Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the
State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not
be due to the action of the Court but will be the result of the failure of
the drafters joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that, the
Court disregards its sworn duty to enforce the Constitution, chaos and
confusion will result, is an inherently weak argument in favor of the
alleged constitutionality of the proposed amendment. It is obvious that,
if the Court were to countenance the violations of the sacramental
provisions Constitution, those who would thereafter desire to violate it
disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs of the State then simply tell the
Court that it was powerless to exercise one of its primary functions by
rendering the proper decree to make the Constitution effective."
(Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow the
will of the majority to prevail, because the requirements of the law were
not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale
and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly
filed his certificate of candidacy before the expiration of the period for
the filing of the same. However, on October 10, 1947, after the period
for the filing of the certificate of candidacy, Monsale withdrew his
certificate of candidacy. But on November 7, 1947 Monsale attempted
to revive his certificate of candidacy by withdrawing the withdrawal of
certificate of candidacy. The Commission on Elections, November 8,
1947, ruled that Monsale could no longer be a candidate. Monsale
nevertheless proceeded with his candidacy. The boards of inspectors in
Miagao, however, did not count the votes cast for Monsale upon the
ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the
boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale filed a protest against the election of Nico
in the Court of First Instance of Iloilo. In the count of the ballots during
the proceedings in the trial court, it appeared that Monsale had
obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of
601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico,
this Court reversed the decision of the lower court. This Court declared
that because Monsale withdrew his certificate of candidacy, his attempt
to revive it by withdrawing his withdrawal of his certificate of candidacy
did not restore the effectiveness of his certificate of candidacy, and this
Court declared Nico the winner in spite of the fact that Monsale had
obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of
the voters would not be given effect, as declared by this Court, if
certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in
the citizens assemblies (barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of the amendment to the
Constitution, the affirmative votes cast in those assemblies can not be
made the basis for declaring the ratification of the proposed 1972
Constitution, in spite of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be upheld.

My last observation: One of the valid grounds against the holding of the
plebiscite on January 15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the people to exercise
their right of choice because of the existence of martial law in our
country. The same ground holds true as regards to the voting of the
barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 73
in so far as they allow free public discussion of the proposed
constitution, as well as my order of December 17, 1972 temporarily
suspending the effects of Proclamation No. 1081 for the purpose of free
and open debate on the proposed constitution, be suspended in the
meantime." It is, therefore, my view that voting in the barangays on
January 10, 1973 was not free, and so this is one added reason why the
results of the voting in the barangays should not be made the basis for
proclamation of the ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the
1935 Constitution, and so it is invalid, and should not be given effect.
The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of
this Republic, and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the
citizens assemblies was a substantial compliance with the provisions of
Article XV of the 1935 Constitution. The Solicitor General maintains that
the primary thrust of the provision of Article XV of the 1935 Constitution
is that "to be valid, amendments must gain the approval of the majority
recognition of the democratic postulate that sovereign resides in the
people." It is not disputed that in a democratic sovereignty resides in
the people. But the term "people" must be understood in its
constitutional meaning, and they are "those persons who are permitted
by the Constitution to exercise the elective franchise." 8 Thus, in Section
2 of Article VII of the 1935 Constitution, it is provided that "the
President shall hold his office during a term of four years and, together
with the Vice-President chosen for the same term, shall be elected by
direct vote of the people..." Certainly under that constitutional
provision, the "people" who elect directly the President and the VicePresident are no other than the persons who, under the provisions of
the same Constitution, are granted the right to vote. In like manner the
provision in Section 1 of Article II of the 1935 Constitution which says
"Sovereignty resides in the people and all government authority
emanates from them", the "people" who exercise the sovereign power
are no other than the persons who have the right to vote under the
Constitution. In the case of Garchitorena vs. Crescini 9, this Court,
speaking through Mr. Justice Johnson, said, "In democracies, the people,
combined, represent the sovereign power of the State. Their sovereign
authority is expressed through the ballot, of the qualified voters, in duly
appointed elections held from time to time, by means of which they
choose their officials for definite fixed periods, and to whom they
entrust, for the time being, as their representatives, the exercise of the
powers of government." In the case of Moya v. Del Fierro, 10 this Court,
speaking through Mr. Justice Laurel, said, "As long as popular
government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to be
the means by which the great reservoir of power must be emptied into
the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a representative
type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the
established authority." And in the case of Abanil v. Justice of the Peace
of Bacolod, 11 this Court said: "In the scheme of our present republican
government, the people are allowed to have a voice therein through
the instrumentality of suffrage to be availed of by those possessing
certain prescribed qualifications. The people, in clothing a citizen with
the elective franchise for the purpose of securing a consistent and
perpetual administration of the government they ordain, charge him
with the performance of a duty in the nature of a public trust, and in
that respect constitute him a representative of the whole people. This
duty requires that the privilege thus bestowed exclusively for the
benefit of the citizen or class of citizens professing it, but in good faith
and with an intelligent zeal for the general benefit and welfare of the
state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question,
therefore, that when we talk of sovereign people, what is meant are the
people who act through the duly qualified and registered voters who
vote during an election that is held as provided in the Constitution or in
the law.
The term "election" as used in Section 1 of Article XV of the 1935
Constitution should be construed along with the term "election" as used
in the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-McDuffie
Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law
provides as follows:
Section 4. After the President of the United States certified that the
constitution conforms with the provisions of this act, it shall be
submitted to the people of the Philippine Islands for their ratification or
rejection at an election to he held within months after the date of such
certification, on a date to be fixed by the Philippine Legislature at which
election, the qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed constitution and
ordinances append thereto. Such election shall be held in such manner

as may prescribed by the Philippine Legislature to which the return of

the election shall be made. The Philippine Legislature shall certify the
result to the Governor-General of the Philippine Islands, together with a
statement of the votes cast, and a copy of said constitution ordinances.
If a majority of the votes cast shall be for the constitution, such vote
shall be deemed an expression of the will of the people of the Philippine
Independence, and the Governor-General shall, within thirty days after
receipt of the certification from the Philippine Legislature, issue a
proclamation for the election of officers of the government of the
Commonwealth of the Philippine Islands provided for in the
Constitution...
It can safely be said, therefore, that when the framers of the 1935
Constitution used, the word "election" in Section I Article XV of the 1935
Constitution they had no other idea in mind except the elections that
were periodically held in the Philippines for the choice of public officials
prior to the drafting of the 1935 Constitution, and also the "election"
mentioned in the Independence Act at which "the qualified voters of the
Philippine Islands shall have an opportunity to vote directly for or
against the proposed constitution..." It is but logical to expect that the
framers of the 1935 Constitution would provide a mode of ratifying an
amendment to that Constitution similar to the mode of ratifying the
original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935
Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution
as drafted. The alleged referendum in the citizens assemblies
participated in by persons aged 15 years or more, regardless of
whether they were qualified voters or not, voting by raising their hands,
and the results of the voting reported by the barrio or ward captain, to
the municipal mayor, who in turn submitted the report to the provincial
Governor, and the latter forwarding the reports to the Department of
Local Governments, all without the intervention of the Commission on
Elections which is the constitutional body which has exclusive charge of
the enforcement and administration of all laws, relative to the conduct
of elections was not only a non-substantial compliance with the
provisions of Section 1 of Article XV of the 1935 Constitution but a
downright violation of said constitutional provision. It would be
indulging in sophistry to maintain that the voting in the citizens
assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935
Constitution.
It is further contended by the Solicitor General, that even if the
Constitution proposed by the 1971 Constitutional Convention was not
ratified in accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution, the fact is that after the President of the
Philippines had issued Proclamation No. 1102 declaring that the said
proposed Constitution "has been ratified by overwhelming majority of
all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into
effect" the people have accepted the new Constitution. What appears
to me, however, is that practically it is only the officials and employees
under the executive department of the Government who have been
performing their duties apparently in observance of the provisions of
the new Constitution. It could not be otherwise, because the President
of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into effect, and his
office had taken the steps to implement the provisions of the new
Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of the
Philippines had expressed their option to serve in the interim National
Assembly that is provided for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15 senators who
expressed their option to serve in the interim National Assembly only
one them took his oath of office; and of the 92 members of the House
of Representatives who opted to serve in the interim National
Assembly, only 22 took their oath of office. The fact that only one
Senator out of 24, and only 22 Representative out of 110, took their
oath of office, is an indication that only a small portion of the members
of Congress had manifested the acceptance of the new Constitution. It
is in the taking of the oath of office where the affiant says that he
swears to "support and defend the Constitution" that the acceptance of
the Constitution is made manifest. I agree with counsel petitioners in L36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.) when he said
that the members of Congress who opted to serve in the interim
National Assembly did only ex abundante cautela, or by way of a
precaution, making sure, that in the event the new Constitution
becomes definitely effective and the interim National Assembly
convened, they can participate in legislative work in the capacity as
duly elected representatives of the people, which otherwise they could
not do if they did not manifest their option to serve, and that option had
to be made within 30 day from January 17, 1973, the date when
Proclamation No. 110 was issued. Of course, if the proposed
Constitution does not become effective, they continue to be members
of Congress under the 1935 Constitution. Let it be considered that the
members of the House of Representatives were elected in 1969 to
serve a term which will yet expire on December 31, 1973. Whereas, of
the Senators who opted to serve in the interim National Assembly, the
term of some of them will yet expire on December 31, 1973, some on
December 31, 1975, and the rest on December 31, 1977. Let if be
noted that 9 Senators did not opt to serve in the interim National

Assembly, and 18 members of the House of Representatives also did

not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new
Constitution. I cannot, in conscience, accept the reported affirmative
votes in the citizens assemblies as a true and correct expression by the
people of their approval, or acceptance, of the proposed Constitution. I
have my serious doubts regarding the freedom of the people to express
their views regarding the proposed Constitution during the voting in the
citizens assemblies, and I have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citizens
assemblies. This doubt has been engendered in my mind after a careful
examination and study of the records of these cases, particularly with
respect to the reports of the voting in the citizens assemblies. Perhaps,
it may be said that the people, or the inhabitants of this country, have
acquiesced to the new Constitution, in the sense that they have
continued to live peacefully and orderly under the government that has
been existing since January 17, 1973 when it was proclaimed that the
new Constitution came into effect. But what could the people do? In the
same way that the people have lived under martial law since
September 23, 1972, they also have to live under the government as it
now exists, and as it has existed since the declaration of martial law on
September 21, 1972, regardless of what Constitution is operative
whether it is the 1935 Constitution or the new Constitution. Indeed,
there is nothing that the people can do under the circumstances
actually prevailing in our country today circumstances, known to all,
and which I do not consider necessary to state in this opinion. I cannot
agree, therefore, with my worthy colleagues in the Court who hold the
view that the people have accepted the new Constitution, and that
because the people have accepted it, the new Constitution should be
considered as in force, regardless of the fact that it was not ratified in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution.
It is my honest view that the Constitution proposed by the 1971
Constitutional Convention has not come into effect. I do not say,
however, that the proposed Constitution is invalid. To me, the validity of
the proposed Constitution is not in issue in the cases before Us. What
the petitioners assail is not the validity of the proposed Constitution but
the validity of Presidential Proclamation No. 1102 which declares the
proposed Constitution as having been ratified and has come into effect.
It being my considered view that the ratification of the proposed
Constitution, as proclaimed in Proclamation No. 1102, is not in
accordance with the provisions of Section 1 of Article XV, of the 1935
Constitution, I hold that Proclamation No. 1102 is invalid and should not
be given force and effect. Their proposed Constitution, therefore, should
be considered as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in
conformity with Section 1 of Article XV of the 1935 Constitution.
Incidentally, I must state that the Constitution is still in force, and this
Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted
to the people in an election or plebiscite held in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as
we have adverted to in this opinion, this was the mandate of Congress
when, on March 16, 1967, it passed Resolution No. 2 calling a
convention to propose amendments to the 1935 Constitution. The Court
may take judicial notice of the fact that the President of the Philippines
has reassured the nation that the government of our Republic since the
declaration of martial law is not a revolutionary government, and that
he has been acting all the way in consonance with his powers under the
Constitution. The people of this Republic has reason to be happy
because, according to the President, we still have a constitutional
government. It being my view that the 1935 Constitution is still in force,
I believe Congress may still convene and pass a law calling for an
election at which the Constitution proposed by the 1971 Constitutional
Convention will be submitted to the people their ratification or rejection.
A plebiscite called pursuant to Section 1 of Article XV of the 1935
Constitution is an assurance to our people that we still have in our
country the Rule of Law and that the democratic system of government
that has been implanted in our country by the Americans, and which
has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire
on my part to bring about stability in democratic and constitutional
system in our country. I feel that if this Court would give its imprimatur
to the ratification of the proposed Constitution, as announced in
Proclamation No. 1102, it being very clear that the provisions of Section
1 of Article XV of the 1935 Constitution had not been complied with, We
will be opening the gates for a similar disregard of the Constitution in
the future. What I mean is that if this Court now declares that a new
Constitution is now in force because the members of the citizens
assemblies had approved the said new Constitution, although that
approval was not in accordance with the procedure and the
requirements prescribed in the 1935 Constitution, it can happen again
in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the
law, and then said proposed amendment is submitted to the people in
any manner and what will matter is that a basis is claimed that there
was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government.
As a member of this Court I only wish to contribute my humble efforts
to prevent the happening of such a situation in the future.

It appearing to me that the announced ratification of the proposed

Constitution through the voting in the citizens assemblies is a clear
violation of the 1935 Constitution, what I say in this opinion is simply an
endeavor on my part to be true to my oath of office to defend and
support the 1935 Constitution. I am inspired by what the great jurist
and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and
sanctity of our Constitution, and the protection and vindication of
popular rights will be safe and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George
Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to stretch forth a
saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in
the opinion that he has written in these cases. Along with him, I vote to
deny the motion to dismiss and give due course to the petitions in
these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such
transcendental significance is likely to confront this Court in the near or
distant future as that posed by these petitions. For while the specific
substantive issue is the validity of Presidential Proclamation No. 1102,
an adverse judgment may be fraught with consequences that, to say
the least, are far-reaching in its implications. As stressed by
respondents, "what petitioners really seek to invalidate is the new
Constitution." 1 Strict accuracy would of course qualify such statement
that what is in dispute, as noted in the opinion of the Chief Justice, goes
only as far as the validity of its ratification. It could very well be though
that the ultimate outcome is not confined within such limit, and this is
not to deny that under its aegis, there have been marked gains in the
social and economic sphere, but given the premise of continuity in a
regime under a fundamental law, which itself explicitly recognizes the
need for change and the process for bringing it about, 2 it seems to me
that the more appropriate course is this Court to give heed to the plea
of petitioners that the most serious attention be paid to their
submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due
respect for the opinion of my brethren, I must perforce dissent. It would
follow therefore that the legal position taken by the Chief Justice as set
forth with his usual lucidity and thoroughness has, on the whole, my
concurrence, subject, of course, to reservations insofar as it contains
views and nuances to which I have in the past expressed doubts.
Nonetheless, I feel that a brief expression of the reasons for the stand I
take would not be amiss.
In coping with its responsibility arising from the function of judicial
review, this Court is not expected to be an oracle given to utterances of
eternal verities, but certainly it is more than just a keen but passive
observer of the contemporary scene. It is, by virtue of its role under the
separation of powers concept, involved not necessarily as a participant
in the formation of government policy, but as an arbiter of its legality.
Even then, there is realism in what Lerner did say about the American
Supreme Court as "the focal point of a set of dynamic forces which
[could play] havoc with the landmarks of the American state and
determine the power configuration of the day." 3 That is why there is
this caveat. In the United States as here, the exercise of the power of
judicial review is conditioned on the necessity that the decision of a
case or controversy before it so requires. To repeat, the Justices of the
highest tribunal are not, as Justice Frankfurter made clear, "architects of
policy. They can nullify the policy of others, they are incapable of
fashioning their own solutions for social problems." 4 Nonetheless, as
was stressed by Professors Black 5 and Murphy, 6 a Supreme Court by
the conclusion it reaches and the decision it renders does not merely
check the coordinate branches, but also by its approval stamps with
legitimacy the action taken. Thus in affirming constitutional supremacy,
the political departments could seek the aid of the judiciary. For the
assent it gives to what has been done conduces to its support in a
regime where the rule of law holds sway. In discharging such a role, this
Court must necessarily take in account not only what the exigent needs
of the present demand but what may lie ahead in the unexplored and
unknown vistas of the future. It must guard against the pitfall of lack of
understanding of the dominant forces at work to seek a better life for
all, especially those suffering from the pangs of poverty and disease, by
a blind determination to adhere to the status quo. It would be tragic,
and a clear case of its being recreant to its trust, if the suspicion can
with reason be entertained that its approach amounts merely to a
militant vigilantism that is violently opposed to any form of social
change. It follows then that it does not suffice that recourse be had only
to what passes for scholarship in the law that could be marred by
inapplicable erudition and narrow legalism. Even with due recognition,
such factors, however, I cannot, for reasons to be set more lengthily
and in the light of the opinion of the Chief Justice, reach the same result
as the majority of my brethren. For, in the last analysis, it is my firm
conviction that the institution of judicial review speaks too clearly for
the point to be missed that official action, even with due allowance
made for the good faith that invariably inspires the step taken, has to
face the gauntlet of a court suit whenever there is a proper case with
the appropriate parties.

1. Respondents are acting in the soundest constitutional tradition when,

at the outset, they would seek a dismissal of these petitions. For them,
the question raised is political and thus beyond the jurisdiction of this
Court. Such an approach cannot be indicted for unorthodoxy. It is
implicit in the concept of the rule of law that rights belong to the people
and the government possesses powers only. Essentially then, unless
such an authority may either be predicated on express or implied grant
in the Constitution or the statutes, an exercise thereof cannot survive
an inquiry as to its validity. Respondents through Solicitor-General
Mendoza would deny our competence to proceed further. It is their
view, vigorously pressed and plausibly asserted, that since what is
involved is not merely the effectivity of an amendment but the actual
coming into effect of a new constitution, the matter is not justiciable.
The immediate reaction is that such a contention is to be tested in the
light of the fundamental doctrine of separation of powers that it is not
only the function but the solemn duty of the judiciary to determine what
the law is and to apply it in cases and controversies that call for
decision. 7 Since the Constitution pre-eminently occupies the highest
rung in the hierarchy of legal norms, it is in the judiciary, ultimately this
Tribunal, that such a responsibility is vested. With the 1935 Constitution
containing, as above noted, an explicit article on the subject of
amendments, it would follow that the presumption to be indulged in is
that the question of whether there has been deference to its terms is
for this Court to pass upon. What is more, the
Gonzales, 8 Tolentino 9 and Planas 10 cases speak unequivocally to that
effect. Nor is it a valid objection to this conclusion that what was
involved in those cases was the legality of the submission and not
ratification, for from the very language of the controlling article, the two
vital steps are proposal and ratification, which as pointed out in Dillon v.
Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps
in a single endeavor." 12 Once an aspect thereof is viewed as judicial,
there would be no justification for considering the rest as devoid of that
character. It would be for me then an indefensible retreat, deriving no
justification from circumstances of weight and gravity, if this Court were
to accede to what is sought by respondents and rule that the question
before us is political.
On this point, it may not be inappropriate to refer to a separate opinion
of mine in Lansang v. Garcia. 13 Thus: "The term has been made
applicable to controversies clearly non-judicial and therefore beyond its
jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to which there has been a prior legislative or executive
determination to which deference must be paid. It has likewise been
employed loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof. If to be
delimited with accuracy, "political questions" should refer to such as
would under the Constitution be decided by the people in their
sovereign capacity or in regard to full discretionary authority is vested
either in the President or Congress. It is thus beyond the competence of
the judiciary to pass upon. Unless clearly falling within the formulation,
the decision reached by the political branches whether in the form of a
congressional act or an executive order could be tested in court. Where
private rights are affected, the judiciary has no choice but to look into
its validity. It is not to be lost sight of that such a power comes into play
if there be an appropriate proceeding that may be filed only after each
coordinate branch has acted. Even when the Presidency or Congress
possesses plenary powers, its improvident exercise or the abuse
thereof, if shown, may give rise to a justiciable controversy. For the
constitutional grant of authority is usually unrestricted. There are limits
to what may be done and how it is to be accomplished. Necessarily
then, the courts in the proper exercise of judicial review could inquire
into the question of whether or not either of the two coordinate
branches has adhered to what is laid down by the Constitution. The
question thus posed is judicial rather than political." 14 The view
entertained by Professor Dodd is not too dissimilar. For him such a term
"is employed to designate certain types of functions committed to the
political organs of government (the legislative and executive
departments, or either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial decisions,
both federal and state, he could conclude: "The field of judicial
nonenforceability is important, but is not large when contrasted with
the whole body of written constitutional texts. The exceptions from
judicial enforceability fall primarily within the field of public or
governmental interests." 16 Nor was Professor Weston's formulation any
different. As was expressed by him: "Judicial questions, in what may be
thought the more useful sense, are those which the sovereign has set
to be decided in the courts. Political questions, similarly, are those
which the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own
extra-governmental action." 17 What appears undeniable then both from
the standpoint of Philippine as well as American decisions is the care
and circumspection required before the conclusion is warranted that the
matter at issue is beyond judicial cognizance, a political question being
raised.
2. The submission of respondents on this subject of political question,
admittedly one of complexity and importance, deserves to be pursued
further. They would derive much aid and comfort from the writings of
both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both
of whom in turn are unabashed admirers of Justice Brandeis. Whatever
be the merit inherent in their lack of enthusiasm for a more active and
positive role that must be played by the United States Supreme Court in

constitutional litigation, it must be judged in the light of our own history.

It cannot be denied that from the well nigh four decades of
constitutionalism in the Philippines, even discounting an almost similar
period of time dating from the inception of American sovereignty, there
has sprung a tradition of what has been aptly termed as judicial
activism. Such an approach could be traced to the valedictory address
before the 1935 Constitutional Convention of Claro M. Recto. He spoke
of the trust reposed in the judiciary in these words: "It is one of the
paradoxes of democracy that the people at times place more
confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty." 20 It would thus
appear that even then this Court was expected not to assume an
attitude of timidity and hesitancy when a constitutional question is
posed. There was the assumption of course that it would face up to
such a task, without regard to political considerations and with no
thought except that of discharging its trust. Witness these words Justice
Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If
it is ever necessary for us to make vehement affirmance during this
formative period of political history, it is that we are independent of the
Executive no less than of the Legislative department of our government
independent in the performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity, and unafraid
of criticism in the accomplishment of our sworn duty as we see it and as
we understand it." 22 The hope of course was that such assertion of
independence impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake that what
elicits approval on the part of our people of a judiciary ever alert to
inquire into alleged breaches of the fundamental law is the realization
that to do so is merely to do what is expected of it and that thereby
there is no invasion of spheres appropriately belonging to the political
branches. For it needs to be kept in kind always that it can act only
when there is a suit with proper parties before it, wherein rights
appropriate for judicial enforcement are sought to be vindicated. Then,
too, it does not approach constitutional questions with dogmatism or
apodictic certainty nor view them from the shining cliffs of perfection.
This is not to say though that it is satisfied with an empiricism
untroubled by the search for jural consistency and rational coherence. A
balance has to be struck. So juridical realism requires. Once allowance
made that for all its care and circumspection this Court manned by
human beings fettered by fallibility, nonetheless earnestly and sincerely
striving to do right, the public acceptance of its vigorous pursuit of the
task of assuring that the Constitution be obeyed is easy to understand.
It has not in the past shirked its responsibility to ascertain whether
there has been compliance with and fidelity to constitutional
requirements. Such is the teaching of a host of cases from Angara v.
Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should
continue to exercise its jurisdiction, even in the face of a plausible but
not sufficiently persuasive insistence that the matter before it is
political.
Nor am I persuaded that the reading of the current drift in American
legal scholarship by the Solicitor-General and his equally able
associates presents the whole picture. On the question of judicial
review, it is not a case of black and white; there are shaded areas. It
goes too far, in my view, if the perspective is one of dissatisfaction, with
its overtones of distrust. This expression of disapproval has not escaped
Dean Rostow of Yale, who began one of his most celebrated legal
essays. The Democratic Character of Judicial Review, thus: "A theme of
uneasiness, and even of guilt, colors the literature about judicial review.
Many of those who have talked, lectured, and written about the
Constitution have been troubled by a sense that judicial review is
undemocratic." 25 He went on to state: "Judicial review, they have
urged, is an undemocratic shoot on an otherwise respectable tree. It
should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The
power of constitutional review, to be exercised by some part of the
government, is implicit in the conception of a written constitution
delegating limited powers. A written constitution would promote discord
rather than order in society if there were no accepted authority to
construe it, at the least in case of conflicting action by different
branches of government or of constitutionally unauthorized
governmental action against individuals. The limitation and separation
of powers, if they are to survive, require a procedure for independent
mediation and construction to reconcile the inevitable disputes over the
boundaries of constitutional power which arise in the process of
government." 27 More than that, he took pains to emphasize: "Whether
another method of enforcing the Constitution could have been devised,
the short answer is that no such method developed. The argument over
the constitutionality of judicial review has long since been settled by
history. The power and duty of the Supreme Court to declare statutes or
executive action unconstitutional in appropriate cases is part of the
living Constitution. 'The course of constitutional history,' Mr. Justice
Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade.' " 28 Nor
is it only Dean Rostow who could point Frankfurter, reputed to belong to
the same school of thought opposed to judicial activism, if not its
leading advocate during his long stay in the United States Supreme
Court, as one fully cognizant of the stigma that attaches to a tribunal
which neglects to meet the demands of judicial review. There is a
statement of similar importance from Professor Mason: "In Stein v. New

York Frankfurter remarked, somewhat self-consciously perhaps, that the

'duty of deference cannot be allowed imperceptibly to slide into
abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept
characterization of judicial review as undemocratic. Thus his study of
Holmes and Brandeis, the following appears: "When it is said that
judicial review is an undemocratic feature of our political system, it
ought also to be remembered that architects of that system did not
equate constitutional government with unbridled majority rule. Out of
their concern for political stability and security for private rights, ...,
they designed a structure whose keystone was to consist of barriers to
the untrammeled exercise of power by any group. They perceived no
contradiction between effective government and constitutional checks.
To James Madison, who may legitimately be regarded as the philosopher
of the Constitution, the scheme of mutual restraints was the best
answer to what he viewed as the chief problem in erecting a system of
free representative government: 'In framing a government which is to
be administered by men over men, the great difficulty lies in this: you
must first enable the government to control the governed; and in the
next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it
be that the tone of discontent apparent in the writings of eminent
authorities on the subject evince at the most fears that the American
Supreme Court might overstep the bounds allotted to the judiciary? It
cannot be a denial of the fitness of such competence being vested in
judges and of their being called upon to fulfill such a trust whenever
appropriate to the decision of a case before them. That is why it has
been correctly maintained that notwithstanding the absence of any
explicit provision in the fundamental law of the United States
Constitution, that distinguished American constitutional historian,
Professor Corwin, could rightfully state that judicial review "is simply
incidental to the power of courts to interpret the law, of which the
Constitution is part, in connection with the decision of cases." 31 This is
not to deny that there are those who would place the blame or the
credit, depending upon one's predilection, on Marshall's epochal opinion
in Marbury v. Madison.32 Curtis belonged to that persuasion. As he put
it: "The problem was given no answer by the Constitution. A hole was
left where the Court might drive in the peg of judicial supremacy, if it
could. And that is what John Marshall did." 33 At any rate there was
something in the soil of American juristic thought resulting in this tree
of judicial power so precariously planted by Marshall striking deep roots
and showing wonderful vitality and hardiness. It now dominates the
American legal scene. Through it, Chief Justice Hughes, before
occupying that exalted position, could state in a lecture: "We are under
a Constitution, but the Constitution is what the judges say it
is ... ." 34 The above statement is more than just an aphorism that lends
itself to inclusion in judicial anthologies or bar association speeches. It
could and did provoke from Justice Jackson, an exponent of the judicial
restraint school of thought, this meaningful query: "The Constitution
nowhere provides that it shall be what the judges say it is. How, did it
come about that the statement not only could be but could become
current as the most understandable comprehensive summary of
American Constitutional law?" 35 It is no wonder that Professor Haines
could pithily and succinctly sum up the place of the highest American
tribunal in the scheme of things in this wise: "The Supreme Court of the
United States has come to be regarded as the unique feature of the
American governmental system." 36 Let me not be misunderstood.
There is here no attempt to close one's eyes to a discernible tendency
on the part of some distinguished faculty minds to look askance at what
for them may be inadvisable extension of judicial authority. For such
indeed is the case as reflected in two leading cases of recent
vintage, Baker v. Carr, 37 decided in 1962 and Powell v.
MacCormack, 38 in 1969, both noted in the opinion of the Chief Justice.
The former disregarded the warning of Justice Frankfurter in Colegrove
v. Green 39 about the American Supreme Court declining jurisdiction on
the question of apportionment as to do so would cut very deep into the
very being of Congress." 40 For him, the judiciary "ought not to enter
this political thicket." Baker has since then been followed; it has
spawned a host of cases. 41 Powell, on the question of the power of a
legislative body to exclude from its ranks a person whose qualifications
are uncontested, for many the very staple of what is essentially
political, certainly goes even further than the authoritative Philippine
decision of Vera v. Avelino, 42 It does look then that even in the United
States, the plea for judicial self-restraint, even if given voice by those
competent in the field of constitutional law, has fallen on deaf ears.
There is in the comments of respondents an excerpt from Professor
Freund quoting from one of his essays appearing in a volume published
in 1968. It is not without interest to note that in another paper, also
included therein, he was less than assertive about the necessity for selfrestraint and apparently mindful of the claims of judicial activism. Thus:
"First of all, the Court has a responsibility to maintain the constitutional
order, the distribution of public power, and the limitations on that
power." 43 As for Professor Bickel, it has been said that as counsel for
the New York Times in the famous Vietnam papers case, 44 he was less
than insistent on the American Supreme Court exercising judicial selfrestraint. There are signs that the contending forces on such question,
for some an unequal contest, are now quiescent. The fervor that
characterized the expression of their respective points of view appears
to have been minimized. Not that it is to be expected that it will entirely
disappear, considering how dearly cherished are, for each group, the
convictions, prejudices one might even say, entertained. At least what

once was fitly characterized as the booming guns of rhetoric, coming

from both directions, have been muted. Of late, scholarly disputations
have been centered on the standards that should govern the exercise of
the power of judicial review. In his celebrated Holmes lecture in 1959 at
the Harvard Law School, Professor Wechsler advocated as basis for
decision what he termed neutral principles of constitutional law. 45 It
has brought forth a plethora of law review articles, the reaction ranging
from guarded conformity to caustic criticism. 46 There was, to be sure,
no clear call to a court in effect abandoning the responsibility
incumbent on it to keep governmental agencies within constitutional
channels. The matter has been put in temperate terms by Professor
Frank thus: "When allowance has been made for all factors, it
nevertheless seems to me that the doctrine of political questions ought
to be very sharply confined to where the functional reasons justify it
and that in a give involving its expansion there should be careful
consideration also of the social considerations which may militate
against it. The doctrine has a certain specious charm because of its nice
intellectualism and because of the fine deference it permits to
expertise, to secret knowledge, and to the prerogatives of others. It
should not be allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from
such impeccable sources of the worth and significance of judicial review
in the United States. I cannot resist the conclusion then that the views
advanced on this subject by distinguished counsel for petitioners, with
Senators Lorenzo M. Taada and Jovito Salonga at the van, rather than
the advocacy of the Solicitor-General, possess the greater weight and
carry persuasion. So much then for the invocation of the political
question principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The
crucial point that had to be met is whether Proclamation No. 1102
manifests fidelity to the explicit terms of Article XV. There is, of course,
the view not offensive to reason that a sense of the realities should
temper the rigidity of devotion to the strict letter of the text to allow
deference to its spirit to control. With due recognition of its force in
constitutional litigation, 48 if my reading of the events and the process
that led to such proclamation, so clearly set forth in the opinion of the
Chief Justice, is not inaccurate, then it cannot be confidently asserted
that there was such compliance. It would be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts. Any
other conclusion would, for me, require an interpretation that borders
on the strained. So it has to be if one does not lose sight of how the
article on amendments is phrased. A word, to paraphrase Justice
Holmes may not be a crystal, transparent and unchanged, but it is not,
to borrow from Learned Hand, that eminent jurist, a rubber band either.
It would be unwarranted in my view then to assert that the
requirements of the 1935 Constitution have been met. There are
American decisions, 49 and they are not few in number, which require
that there be obedience to the literal terms of the applicable provision.
It is understandable why it should be thus. If the Constitution is the
supreme law, then its mandate must be fulfilled. No evasion is
tolerated. Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or disregarded. This is
not to deny that a recognition conclusive effect attached to the
electorate manifesting its will to vote affirmatively on the amendments
proposed poses an obstacle to the judiciary being insistent on the
utmost regularity. Briefly stated, substantial compliance is enough. A
great many American State decisions may be cited in support of such a
doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in
terms too clear to be misread, so that this Court is called upon to give
meaning and perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever obscurity it
possesses is illumined when the light of the previous legislation is
thrown on it. In the first Commonwealth Act, 51 submitting to the Filipino
people for approval or disapproval certain amendments to the original
ordinance appended to the 1935 Constitution, it was made that the
election for such purpose was to "be conducted in conformity with the
provisions of the Election Code insofar as the same may be
applicable." 52 Then came the statute, 53 calling for the plebiscite on the
three 1940 amendments providing for the plebiscite on the three 1930
amendments providing for a bicameral Congress or a Senate and a
House of Representatives to take the place of a unicameral National
Assembly, 54 reducing the term of the President to four years but
allowing his re-election with the limitation that he cannot serve more
than eight consecutive years, 55 and creating an independent
Commission on Elections.56 Again, it was expressly provided that the
election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 57 The approval
of the present parity amendment was by virtue of a Republic
Act 58 which specifically made applicable the then Election
Code. 59 There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional
Convention, saw to it that there be an increase in the membership of
the House of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to become
members of such constituent body without forfeiting their seats, as
proposed amendments to be voted on in the 1967 elections. 61 That is
the consistent course of interpretation followed by the legislative
branch. It is most persuasive, if not controlling. The restraints thus
imposed would set limits to the Presidential action taken, even on the

assumption that either as an agent of the Constitutional Convention or

under his martial law prerogatives, he was not devoid of power to
specify the mode of ratification. On two vital points, who can vote and
how they register their will, Article XV had been given a definitive
construction. That is why I fail to see sufficient justification for this
Court affixing the imprimatur of its approval on the mode employed for
the ratification of the revised Constitution as reflected in Proclamation
No. 1102.
4. Nor is the matter before us solely to be determined by the failure to
comply with the requirements of Article XV. Independently of the lack of
validity of the ratification of the new Constitution, if it be accepted by
the people, in whom sovereignty resides according to the
Constitution, 62 then this Court cannot refuse to yield assent to such a
political decision of the utmost gravity, conclusive in its effect. Such a
fundamental principle is meaningless if it does not imply, to follow
Laski, that the nation as a whole constitutes the "single center of
ultimate reference," necessarily the possessor of that "power that is
able to resolve disputes by saying the last word." 63 If the origins of the
democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced
back to Athens and to Rome, it is no doubt true, as McIver pointed out,
that only with the recognition of the nation as the separate political unit
in public law is there the juridical recognition of the people composing it
"as the source of political authority." 64From them, as Corwin did stress,
emanate "the highest possible embodiment of human will," 65 which is
supreme and must be obeyed. To avoid any confusion and in the
interest of clarity, it should be expressed in the manner ordained by
law. Even if such is not the case, however, once it is manifested, it is to
be accepted as final and authoritative. The government which is merely
an agency to register its commands has no choice but to submit. Its
officials must act accordingly. No agency is exempt such a duty, not
even this Court. In that sense, the lack of regularity in the method
employed to register its wishes is fatal in its consequences. Once the
fact of acceptance by people of a new fundamental law is made
evident, the judiciary is left with no choice but to accord it recognition.
The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine.
While certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in
the opinion of Chief Justice Holt that on May 3, 1890, an act was passed
in Kentucky, providing for the calling of a convention for the purpose of
framing a new constitution and the election of delegates. It provided
that before any form of constitution made by them should become
operative, it should be submitted to the vote of the state and ratified by
a majority of those voting. The constitution then in force authorized the
legislature, the preliminary steps having been taken, to call a
convention "for the purpose of readopting, amending, or changing" it
contained no provision giving the legislature the power to require a
submission of its work to a vote of the people. The convention met in
September, 1890. By April, 1891, it completed a draft of a constitution,
submitted it to a popular vote, and then adjourned until September
following. When the convention reassembled, the delegates made
numerous changes in instrument. As thus amended, it was promulgated
by the convention of September 28, 1891, as the new constitution. An
action was brought to challenge its validity. It failed in the lower court.
In affirming such judgment dismissing the action, Chief Justice Holt
stated: "If a set of men, not selected by the people according to the
forms of law, were to formulate an instrument and declare it the
constitution, it would undoubtedly be the duty of the courts to declare
its work a nullity. This would be revolution, and this the courts of the
existing government must resist until they are overturned by power,
and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid
as a constitution has been made and promulgated according to the
forms of law. It is a matter of current history that both the executive
and legislative branches of the government have recognized its validity
as a constitution, and are now daily doing so. ... While the judiciary
should protect the rights of the people with great care and jealousy,
because this is its duty, and also because; in times of great popular
excitement, it is usually their last resort, yet it should at the same time
be careful not to overstep the proper bounds of its power, as being
perhaps equally dangerous; and especially where such momentous
results might follow as would be likely in this instance, if the power of
the judiciary permitted, and its duty requires, the overthrow of the work
of the convention." 67 InTaylor v. Commonwealth, 68 a 1903 decision, it
was contended that the Virginia Constitution reclaimed in 1902 is
invalid as it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people. The Court
rejected such a view. As stated in the opinion of Justice Harrison: "The
Constitution of 1902 was ordained and proclaimed by a convention duly
called by direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of the convention has been
recognized, accepted, and acted upon as the only valid Constitution of
the state by the Governor in swearing fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal official act adopting a
joint resolution, July 15, 1902, recognizing the Constitution ordained by
the convention which assembled in the city of Richmond on the 12th
day of June, 1901, as the Constitution of Virginia; by the individual
oaths of members to support it, and by enforcing its provisions; and the
people in their primary capacity by peacefully accepting it and

acquiescing in it, by registering as voters under it to the extent of

thousands throughout the state, and by voting, under its provisions, at
a general election for their representatives in the Congress of the
United States. The Constitution having been thus acknowledged and
accepted by the office administering the government and by the people
of the state, and there being no government in existence under the
Constitution of 1869 opposing or denying its validity, we have no
difficulty in holding that the Constitution in question, which went into
effect at noon on the 10th day of July, 1902, is the only rightful, valid,
and existing Constitution of this state, and that to it all the citizens of
Virginia owe their obedience and loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are
lacking for the claim that the revised Constitution has been accepted by
the Filipino people. What is more, so it has been argued, it is not merely
a case of its being implied. Through the Citizens Assemblies, there was
a plebiscite with the result as indicated in Proclamation No. 1102. From
the standpoint of respondents then, they could allege that there was
more than just mere acquiescence by the sovereign people. Its will was
thus expressed formally and unmistakably. It may be added that there
was nothing inherently objectionable in the informal method followed in
ascertaining its preference. Nor is the fact that Filipinos of both sexes
above the age of fifteen were given the opportunity to vote to be
deplored. The greater the base of mass participation, the more there is
fealty to the democratic concept. It does logically follow likewise that
such circumstances being conceded, then no justifiable question may
be raised. This Court is to respect what had thus received the people's
sanction. That is not for me though whole of it. Further scrutiny even
then is not entirely foreclosed. There is still an aspect that is judicial, an
inquiry may be had as to whether such indeed was the result. This is no
more than what the courts do in election cases. There are other factors
to bear in mind. The fact that the President so certified is well-nigh
conclusive. There is in addition the evidence flowing from the conditions
of peace and stability. There thus appears to be conformity to the
existing order of things. The daily course of events yields such a
conclusion. What is more, the officials under the 1935 Constitution,
including practically all Representatives and a majority of the Senators,
have signified their assent to it. The thought persists, however, that as
yet sufficient time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being
dismissed for such ascertainment of popular will did take place during a
period of martial law. It would have been different had there been that
freedom of debate with the least interference, thus allowing a free
market of ideas. If it were thus, it could be truly said that there was no
barrier to liberty of choice. It would be a clear-cut decision either way.
One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by
individuals with their personal concerns uppermost in mind, worried
about their immediate needs and captive to their existing moods. That
is inherent in any human institution, much more so in a democratic
polity. Nor is it open to any valid objection because in the final analysis
the state exists for the individuals who in their collectivity compose it.
Whatever be their views, they are entitled to respect. It is difficult for
me, however, at this stage to feel secure in the conviction that they did
utilize the occasion afforded to give expression to what was really in
their hearts. This is not to imply that such doubt could not be dispelled
by evidence to the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable to
join the ranks of my esteemed brethren who vote for the dismissal of
these petitions. I cannot yield an affirmative response to the plea of
respondents to consider the matter closed, the proceedings terminated
once and for all. It is not an easy decision to reach. It has occasioned
deep thought and considerable soul-searching. For there are
countervailing considerations that exert a compulsion not easy to resist.
It can be asserted with truth, especially in the field of social and
economic rights, that with the revised Constitution, there is an
auspicious beginning for further progress. Then too it could resolve
what appeared to be the deepening contradictions of political life,
reducing at times governmental authority to near impotence and
imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy
grows. It is one which has all the earmarks of being responsive to the
dominant needs of the times. It represents an outlook cognizant of the
tensions of a turbulent era that is the present. That is why for some
what was done represented an act of courage and faith, coupled with
the hope that the solution arrived at is a harbinger of a bright and rosy
future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being
further considered, the least interference, with the executive
department. The President in the discharge of all his functions is
entitled to obedience. He remains commander-in-chief with all the
constitutional powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised Constitution. They can
pursue even the tenor of their ways. They are free to act according to
its tenets. That was so these past few weeks, even petitions were filed.
There was not at any time any thought of any restraining order. So it
was before. That is how things are expected to remain even if the
motions to dismiss were not granted. It might be asked though,

suppose the petitions should prevail? What then? Even so, the decision
of this Court need not be executory right away. Such a disposition of a
case before this Court is not novel. That was how it was done in the
Emergency Powers Act controversy. 70 Once compliance is had with the
requirements of Article XV of the 1935 Constitution, to assure that the
coming force of the revised charter is free from any taint of infirmity,
then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality.
What is more, it may give the impression of reliance on what may, for
the practical man of affairs, be no more than gossamer distinctions and
sterile refinements unrelated to events. That may be so, but I find it
impossible to transcend what for me are the implications of traditional
constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have
served their day. He could at times even look upon them as mere
scribblings in the sands to be washed away by the advancing tides of
the present. The introduction of novel concepts may be carried only so
far though. As Cardozo put the matter: "The judge, even when he is
free, is still not wholly free. He is not to innovate at pleasure. He is not a
knight-errant, roaming at will in pursuit of his own ideal of beauty or of
goodness. He is to draw his inspiration from consecrated principles. He
is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to
"the primordial necessity of order in the social life." Wide enough in all
conscience is the field of discretion that remains." 71 Moreover what
made it difficult for this Court to apply settled principles, which for me
have not lost their validity, is traceable to the fact that the revised
Constitution was made to take effect immediately upon ratification. If a
period of time were allowed to elapse precisely to enable the judicial
power to be exercised, no complication would have arisen. Likewise,
had there been only one or two amendments, no such problem would
be before us. That is why I do not see sufficient justification for the
orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that
it ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me to
vote the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals
with the momentous issues of the cases at bar in all their complexity
commands my concurrence.
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
The unprecedented and precedent-setting issue submitted by
petitioners for the Court's resolution is the validity and constitutionality
of Presidential Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution proposed by the 1971
Constitutional Convention "has been ratified by an overwhelming
majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come
into effect."
More specifically, the issue submitted is whether the purported
ratification of the proposed Constitution by means of the Citizens
Assemblies has substantially complied with the mandate of Article XV of
the existing Constitution of 1935 that duly proposed amendments
thereto, in toto or parts thereof, "shall be valid as part of this
Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the peoplefor
their ratification." 1
A necessary corollary issue is whether the purported ratification of the
proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially
complied with its own mandate that "(T)his Constitution shall take
immediately upon its ratification by a majority of the votes cast in
aplebiscite called for the purpose and except as herein provided, shall
supersede the Constitution of Nineteen hundred and thirty-five and all
amendments thereto." 2
Respondents contend that "(A)lthough apparently what is sought to be
annulled is Proclamation No. 1102, what petitioners really seek to
invalidate is the new Constitution", and their actions must be
dismissed, because:
"the Court may not inquire into the validity of the procedure for
ratification" which is "political in character" and that "what is sought to
be invalidated is not an act of the President but of the people;
"(T)he fact of approval of the new Constitution by an overwhelming
majority of the votes cast asdeclared and certified in Proclamation No.
1102 is conclusive on the courts;
"Proclamation No. 1102 was issued by the President in the exercise
of legislative power under martial law. ... Alternatively, or
contemporaneously, he did so as "agent" of the Constitutional
Convention;"
"alleged defects, such as absence of secret voting, enfranchisement
of persons less than 21 years, non supervision (by) the Comelec are
matters not required by Article XV of the 1935 Constitution"; (sic)
"after ratification, whatever defects there might have been in the
procedure are overcome andmooted (and muted) by the fact of
ratification"; and

"(A)ssuming finally that Article XV of the 1935 Constitution was not

strictly followed, the ratification of the new Constitution must
nonetheless be respected. For the procedure outlined in Article XV
wasnot intended to be exclusive of other procedures, especially one
which contemplates popular and direct participation of the
citizenry ... ." 3
To test the validity of respondents' submittal that the Court, in annulling
Proclamation No. 1102 would really be "invalidating the new
Constitution", the terms and premises of the issues have to be defined.
Respondents themselves assert that "Proclamation No. 1102 ... is
plainly merely declaratory of the fact that the 1973 Constitution has
been ratified and has come into force. 4
The measure of the fact of ratification is Article XV of the 1935
Constitution. This has been consistently held by the Court in
the Gonzales: 5 and Tolentino 6 cases.
In the Tolentino case, this Court emphasized "that the provisions of
Section 1 of Article XV of the Constitution, dealing with the procedure
or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government. It must be
added that ... they are no less binding upon the people." 7
In the same Tolentino case, this Court further proclaimed that "as
long as any amendment is formulated and submitted under the aegis of
the present Charter, any proposal for such amendment which is not in
conformity with the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court." 8
As continues to be held by a majority of this Court, proposed
amendments to the Constitution "should be ratified in only one way,
that is, in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters" 9 and under
the supervision of the Commission on Elections. 10
Hence, if the Court declares Proclamation 1102 null and void
because on its face, the purported ratification of the proposed
Constitution has not faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of
ratification thereof by means of the Citizens Assemblies referendums
does not pass the constitutional test and that the proposed new
Constitution has not constitutionally come into existence.
Since Proclamation 1102 is acknowledged by respondent to be
"plainly merely declaratory" of the disputed fact of ratification, they
cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratification
therein declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not)
result" from a judicial declaration of nullity of the purported ratification
is raised by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the
Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on
August 26, 1949 for lack of the required six (6) votes, finally declared in
effect that the pre-war emergency powers delegated by Congress to the
President, under Commonwealth Act 671 in pursuance of Article VI,
section 26 of the Constitution, had ceased and became inoperative at
the latest in May, 1946 when Congress met in its first regular session on
May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good
faith and with the best of intentions by three successive Presidents, and
some of them may have already produced extensive effects on the life
of the nation" in the same manner as may have arisen under the
bona fide acts of the President now in the honest belief that the 1972
Constitution had been validly ratified by means of the Citizens
Assemblies referendums and indicated the proper course and
solution therefor, which were duly abided by and confusion and disorder
as well as harm to public interest and innocent parties thereby avoided
as follows:
Upon the other hand, while I believe that the emergency powers had
ceased in June 1945, I am not prepared to hold that all executive orders
issued thereafter under Commonwealth Act No. 671, areper se null and
void. It must be borne in mind that these executive orders had been
issued in good faith and with the best of intentions by three successive
Presidents, and some of them may have already produced extensive
effects in the life of the nation. We have, for instance, Executive Order
No. 73, issued on November 12, 1945, appropriating the sum of
P6,750,000 for public works; Executive Order No. 86, issued on January
7, 1946, amending a previous order regarding the organization of the
Supreme Court; Executive Order No. 89, issued on January 1, 1946,
reorganizing Courts of First Instance; Executive Order No. 184, issued
on November 19, 1948, controlling rice and palay to combat hunger;
and other executive orders appropriating funds for other purposes. The
consequences of a blanket nullification of all these executive orders will
be unquestionably serious and harmful. And I hold that before nullifying
them, other important circumstances should be inquired into, as for
instance, whether or not they have been ratified by Congress expressly
or impliedly, whether their purposes have already been accomplished
entirely or partially, and in the last instance, to what extent;

acquiescence of litigants; de facto officers; acts and contracts of parties

acting in good faith; etc. It is my opinion that each executive order must
be viewed in the light of its peculiar circumstances, and, if necessary
and possible, nullifying it, precautionary measures should be taken
to avoid harm to public interest and innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the
executive orders on rentals and export control but to defer judgment on
the Rodriguez and Barredo petitions for judicial declarations of nullity of
the executive orders appropriating the 1949-1950 fiscal year budget for
the government and P6 million for the holding of the 1949 national
elections. After rehearsing, he further voted to also declare null and
void the last two executive orders appropriating funds for the 1949
budget and elections, completing the "sufficient majority" of six against
four dissenting justices "to pronounce a valid judgment on that
matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and
possible "harmful consequences" in the following passage, which bears
re-reading:
However, now that the holding of a special session of Congress for the
purpose of remedying the nullity of the executive orders in question
appears remote and uncertain, I am compelled to, and do hereby, give
my unqualified concurrence in the decision penned by Mr. Justice
Tuason declaring that these two executive orders were issued without
authority of law.
While in voting for a temporary deferment of the judgment I was moved
by the belief that positive compliance with the Constitution by the other
branches of the Government, which is our prime concern in all these
cases, would be effected, and indefinite deferment will produce the
opposite result because it would legitimize a prolonged or permanent
evasion of our organic law. Executive orders which are, in our opinion,
repugnant to the Constitution, would be given permanent life, opening
the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring
opinion, would come to pass should the said executive orders be
immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress is
not now forthcoming. However, the remedy now lies in the hands of the
Chief Executive and of Congress, for the Constitution vests in the
former the power to call a special session should the need for one arise,
and in the latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a
remote possibility, for under the circumstances it fully realizes its great
responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers
may, if he so desires, compel Congress to remain in special session till it
approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge
victorious as a permanent way of life in this country, if each of the great
branches of the Government, within its own allocated sphere, complies
with its own constitutional duty, uncompromisingly and regardless of
difficulties.
Our Republic is still young, and the vital principles underlying its organic
structure should be maintained firm and strong, hard as the best of
steel, so as to insure its growth and development along solid lines of a
stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders)
likewise observed that "(T)he truth is that under our concept of
constitutional government, in times of extreme perils more than in
normal circumstances 'the various branches, executive, legislative, and
judicial,' given the ability to act, are called upon 'to perform the duties
discharge the responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its
duty and responsibility has been considerably lightened by the
President's public manifestation of adherence to constitutional
processes and of working within the proper constitutional framework as
per his press conference of January 20,1973, wherein he stated that
"(T)he Supreme Court is the final arbiter of the Constitution. It can and
will probably determine the validity of this Constitution. I did not want
to talk about this because actually there is a case pending before the
Supreme Court. But suffice it to say that I recognize the power of the
Supreme Court. With respect to appointments, the matter falls under a
general provision which authorizes the Prime Minister to appoint
additional members to the Supreme Court. Until the matter of the new
Constitution is decided, I have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme
Court of Mississippi held that the questions of whether the submission
of the proposed constitutional amendment of the State Constitution
providing for an elective, instead of an appointive, judiciary and
whether the proposition was in fact adopted, were justifiable and not
political questions, we may echo the words therein of Chief Justice
Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by
the Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the
particular instance in which we are now acting, our duty to know what
the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult

and embarrassing duty, one which we have not sought, but one which,
like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my
colleagues' contrary views, we are faced with the hard choice of
maintaining a firm and strict perhaps, even rigid stand that the
Constitution is a "superior paramount law, unchangeable by ordinary
means" save in the particular mode and manner prescribed therein by
the people, who, in Cooley's words, so "tied up (not only) the hands of
their official agencies, but their own hands as well" 18 in the exercise of
their sovereign will or a liberal and flexible stand that would consider
compliance with the constitutional article on the amending process as
merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies
that the Constitution may be amended in toto or
otherwise exclusively "by approval by a majority of the votes
cast an election at which the amendments are submitted to the people
for their ratification", 19 participated in only by qualified and
duly registered voters twenty-one years of age or over 20 and
duly supervised by the Commission on Elections, 21 in accordance with
the cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of
said requirements on the theory urged by respondents that "the
procedure outlined in Article XV was not intended to be exclusive of
other procedures especially one which contemplates popular and direct
participation of the citizenry", 22 that the constitutional age and literacy
requirements and other statutory safeguards for ascertaining the will of
the majority of the people may likewise be changed as "suggested, if
not prescribed, by the people (through the Citizens Assemblies)
themselves", 23 and that the Comelec is constitutionally "mandated to
oversee ... elections (of public officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison 25 the U.S. Supreme Court's
power of judicial review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two alternatives.
As Marshall expounded it: "(T)he Constitution is either a superior
paramount law, unchangeable by ordinary means, or it is on a level
with ordinary legislative acts, and, like other acts, alterable when the
legislature shall please to alter it. If the former part of the alternative be
true, then a legislative act, contrary to the Constitution, is not law; if
the latter part be true, then written constitutions are absurd attempts
on the part of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third
later in the 1936 landmark case of Angara vs. Electoral
Commission, 26 "(T)he Constitution sets forth in no uncertain language
the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it would
be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the limitations of
good government and restrictions embodied in our Constitution are real
as they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and
stressed that "when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation
entrusted to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case
of McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never
forget that it is a constitution we are expounding," termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law most important because most comprehensive and
comprehending." 29 This enduring concept to my mind permeated to
this Court's exposition and rationale in the hallmark case of Tolentino,
wherein we rejected the contentions on the Convention's behalf "that
the issue ... is a political question and that the Convention being a
legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the
Courts." 30
This Court therein made its unequivocal choice of strictly
requiring faithful (which really includes substantial) compliance with
the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971
prohibiting the submittal in an advance election of 1971 Constitutional
Convention's Organic Resolution No. 1 proposing to amend Article V,
section 1 of the Constitution by lowering the voting age to 18 years
(vice 21 years) 30a "without prejudice to other amendments that will be
proposed in the future ... on other portions of the amended section",
this Court stated that "the constitutional provision in question (as
proposed) presents no doubt which may be resolved in favor of
respondents and intervenors. We do not believe such doubt can exist
only because it is urged that the end sought to be achieved is to

be desired. Paraphrasing no less than the President of Constitutional

Convention of 1934, Claro M. Recto, let those who would put aside,
invoking grounds at best controversial, any mandate of the
fundamental law purportedly in order to attain some laudable objective
bear in mind that someday somehow others with purportedly more
laudable objectives may take advantage of the precedent and continue
the destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members
are all subject to all the provisions of the existing Constitution. Now We
hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing
an ordinary legislation. Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such as the
one our founding fathers have chosen for this nation, and which we of
the succeeding generations generally cherish. And because the
Constitution affects thelives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and
those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for
deliberation and study. It is obvious that correspondingly,any
amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with
as much care and deliberation. From the very nature of things, the
drafters of an original constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save those that they
may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is not
lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages, or
for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process
of their amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates
of any subsequent convention to claim that they may ignore and
disregard such conditions because they are powerful and omnipotent as
their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine
of proper submission first advanced in Gonzales vs. Comelec 33, thus:
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basisfor
an intelligent appraisal of the nature of amendment per se as well as
its relation to the other parts of the Constitution with which it has to
form a harmonious whole. In the context of the present state of things,
where the Convention hardly started considering the merits of
hundreds, if not thousands, proposals to amend the existing
Constitution, to present to people any single proposal or a few of them
cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a
plebiscite or "election" wherein the people are in the dark as to frame
of reference they can base their judgment on. We reject the
rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are stating
the sole purpose of the proposed amendment is to enable the eighteen
year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the
proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, 'no
proper submission.' " 34
4. Four other members of the Court 35 in a separate concurrence
in Tolentino, expressed their "essential agreement" with Justice
Sanchez' separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimumrequirements that
must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are not
to vote blindly. They must be afforded ample opportunity to mull over
the original provisions, compare them with the proposed amendments,
and try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the
government, within its maximum capabilities, should strain every effort
to inform every citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof. By
this, we are not to be understood as saying that, if one citizen or 100

citizens or 1,000 citizens cannot be reached, then there is no

submission within the meaning of the word as intended by the framers
of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of
ratification or rejection. For as we have earlier stated, one thing is
submission and another is ratification. There must be fair submission,
intelligent consent or rejection. 36
They stressed further the need for undivided attention, sufficient
information and full debate, conformably to the intendment of Article
XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically assail
the average voter. Why should the voting age be lowered at all, in the
first place? Why should the new voting age be precisely 18 years, and
not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old, so that there is no need of an educational
qualification to entitle him to vote? In this age of permissiveness and
dissent, can the 18-year old be relied upon to vote with judiciousness
when the 21-year old, in the past elections, has not performed so well?
If the proposed amendment is voted down by the people, will the
Constitutional Convention insist on the said amendment? Why is there
an unseemly haste on the part of the Constitutional Convention in
having this particular proposed amendment ratified at this particular
time? Do some of the members of the Convention have future political
plans which they want to begin to subserve by the approval this year of
this amendment? If this amendment is approved, does it thereby mean
that the 18-year old should not also shoulder the moral and legal
responsibilities of the 21-year old? Will he be required to compulsory
military service under the colors? Will the contractual consent be
reduced to 18 years? If I vote against the amendment, will I not be
unfair to my own child who will be 18 years old, come 1973?
The above are just samplings from here, there and everywhere from
a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added
to the already long litany. And the answers cannot except as the
questions are debated fully, pondered upon purposefully, and accorded
undivided attention.
Scanning the contemporary scene, we say that the people are not, and
by election time will not be,sufficiently informed of the meaning, nature
and effects of the proposed constitutional amendment. They have not
been afforded ample time to deliberate thereon conscientiously. They
have been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment
by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom
proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory
requirements of the amending process "in favor of allowing the
sovereign people to express their decision on the proposed
amendments" as "anachronistic in the real constitutionalism and
repugnant to the essence of the rule of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been
ordained by the 'Filipino people, imploring the aid of Divine Providence.'
Section 1 of Article XV is nothing than a part of the Constitution
thus ordained by the people. Hence, in construing said section, We
must read it as if thepeople had said, 'This Constitution may
be amended, but it is our will that the amendment must
beproposed and submitted to Us for ratification only in the manner
herein provided.' ... Accordingly, the real issue here cannot be whether
or not the amending process delineated by the present Constitution
may be disregarded in favor of allowing the sovereign people to express
their decision on the proposed amendments, if only because it is
evident that the very idea of departing from the fundamental law
is anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law; rather, it is whether or not the provisional
nature of the proposed amendment and themanner of its submission to
the people for ratification or rejection conform with the mandate of the
people themselves in such regard, as expressed in, the Constitution
itself. 38
6. This Court, in not heeding the popular clamor, thus stated its
position: "(I)t would be tragic and contrary to the plain compulsion of
these perspectives, if the Court were to allow itself in deciding this case
to be carried astray by considerations other than the imperatives of
the rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other
departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning
and vigor to the Constitution, by interpreting and construing its
provisions in appropriate cases with the proper parties and by striking
down any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino concurring with
this Court's denial of the motion for reconsideration, succinctly restated
this Court's position on the fundamentals, as follows:
On the premature submission of a partial amendment proposal, with
a "temporary provisional or tentative character": "... a partial
amendment would deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent appraisal of the

issue submitted for their ratification or rejection. ... Then, too, the
submission to a plebiscite of a partial amendment, without adefinite
frame of reference, is fraught with possibilities which may jeopardize
the social fabric. For one thing, it opens the door to wild speculations. It
offers ample opportunities for overzealous leaders and members of
opposing political camps to unduly exaggerate the pros and cons of the
partial amendment proposed. In short, it is apt to breed false hopes and
create wrong impressions. As a consequence, it is bound to unduly
strain the people's faith in the soundness and validity of democratic
processes and institutions.
On the plea to allow submission to the sovereign people of the
"fragmentary and incomplete" proposal, although inconsistent with the
letter and spirit of the Constitution: "The view, has, also, advanced that
the foregoing considerations are not decisive on the issue before Us,
inasmuch as thepeople are sovereign, and the partial amendment
involved in this case is being submitted to them. The issue before Us is
whether or not said partial amendment may be validly submitted to the
people for ratification "in a plebiscite coincide with the local elections in
November 1971," and this particular issue will not be submitted to the
people. What is more, the Constitution does not permit its submission
to the people. The question sought to be settled in the scheduled
plebiscite is whether or not the people are in favor of the reduction of
the voting age.
On a "political" rather than "legalistic" approach: "Is this approach to
the problem too "legalistic?" This term has possible connotations. It
may mean strict adherence to the law, which in the case at bar is
the Supreme Law of the land. On point, suffice it to say that, in
compliance with the specific man of such Supreme Law, the members
of the Supreme Court taken the requisite "oath to support and defend
the Constitution." ... Then, again, the term "legalistic" may be used to
suggest inversely that the somewhat strained interpretation of the
Constitution being urged upon this Court be tolerated or, at least,
overlooked, upon the theory that the partial amendment on voting age
is badly needed and reflects the will of the people, specially the youth.
This course of action favors, in effect, adoption of apolitical approach,
inasmuch as the advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart from the
obvious message of the mass media, and, at times, of the pulpit, the
Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as
well as letterhead of some sectarian educational institutions, generally
stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to
bear heavily upon the Court for a reconsideration of its decision in the
case at bar.
As above stated, however, the wisdom of the amendment and
the popularity thereof are political questions beyond our province. In
fact, respondents and the intervenors originally maintained that We
have no jurisdiction to entertain the petition herein, upon the ground
that the issue therein raised is a political one. Aside from the absence
of authority to pass upon political question, it is obviously improper and
unwise for the bench to develop into such questions owing to the
danger of getting involved in politics, more likely of a partisan nature,
and, hence, of impairing the image and the usefulness of courts of
justice as objective and impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute
a grievous disservice to the people and the very Convention itself.
Indeed, the latter and the Constitution it is in the process of drafting
stand essentially for the Rule of Law. However, as the Supreme Law of
the land, a Constitution would not be worthy of its name, and the
Convention called upon to draft it would be engaged in a futile
undertaking, if we did not exact faithful adherence to the fundamental
tenets set forth in the Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved, consented to or even
overlooked a circumvention of said tenets and provisions, because of
the good intention with which Resolution No. 1 is animated, the Court
would thereby become theJudge of the good or bad intentions of the
Convention and thus be involved in a question essentially political in
nature.
This is confirmed by the plea made in the motions for reconsideration in
favor of the exercise of judicial statesmanship in deciding the present
case. Indeed, "politics" is the word commonly used to epitomize
compromise, even with principles, for the sake of political expediency
or the advancement of the bid for power of a given political party. Upon
the other hand, statesmanship is the expression usually availed of to
refer to high politics or politics on the highest level. In any event,
politics, political approach, political expediency and statesmanship are
generally associated, and often identified, with the dictum that "the
end justifies the means." I earnestly hope that the administration of
justice in this country and the Supreme Court, in particular, will adhere
to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that
"(T)he primary purpose for the submission of the proposed amendment
lowering the voting age to the plebiscite on November 8, 1971 is to
enable the youth 18 to 20 years who comprise more than three (3)
million of our population to participate in the ratification of the new
Constitution in so far as "to allow young people who would be governed
by the Constitution to be given a say on what kind of Constitution they
will have" is a laudable end, ... those urging the vitality and importance
of the proposed constitutional amendment and its approval ahead of

the complete and final draft of the Constitution must seek a valid
solution to achieve it in a manner sanctioned by the amendatory
process ordained by our people in the present Constitution" 41 so that
there may be "submitted, not piece-meal, but by way of complete and
final amendments as an integrated whole (integrated either with the
subsisting Constitution or with the new proposed Constitution)..."
9. The universal validity of the vital constitutional precepts and
principles above-enunciated can hardly be gainsaid. I fail to see the
attempted distinction of restricting their application to proposals for
amendments of particular provisions of the Constitution and not to socalled entirely new Constitutions. Amendments to an existing
Constitution presumably may be only of certain parts or in toto, and in
the latter case would rise to an entirely new Constitution. Where this
Court held in Tolentino that "any amendment of the Constitution is of no
less importance than the whole Constitution itself and perforce must be
conceived and prepared with as much care and deliberation", it would
appeal that the reverse would equally be true; which is to say, that the
adoption of a whole new Constitution would be of no less importance
than any particular amendment and therefore the necessary care and
deliberation as well as the mandatory restrictions and safeguards in the
amending process ordained by the people themselves so that "they
(may) be insulated against precipitate and hasty actions motivated by
more or less passing political moods or fancies" must necessarily
equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the
Constitution for the amending processonly "by approval by a majority of
the votes cast at an election at which the (duly proposed) amendments
are submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of
the body politic", viz, qualified literate voters twenty one years of age
or over with one year's residence in the municipality where they have
registered.
The people, not as yet satisfied, further provided by amendment duly
approved in 1940 in accordance with Article XV, for the creation of
an independent Commission on Elections with "exclusive charge" for
the purpose of "insuring free, orderly and honest elections" and
ascertaining the true will of the electorate and more, as ruled by this
Court in Tolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and provisions
analogous to ours, best defined the uses of the term "people" as a body
politic and "people" in the political sense who are synonymous with the
qualified voters granted the right to vote by the existing Constitution
and who therefore are "the sole organs through which the will of the
body politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have
somewhat varying significations dependent upon the connection in
which it is used. In some connections in the Constitution it is confined to
citizens and means the same as citizens. It excludes aliens. It includes
men, women and children. It comprehends not only the sane,
competent, law-abiding and educated, but also those who are wholly or
in part dependents and charges upon society by reason of immaturity,
mental or moral deficiency or lack of the common essentials of
education. All these persons are secured fundamental guarantees of
the Constitution in life, liberty and property and the pursuit of
happiness, except as these may be limited for the protection of
society."
In the sense of "body politic (as) formed by voluntary association of
individuals" governed by a constitution and common laws in a "social
compact ... for the common good" and in another sense of "people" in a
"practical sense" for "political purposes" it was therein fittingly stated
that in this sense, "people" comprises many who, by reason of want of
years, of capacity or of the educational requirements of Article 20 of the
amendments of the Constitution, can have no voice in any government
and who yet are entitled to all the immunities and protection
established by the Constitution. 'People' in this
aspect is coextensive with the body politic. But it is obvious that
'people' cannot be used with this broad meaning of political
signification. The 'people' in this connection means that part of the
entire body of inhabitants who under the Constitution are intrusted with
the exercise of the sovereign power and the conduct of government.
The 'people' in the Constitution in a practical sense means those who
under the existing Constitution possess the right to exercise the
elective franchise and who, while that instrument remains in force
unchanged, will be the sole organs through which the will of the body
politic can be expressed. 'People' for political purposes must be
considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are
thus the source of political power, their governments, national and
state, have been limited by constitutions, and they have themselves
thereby set bounds to their own power, as against the sudden impulse
of mere majorities." 44
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of thevotes cast at an election at
which the amendments are submitted to the people for their
ratification", it seems obvious as above-stated that "people" as therein
used must be considered synonymous with "qualified voters" as
enfranchised under Article V, section 1 of the Constitution since only

"people" who are qualified voters can exercise the right of suffrage and
cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate
safeguards as ordained by the Constitution and implementing statutes
to ascertain and record the will of the people in free, orderly and honest
elections supervised by the Comelec make it imperative that there be
strict adherence to the constitutional requirements laid down for the
process of amending in toto or in part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain
safeguards for the holding of barrio plebiscites thus: "SEC.
6. Plebiscite. A plebiscite may be held in the barrio when authorized
by a majority vote of the members present in the barrio assembly,
there being a quorum, or when called by at least four members of the
barrio council: Provided, however, That no plebiscite shall be held until
after thirty days from its approval by either body, and such plebiscite
has been given the widest publicity in the barrio, stating the date, time
and place thereof, the questions or issues to be decided, action to be
taken by the voters, and such other information relevant to the holding
of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that
"(A)ll duly registered barrio assembly members qualified to vote may
vote in the plebiscite. Voting procedures may be made either in
writing as in regular elections, and/or declaration by the voters to the
board of election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances" and the
required majority vote is specified: "(F)or taking action on any of the
above enumerated measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of
barrio officials 49 comply with the suffrage qualifications of Article V,
section 1 of the Constitution and provide that "(S)EC. 10. Qualifications
of Voters and Candidates. Every citizen of the Philippines, twenty one
years of age or over, able to read and write, who has been a resident of
the barrio during the six months immediately preceding the
election, duly registered in the list of voters by the barrio secretary,
who is not otherwise disqualified, may vote or be a candidate in the
barrio elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the
mandatory requirements under the above-cited constitutional articles
have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article XVII of
the proposed Constitution itself 51 has been called or held, there cannot
be said to have been a valid ratification.
2. Petitioners raised serious questions as to the veracity and
genuineness of the reports or certificates of results purportedly showing
unaccountable discrepancies in seven figures in just five
provinces 52 between the reports as certified by the Department of
Local Governments and the reports as directly submitted by the
provincial and city executives, which latter reports respondents
disclaimed inter alia as not final and complete or as not
signed; 53 whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the interim
National Assembly provided in Article XVII, section 1 thereof, 54 may be
considered as valid; the allegedly huge and uniform votes reported; and
many others.
3. These questions only serve to justify and show the basic validity of
the universal principle governing written constitutions that proposed
amendments thereto or in replacement thereof may be ratified only in
the particular mode or manner prescribed therein by the people. Under
Article XV, section 1 of our Constitution, amendments thereto may be
ratified only in the one way therein provided, i.e. in an election or
plebiscite held in accordance with law and duly supervised by the
Commission on Elections, and which is participated in only by qualified
and duly registered voters. In this manner, the safeguards provided by
the election code generally assure the true ascertainment of the results
of the vote and interested parties would have an opportunity to thresh
out properly before the Comelec all such questions in pre-proclamation
proceedings.
4. At any rate, unless respondents seriously intend to question the very
statements and pronouncements in Proclamation 1102 itself which
shows on its face, as already stated, that the mandatory amending
process required by the (1935) Constitution was not observed, the
cases at bar need not reach the stage of answering the host of
questions, raised by petitioners against the procedure observed by the
Citizens Assemblies and the reported referendum results since the
purported ratification is rendered nugatory by virtue of such nonobservance.
5. Finally, as to respondents' argument that the President issued
Proclamation 1102 "as "agent" of the Constitutional
Convention" 55 under Resolution No. 5844 approved on November 22,
1973, and "as agent of the Convention the President could devise other
forms of plebiscite to determine the will of the majority vis-a-vis the
ratification of the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not
at all support this contention. On the contrary, the said minutes fully
show that the Convention's proposal and "agency" was that the

President issue a decree precisely calling a plebiscite for the ratification

of the proposed new Constitution on an appropriate date, under the
charge of the Comelec, and with a reasonable period for an information
campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for the
approval of the resolution, the resolution portion of which read as
follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional
Convention propose to President Ferdinand E. Marcos that a decree be
issued calling a plebiscite for the ratification of the proposed New
Constitution on such appropriate date as he shall determine and
providing for the necessary funds therefor, and that copies of this
resolution as approved in plenary session be transmitted to the
President of the Philippines and the Commission on Elections for
implementation."
He suggested that in view of the expected approval of the final draft of
the new Constitution by the end of November 1972 according to the
Convention's timetable, it would be necessary to lay the groundwork for
the appropriate agencies of the government to undertake the necessary
preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution
was unnecessary because section 15, Article XVII on the Transitory
Provision, which had already been approved on second and third
readings, provided that the new constitution should be ratified in a
plebiscite called for the purpose by the incumbent President. Delegate
Duavit replied that the provision referred to did notinclude
the appropriation of funds for the plebiscite and that, moreover, the
resolution was intended to serve formal notice to the President and the
Commission on Elections to initiate the necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a reasonable
period for an information campaign was necessary in order to properly
apprise the people of the implications and significance of the new
charter. Delegate Duavit agreed, adding that this was precisely why the
resolution was modified to give the President the discretion to choose
the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the
President informing him of the adoption of the new Constitution would
not suffice considering that under Section 15 of the Transitory
Provisions, the President would be duty-bound to call a plebiscite for its
ratification. Delegate Duavit replied in the negative, adding that the
resolution was necessary to serve notice to the proper authorities
to prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that
the mechanics for the holding of theplebiscite would be laid down by
the Commission on Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite
could include a partial lifting of martial law in order to allow the people
to assemble peaceably to discuss the new Constitution. Delegate
Duavit suggested that the Committee on Plebiscite and Ratification
could coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The Chair
declared that there was one more interpellant and that a prior
reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was
actually no need for such a resolution in view of the provision of section
15, Article XVII on the Transitory Provisions. Delegate Duavit disagreed,
pointing out that the said provision did not provide for the funds
necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate and proceed to
the period of amendment.
13.1 Floor Leader Montejo stated that there were no reservations to
amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question. Submitted
to a vote, the motion was approved.
Upon request of the Chair, Delegate Duavit restated the resolution for
voting.
14.1. Delegate Ordoez moved for nominal voting. Submitted to a vote,
the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was
approved by a show of hands.57
I, therefore, vote to deny respondents' motion to dismiss and to give
due course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave
emergency, when the legislative branch of the government is unable to
function or its functioning would itself threaten the public safety, the
Chief Executive may promulgate measures legislative in character, for
the successful prosecution of such objectives. For the "President's
power as Commander- in-chief has been transformed from a simple
power of military command to a vast reservoir of indeterminate powers
in time of emergency. ... In other words, the principal canons of

constitutional interpretation are ... set aside so far as concerns both the
scope of the national power and the capacity of the President to gather
unto himself all constitutionally available powers in order the more
effectively to focus them upon the task of the hour." (Corwin, The
President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a
crisis government in this country. In terms of power, crisis government
in a constitutional democracy entails the concentration of governmental
power. "The more complete the separation of powers in a constitutional
system, the more difficult, and yet the more necessary" according to
Rossiter, "will be their fusion in time of crisis... The power of the state in
crisis must not only be concentrated and expanded, it must be freed
from the normal system of constitutional and legal limitations. One of
the basic features of emergency powers is the release of the
government from the paralysis of constitutional restraints" (Rossiter,
Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of
the government is channeled through the person of the Chief Executive.
"Energy in the executive," according to Hamilton, "is essential to the
protection of the community against foreign attacks ... to the protection
of property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of faction, and
of anarchy." (The Federalist, Number 70). "The entire strength of the
nation", said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed.
1092), "may be used to enforce in any part of the land the full and free
exercise of all national powers and the security of all rights entrusted
by the constitution to its care." The marshalling and employment of the
"strength of the nation" are matters for the discretion of the Chief
Executive. The President's powers in time of emergency defy precise
definition since their extent and limitations are largely dependent upon
conditions and circumstances.
2. The power of the President to act decisively in a crisis has been
grounded on the broad conferment upon the Presidency of the
Executive power, with the added specific grant of power under the
"Commander-in-Chief" clause of the constitution. The contours of such
powers have been shaped more by a long line of historical precedents
of Presidential action in times of crisis, rather than judicial
interpretation. Lincoln wedded his powers under the "commander-inchief" clause with his duty "to take care that the laws be faithfully
executed," to justify the series of extraordinary measures which he
took the calling of volunteers for military service, the augmentation
of the regular army and navy, the payment of two million dollars from
unappropriated funds in the Treasury to persons unauthorized to
receive it, the closing of the Post Office to "treasonable
correspondence", the blockade of southern ports, the suspension of the
writ of habeas corpus, the arrest and detention of persons "who were
represented to him" as being engaged in or contemplating "treasonable
practices" all this for the most partwithout the least statutory
authorization. Those actions were justified by the imperatives of his
logic, that the President may, in an emergency thought by him to
require it, partially suspend the constitution. Thus his famous question:
"Are all laws but one to be unexecuted, and the Government itself go to
pieces lest that one be violated?" The actions of Lincoln "assert for the
President", according to Corwin, "an initiative of indefinite scope and
legislative in effect in meeting the domestic aspects of a war
emergency." (Corwin, The President: Office & Powers, p. 280 [1948]).
The facts of the civil war have shown conclusively that in meeting the
domestic problems as a consequence of a great war, an indefinite
power must be attributed to the President to take emergency
measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative
enlargement during the first and second World Wars. From its narrow
concept as an "emergency" in time of war during the Civil War and
World War I, the concept has been expanded in World War II to include
the "emergency" preceding the war and even after it. "The Second
World War" observed Corwin and Koenig, was the First World War writ
large, and the quasi-legislative powers of Franklin Roosevelt as
"Commander-in-Chief in wartime"... burgeoned correspondingly. The
precedents were there to be sure, most of them from the First World
War, but they proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our entrance
into shooting war. This step occurred in September, 1940, when he
handed over fifty so-called overage destroyers to Great Britain. The
truth is, they were not overage, but had been recently reconditioned
and recommissioned. ... Actually, what President Roosevelt did was to
take over for the nonce Congress's power to dispose of property of the
United States (Article IV, Section 3) and to repeal at least two statutes."
(Corwin & Koenig, The Presidency Today, New York University Press,
1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis of
his powers under the "Commander-in-Chief" clause created "offices"
which were copied in lavish scale by President Roosevelt in World War II.
In April 1942, thirty-five "executive agencies" were purely of
Presidential creation. On June 7, 1941 on the basis of his powers as
"Commander-in-Chief", he issued an executive order seizing the North
American Aviation plant of Inglewood, California, where production
stopped as a consequence of a strike. This was justified by the
government as the exercise of presidential power growing out of the

"duty constitutionally and inherently resting upon the President to exert

his civil and military as well as his moral authority to keep the defense
efforts of the United States a going concern" as well as "to obtain
supplies for which Congress has appropriated money, and which it has
directed the President to obtain." On a similar justification, other plants
and industries were taken over by the government. It is true that in
Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96 L.
Ed. 1153, [1952]), the Supreme Court of the United States did not
sustain the claims that the President could, as the Nation's Chief
Executive and Commander-in-Chief of the armed forces, validly order
the seizure of most of the country's steel mills. The Court however did
not face the naked question of the President's power to seize steel
plants in the absence of any congressional enactment or expressions of
policy. The majority of the Court found that this legislative occupation of
the field made untenable the President's claim of authority to seize the
plants as an exercise of inherent executive power or as Commander-inChief. Justice Clark, in his concurrence to the main opinion of the Court,
explicitly asserted that the President does possess, in the absence of
restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The same view was shared
with vague qualification by Justices Frankfurter and Jackson, two of the
concurring Justices. The three dissenting Justices, speaking through
Chief Justice Vinson, apparently went further by quoting with approval a
passage extracted from the brief of the government in the case
of United States vs. Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S.
Ct. 309) where the court sustained the power of the President to order
withdrawals from the public domain not only without Congressional
sanction but even contrary to Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as
an authority to support the view that the President in times of a grave
crisis does not possess a residual power above or in consequence of his
granted powers, to deal with emergencies that he regards as
threatening the national security. The lesson of the Steel Seizure case,
according to Corwin and Koenig, "Unquestionably ... tends to
supplement presidential emergency power to adopt temporary remedial
legislation when Congress has been, in the judgment of the President,
unduly remiss in taking cognizance of and acting on a given situation."
(Corwin and Koenig, The Presidency Today, New York University Press,
1956).
The accumulation of precedents has thus built up the presidential
power under emergency conditions to "dimensions of executive
prerogative as described by John Locke, of a power to wit, to fill needed
gaps in the law, or even to supersede it so far as may be requisite to
realize the fundamental law of nature and government, namely, that as
much as may be all the members of society are to be preserved."
(Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably
argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these
measures were considered indispensable to effect the desired reforms
at the shortest time possible and hasten the restoration of normalcy? It
is unavailing for petitioners to contend that we are not faced by an
actual "shooting war" for today's concept of the emergency which
justified the exercise of those powers has of necessity been expanded
to meet the exigencies of new dangers and crisis that directly threaten
the nation's continued and constitutional existence. For as Corwin
observed: "... today the concept of 'war' as a special type of emergency
warranting the realization of constitutional limitations tends to spread,
as it were, in both directions, so that there is not only "the war before
the war," but the 'war after the war.' Indeed, in the economic crisis from
which the New Deal may be said to have issued, the nation was
confronted in the opinion of the late President with an 'emergency
greater than war'; and in sustaining certain of the New Deal measures
the Court invoked the justification of 'emergency.' In the final result
constitutional practices of wartime have moulded the Constitution to
greater or less extent for peacetime as well, seem likely to do so still
more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p.
318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional
government is resisted openly by large numbers of citizens who are
engaged in violent insurrection against enforcement of its laws or are
bent on capturing it illegally or destroying it altogether. The third crisis,
one recognized particularly in modern times as sanctioning emergency
action by constitutional governments, iseconomic depression. The
economic troubles which plagued all the countries of the world in the
early thirties involved governmental methods of an unquestionably
dictatorial character in many democracies. It was thereby
acknowledged that an economic existence as a war or a rebellion. And
these are not the only cases which have justified extraordinary
governmental action in nations like the United States. Fire, flood,
drought, earthquake, riots, great strikes have all been dealt with by
unusual and of dictatorial methods. Wars are not won by debating
societies, rebellions are not suppressed by judicial injunctions,
reemployment of twelve million jobless citizens will not be effected
through a scrupulous regard for the tenets of free enterprise, hardships
caused by the eruptions of nature cannot be mitigated letting nature
take its course. The Civil War, the depression of 1933 and the recent
global conflict were not and could not have been successfully resolved

by governments similar to those of James Buchanan, William Howard

Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship Crisis of
Government in the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the
referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who are
allowed to participate, under the supervision of the Commission on
Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the 1935
Constitution provides the method for the revision of the constitution,
and automatically apply in the final approval of such proposed new
Constitution the provisions of the election law and those of Article V and
X of the old Constitution. We search in vain for any provision in the old
charter specifically providing for such procedure in the case of a
total revision or a rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment of an
existing constitution. Revision may involve a rewriting of
the whole constitution. The act of amending a constitution, on the other
hand, envisages a change of only specific provisions. The intention of
an act to amend is not the change of the entire constitution but only
theimprovement of specific parts of the existing constitution of the
addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times. 1 The 1973 Constitution is not a
mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and economic
concepts.
According to an eminent authority on Political Law, "The Constitution of
the Philippines and that of the United States expressly provide merely
for methods of amendment. They are silent on the subject of revision.
But this is not a fatal omission. There is nothing that can legally prevent
a convention from actually revising the Constitution of the Philippines or
of the United States even were such conventions called merely for the
purpose of proposing and submitting amendments to the people. For in
the final analysis, it is the approval of the people that gives validity to
any proposal of amendment or revision." (Sinco, Philippine Political Law,
p. 49).
Since the 1935 Constitution does not specifically provide for the
method or procedure for the revision or for the approval of a new
constitution, should it now be held, that the people have placed such
restrictions on themselves that they are not disabled from exercising
their right as the ultimate source of political power from changing the
old constitution which, in their view, was not responsive to their needs
and in adopting a new charter of government to enable them to rid
themselves from the shackles of traditional norms and to pursue with
new dynamism the realization of their true longings and aspirations,
except in the manner and form provided by Congress for previous
plebiscites? Was not the expansion of the base of political participation,
by the inclusion of the youth in the process of ratification who after all
constitute the preponderant majority more in accord with the spirit and
philosophy of the constitution that political power is inherent in the
people collectively? As clearly expounded by Justice Makasiar, in his
opinion, in all the cases cited where the Courts held that the submission
of the proposed amendment was illegal due to the absence of
substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so
detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election
and other definite standards, from which the court could safely
ascertain whether or not the submission was in accordance with the
Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied
upon in one of the dissenting opinions involved in the application of the
provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the Constitution may be
amended or revised. 2 This is not true with our Constitution. In the case
of revision there are no "standards meet for judicial judgment." 3
The framers of our Constitution were free to provide in the Constitution
the method or procedure for the revision or rewriting of the entire
constitution, and if such was their intention, they could and should have
so provided. Precedents were not wanting. The constitutions of the
various states of the American Union did provide for procedures for
their amendment and methods for their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise,
amend, remodel or rewrite the 1935 Charter. To declare what the law is,
or has been, is a judicial power, but to declare what the law shall be is
not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided
the method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature,
but through a Convention expressly chosen for that purpose. The
Convention as an independent and sovereign body has drafted not an
amendment but a completely new Constitution, which decided to
submit to the people for approval, not through an act of Congress, but
by means of decrees to be promulgated by the President. In view of the
inability of Congress to act, it was within the constitutional powers of
the President, either as agent of the Constitutional Convention, or under
his authority under martial law, to promulgate the necessary measures
for the ratification of the proposed new Constitution. The adoption the

new Charter was considered as a necessary basis for all the reforms set
in motion under the new society, to root out the causes of unrest. The
imperatives of the emergency underscored the urgency of its adoption.
The people in accepting such procedure and in voting overwhelmingly
for the approval of the new Constitution have, in effect, ratified the
method and procedure taken. "When the people adopt completely
revised or new constitution," said the Court in Wheeler v. Board of
Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the
people, and only the fiat of the people, can breathe life into a
constitution."
This has to be so because, in our political system, all political power is
inherent in the people and free governments are founded on their
authority and instituted for their benefit. Thus Section 1 of Article II of
the 1935 Constitution declares that: "Sovereignty resides in the people
and all government authority emanate from them." Evidently the
term people refers to the entire citizenry and not merely to
the electorate, for the latter is only a fraction of the people and is only
an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority
to nullify an entire Constitution that is already effective as it has been
accepted and acquiesced in by the people as shown by their
compliance with the decree promulgated thereunder, their cooperation
in its implementation, and is now maintained by the Government that is
in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced
from their acts of conformity, because under a regime of martial law the
people are bound to obey and act in conformity with the orders of the
President, and has absolutely no other choice. The flaw of this
argument lies in its application of a mere theoretical assumption based
on the experiences of other nations on an entirely different factual
setting. Such an assumption flounders on the rock of reality. It is true
that as a general rule martial law is the use of military forces to perform
the functions of civil government. Some courts have viewed it as a
military regime which can be imposed in emergency situations. In other
words, martial rule exists when the military rises superior to the civil
power in the exercise of some or all the functions of government. Such
is not the case in this country. The government functions thru its civilian
officials. The supremacy of the civil over the military authority is
manifest. Except for the imposition of curfew hours and other
restrictions required for the security of the State, the people are free to
pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law
in other countries. "Upon the other hand the masses of our people have
accepted it, because of its manifold blessings. The once downtrodden
rice tenant has at long last been emancipated a consummation
devoutly wished by every Philippine President since the 1930's. The
laborer now holds his head high because his rights are amply protected
and respected." * A new sense of discipline has swiftly spread beyond
the corridors of government into the social order. Responding to the
challenges of the New Society, the people have turned in half a million
loose firearms, paid their taxes on undeclared goods and income in
unprecedented numbers and amount, lent their labors in massive
cooperation in land reform, in the repair of dikes, irrigation ditches,
roads and bridges, in reforestation, in the physical transformation of the
environment to make ours a cleaner and greener land. "The entire
country is turning into one vast garden growing food for the body, for
thought and for the soul." * More important the common man has at
long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using
the power of presidential decree under martial law for this purpose. He
has zeroed in on areas which have been widely recognized as prime
sources of the nation's difficulties land tenancy, official corruption,
tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets ... there is marked public support for his leadership..."
(Bulletin Today, March 3 and 4, 1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in
the April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was
discouraged by the failure of legislators to approve urgently needed
reforms. He found his second term further frustrated by spread riots, a
Maoist uprising in Luzon and a much more serious Moslem insurrection
in the southern islands from Mindanao across the Sulu archipelago to
the frontier regions of Malaysia and Indonesia. Manila claims this war is
Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no
promise as to when he will relinquish them. But, while fettering a free
press, terminating Congress and locking up some opponents (many of
whom were later amnestied), he has hauled the Philippines out of
stagnation.
Sharecropping is being ended as more than three million acres of arable
land are redistributed with state funds. New roads have been started.
The educational system is undergoing revision, a corruption is
diminished. In non-communist Asia it is virtually impossible to wholly
end it and this disagreeable phenomenon still reaches very high.

Mr. Marcos, an imaginative, gifted man, hopes to reshape society by

creating an agrarian middle-class to replace the archaic sharecropperabsentee landlord relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic Church. He has
started labor reforms and increased wages. (Daily Express, April 15,
1973)
As explained in this writer's opinion of April 24, 1973 on the
"Constancia" and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the
old Constitution loses its effectiveness and the new Constitution has
become effective, the acts that appear with the subjective meaning of
creating or applying legal norms are no longer interpreted by
presupposing the old basic norm, but by presupposing the new one. The
statutes issued under the old Constitution and not taken over are no
longer regarded as valid, and the organs authorized by the old
Constitution no longer competent." (Kelsen, Pure Theory of Law,
[1967].)
The essentially political nature of the question is at once made manifest
by understanding that in the final analysis, what is assailed is not
merely the validity of Proclamation No. 1102 of the President, which is
merely declaratory of the fact of approval or ratification, but the
legitimacy of the government. It is addressed more to the framework
and political character of this Government which now functions under
the new Charter. It seeks to nullify a Constitution that is
already effective.
In such a situation, We do not see how the question posed by
petitioners could be judicially decided. "Judicial power presupposes an
established government capable of enacting laws and enforcing their
execution, and of appointing judges to expound and administer them. If
it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial power."
(Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has
been effected through political action, the Court whose existence is
affected by such change is, in the words of Mr. Melville Fuller Weston,
"precluded from passing upon the fact of change by a logical difficulty
which is not to be surmounted." 5 Such change in the organic law
relates to the existence of a prior point in the Court's "chain of title" to
its authority and "does not relate merely to a question of the horizontal
distribution of powers." 6 It involves in essence a matter which "the
sovereign has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra
governmental action." 7
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker
v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of
controversies which do not lend themselves to judicial standards and
judicial remedies. To classify the various instances as "political
questions" is rather a form of stating this conclusion than revealing of
analysis ... The crux of the matter is that courts are not fit instruments
of decision where what is essentially at stake is the composition of
those large contests of policy traditionally fought out in non-judicial
forums, by which governments and the actions of governments are
made and unmade."
The diversity of views contained in the opinions of the members of this
Court, in the cases at bar, cannot be a case on "right" or "wrong" views
of the Constitution. It is one of attitudes and values. For there is
scarcely any principle, authority or interpretation which has not been
countered by the opposite. At bottom, it is the degree of one's
faith in the nation's leadership and in the maturity of judgment of our
people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the
conclusion of this Court in its judgment of March question becomes
wholly moot except for this consideration, that, when the judges as
individuals or as a body of individuals come to decide which king or
which constitution they will support and assert to represent, it may
often be good judgment for them to follow the lead of the men who as a
practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more
directly in touch with popular sentiment. If, however, the judges hold
too strong views of their own to be able to take this course, they may
follow their own leads at their own hazard. No question of law is
involved. (Political Questions, 38 Harvard Law Review [1924-25], pp.
305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be
proposed by a two-thirds vote of each house of the legislature. The
secretary of state shall prepare a ballot title and proposition
summarizing each proposed amendment, and shall place them on the
ballot for the next statewide election. If a majority of the votes cast on
the proposition favor the amendment, it becomes effective thirty days
after the certification of the election returns by the secretary of state.

Sec. 2. Convention. The legislature may call constitutional conventions

at any time.
Sec. 3. Call by referendum. If during any ten-year period a
constitutional convention has not been held, the secretary of state shall
place on the ballot for the next general election the question: "Shall
there be a Constitutional Convention?" If a majority of the votes cast on
the question are in the negative, the question need not be placed on
the ballot until the end of the next ten-year period. If a majority of the
votes cast on the question are in the affirmative, delegates to the
convention shall be chosen at the next regular statewide election,
unless the legislature provides for the election of the election delegates
at a special election. The secretary of state shall issue the call for the
convention. Unless other provisions have been made by law, the call
shall conform as nearly as possible to the act calling the Alaska
Constitutional Convention of 1955, including, but not limited to, number
of members, districts, election and certification of delegates, and
submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to
amend or revise the constitution, subject only to ratification by the
people. No call for a constitutional convention shall limit these powers
of the convention.
2. California (1879) Art. XVIII. Amending and Revising the
Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to
this Constitution may be proposed in the Senate or Assembly, and if
two-thirds of all the members elected to each of the houses shall vote
in favor thereof, such proposed amendment or amendments shall be
entered in their Journals, with the yeas and nays taken thereon; and it
shall be the duty of the Legislature to submit such proposed
amendment or amendments to the people in such manner, and at such
time, and after such publication as may be deemed expedient. Should
more amendments than one be submitted at the same election they
shall be so prepared and distinguished, by numbers or otherwise, that
each can be voted on separately. If the people shall approve and ratify
such amendment or amendments, or any of them, by a majority of the
qualified electors voting thereon such amendment or amendments shall
become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members
elected to each branch of the Legislature shall deem it necessary to
revise this Constitution, they shall recommend to the electors to vote at
the next general for or against a Convention for that purpose, and if a
majority of the electors voting at such election on the proposition for a
Convention shall vote in favor thereof, the Legislature shall, at its next
session, provide by law for calling the same. The Convention shall
consist of a number of delegates not to exceed that of both branches of
the Legislature, who shall be chosen in the same manner, and have the
same qualifications, as Members of the Legislature. The delegates so
elected shall meet within three months after their election at such place
as the Legislature may direct. At a special election to be provided for by
law, the Constitution that may be agreed upon by such
Convention shall be submitted to the people for their ratification or
rejection, in such manner as the Convention may determine. The
returns of such election shall, in such manner as the Convention shall
direct, be certified to the Executive of the State, who shall call to his
assistance the Controller, Treasurer, and Secretary of State, and
compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may
have been ratified by a majority of all the votes cast at such special
election, to be the Constitution of the State of California.
3. Colorado (1876) Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly
may at any time be a vote of two-thirds of the members elected to each
house, recommend to the electors of the state, to vote at the next
general election for or against a convention to revise, alter
and amend this constitution; and if a majority of those voting on the
question shall declare in favor of such convention, the general
assembly shall, at the next session, provide for the calling thereof. The
number of members of the convention shall be twice that of the senate
and they shall be elected in the same manner, at the same places, and
in the same districts. The general assembly shall, in the act calling the
convention, designate the day, hour and place of its meeting; fix the
pay of its members and officers, and provide for the payment of the
same, together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution
of the United States, and of the state of Colorado, and to faithfully
discharge their duties as members of the convention. The qualifications
of members shall be the same as of members of the senate; and
vacancies occurring shall be filled in the manner provided for filling
vacancies in the general assembly. Said convention shall meet within
three months after such election and prepare 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
than two nor more than six months after adjournment thereof; and
unless so submitted and approved by a majority of the electors voting
at the election, no such revision, alteration or amendment shall take
effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or
amendments to this constitution may be proposed in either house of
the general assembly, and if the same shall be voted for by two-thirds

of all the members elected to each house, such proposed amendment

or amendments, together with the ayes and noes of each house hereon,
shall be entered in full on their respective journals; the proposed
amendment or amendments shall be published with the laws of that
session of the general assembly, and the secretary of state shall also
cause the said amendment or amendments to be published in full in not
more than one newspaper of general circulation in each county, for four
successive weeks previous to the next general election for members of
the general assembly; and at said election the said amendment or
amendments shall be submitted to the qualifiedelectors of the state for
their approval or rejection, and such as are approved by a majority of
those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any
general election, each of said amendments shall be voted upon
separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general
assembly shall have no power to propose amendments to more than
six articles of this constitution at the same session.
4. Delaware (1897) Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;
procedure. Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same
shall be agreed to by two-thirds of all the members elected to each
House, such proposed amendment or amendments shall be entered on
their journals, with the yeas and nays taken thereon, and the Secretary
of State shall cause such proposed amendment or amendments to be
published three months before the next general election in at least
three newspapers in each County in which such newspaper shall be
published; and if in the General Assembly next after the said election
such proposed amendment or amendments shall upon yea and nay
vote be agreed to by two-thirds of all the members elected to each
House, the same shall thereupon become part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of
delegates; quorum; powers and duties; vacancies. The General
Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the qualified
electors of the State at the general election next thereafter the
question, "Shall there be a Convention to revise the Constitution and
amend the same?;" and upon such submission, if a majority of those
voting on said question shall decide in favor of a Convention for such
purpose, the General Assembly at its next session shall provide for the
election of delegates to such convention at the next general election.
Such Convention shall be composed of forty-one delegates, one of
whom shall be chosen from each Representative District by the
qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by
the qualified electors thereof respectively. The delegates so chosen
shall convene at the Capital of the State on the first Tuesday in
September next after their election. Every delegate shall receive for his
services such compensation as shall be provided by law. A majority of
the Convention shall constitute a quorum for the transaction of
business. The Convention shall have the power to appoint such officers,
employees and assistants as it may be deem necessary, and fix their
compensation, and provide for the printing of its documents, journals,
debates and proceedings. The Convention shall determine the rules of
its proceedings, and be the judge of the elections, returns and
qualifications of its members. Whenever there shall be a vacancy in the
office of delegate from any district or county by reason of failure to
elect, ineligibility, death, resignation or otherwise, a writ of election to
fill such vacancy shall be issued by the Governor, and such vacancy
shall be filled by the qualified electors of such district or county.
5. Florida (1887) Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the
Legislature, at any regular session, or at any special or extra-ordinary
session thereof called for such purpose either in the governor's original
call or any amendment thereof, may propose the revision or
amendment of any portion or portions of this Constitution. Any such
revision or amendment may relate to one subject or any number of
subjects, but no amendment shall consist of more than one revised
article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of
the members elected to each house, it shall be entered upon their
respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two
times, one publication to be made not earlier than ten weeks and the
other not later than six weeks, immediately preceding the election at
which the same is to be voted upon, and thereupon submitted to the
electors of the State for approval or rejection at the next general
election, provided, however, that such revision or amendment may be
submitted for approval or rejection in a special election under the
conditions described in and in the manner provided by Section 3 of
Article XVII of the Constitution. If a majority of the electors voting upon
the amendment adopt such amendment the same shall become a part
of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by
a vote of two-thirds of all the members of both Houses, shall determine
that a revision of this Constitution is necessary, such determination
shall be entered upon their respective Journals, with yea's and nay's
thereon. Notice of said action shall be published weekly in one
newspaper in every county in which a newspaper is published, for three

months preceding the next general election of Representatives, and in

those countries where no newspaper is published, notice shall be given
by posting at the several polling precincts in such counties for six
weeks next preceding said election. The electors at said election may
vote for or against the revision in question. If a majority of the electors
so voting be in favor of revision, the Legislature chosen at such election
shall provide by law for a Convention to revise the Constitution, said
Convention to be held within six months after the passage of such law.
The Convention shall consist of a number equal to the membership of
the House of Representatives, and shall be apportioned among the
several counties in the same manner as members of said House.
6. Idaho (1890) Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislature, and if the same shall be agreed to by two-thirds of all
the members of each of the two houses, voting separately, such
proposed amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors
of the state at the next general election, and cause the same to be
published without delay for at least six consecutive weeks, prior to said
election, in not less than one newspaper of the general circulation
published in each county; and if a majority of the electors shall ratify
the same, such amendment or amendments shall become a part of this
Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of
the members elected to each branch of the legislature shall deem it
necessary to call a convention to revise or amend this Constitution,
they shall recommend to the electors to vote at the next general
election, for or against a convention, and if a majority of all the electors
voting at said election shall have voted for a convention, the legislature
shall at the next session provide by law for calling the same; and such
convention shall consist of a number of members, not less than double
the number of the most numerous branch of the legislature.
7. Iowa (1857) Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one
thousand eight hundred and seventy, and in each tenth year thereafter,
and also at such times as the General Assembly may, by law, provide,
the question, "Shall there be a Convention to revise the Constitution,
and amend the same?" shall be decided by the electors qualified to
vote for members of the General Assembly; and in case a majority of
the electors so qualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the
General Assembly, at its next session, shall provide by law for the
election of delegates to such Convention.
8. Michigan (1909) Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature;
submission to electors. Any amendment or amendments to this
constitution may be proposed in the senate or house of representatives.
If the same shall be agreed to by 2/3 of the members elected to each
house, such amendment or amendments shall be entered on the
journals, respectively, with the yeas and nays taken thereon; and the
same shall be submitted to the electors at the next spring or autumn
election thereafter, as the legislature shall direct; and, if a majority of
the electors qualified to vote for members of the legislature voting
thereon shall ratify and approve such amendment or amendments, the
same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring
Election to be held in the year 1961, in each sixteenth year thereafter
and at such times as may be provided by law, the question of a General
Revision of the Constitution shall be submitted to the Electors qualified
to vote for members of the Legislature. In case a majority of the
Electors voting on the question shall decide in favor of a Convention for
such purpose, at an Election to be held not later than four months after
the Proposal shall have been certified as approved, the Electors of each
House of Representatives District as then organized shall Elect One
Delegate for each Electors of each Senatorial District as then organized
shall Elect One Delegate for each State Senator to which the District is
entitled. The Delegates so elected shall convene at the Capital City on
the First Tuesday in October next succeeding such election, and shall
continue their sessions until the business of the convention shall be
completed. A majority of the delegates elected shall constitute a
quorum for the transaction of business. ... Noproposed
constitution or amendment adopted by such convention shall be
submitted to the electors for approval as hereinafter provided unless by
the assent of a majority of all the delegates elected to the convention,
the yeas and nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention shall be
submitted to the qualified electors in the manner provided by such
convention on the first Monday in April following the final adjournment
of the convention; but, in case an interval of at least 90 days shall not
intervene between such final adjournment and the date of such
election. Upon the approval of such constitution or amendments by a
majority of the qualified electors voting thereon such constitution or
amendments shall take effect on the first day of January following the
approval thereof.
9. Minnesota (1857) Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting
makes amendment valid. Whenever a majority of both houses of the
legislature shall deem it necessary to alter or amend this Constitution,

they may proposed such alterations or amendments, which proposed

amendments shall be published with the laws which have been passed
at the same session, and said amendments shall be submitted to the
people for their approval or rejection at any general election, and if it
shall appear, in a manner to be provided by law, that a majority of all
the electors voting at said election shall have voted for and ratified
such alterations or amendments, the same shall be valid to all intents
and purposes as a part of this Constitution. If two or more alterations
or amendments shall be submitted at the same time, it shall be so
regulated that the voters shall vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the members
elected to each branch of the legislature shall think it necessary to call
a convention to revise this Constitution, they shall recommend to the
electors to vote at the next general election for members of the
legislature, for or against a convention; and if a majority of all the
electors voting at said election shall have voted for a convention, the
legislature shall, at their next session, provide by law for calling the
same. The convention shall consist of as many members as the House
of Representatives, who shall be chosen in the same manner, and shall
meet within three months after their election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at
convention. Any convention called to revise this constitution shall
submit any revision thereof by said convention to the people of the
State of Minnesota for their approval or rejection at the next
general election held not less than 90 days after the adoption of
such revision, and, if it shall appear in the manner provided by law that
three-fifths of all the electors voting on the question shall have voted
for and ratified such revision, the same shall constitute a new
constitution of the State of Minnesota. Without such submission and
ratification, said revision shall be of no force or effect. Section 9 of
Article IV of the Constitution shall not apply to election to the
convention.
10. Nevada (1864) Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed
amendment or amendments shall be entered on their respective
journals, with the Yeas and Nays taken thereon, and referred to the
Legislature then next to be chosen, and shall be published for three
months next preceding the time of making such choice. And if in the
Legislature next chosen as aforesaid, such proposed amendment or
amendments shall be agreed to by a majority of all the members
elected to each house, then it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people, in
such manner and at such time as the Legislature shall prescribe; and if
the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the
Legislature voting thereon, such amendment or amendments shall
become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time
the Legislature by a vote of two-thirds of the Members elected to each
house, shall determine that it is necessary to cause a revision of this
entire Constitution they shall recommend to the electors at the next
election for Members of the Legislature, to vote for or against a
convention, and if it shall appear that a majority of the electors voting
at such election, shall have voted in favor of calling a Convention, the
Legislature shall, at its next session provide by law for calling a
Convention to be holden within six months after the passage of such
law, and such Convention shall consist of a number of Members not less
that of both branches of the legislature. In determining what is a
majority of the electors voting such election, reference shall be had to
the highest number of vote cast at such election for the candidates of
any office or on any question.
11. New Hamspire (1784)
Art. 99. Revision of constitution provided for. It shall be the duty of the
selectmen, and assessors, of the several towns and places in this state,
in warning the first annual meetings for the choice of senators, after the
expiration of seven years from the adoption of this constitution, as
amended, to insert expressly in the warrant this purpose, among the
others for the meeting, to wit, to take the sense of the qualified voters
on the subject of a revision of the constitution; and, the meeting being
warned accordingly, and not otherwise, the moderator shall take the
sense of the qualified voters present as to the necessity of a revision;
and a return of the number of votes for and against such necessity,
shall be made by the clerk sealed up, and directed to the general court
at their then next session; and if, it shall appear to the general court by
such return, that the sense of the people of the state has taken, and
that, in the opinion of the majority of the qualified voters in the state,
present and voting at said meetings, there is a necessity for
a revision of the constitution, it shall be the duty of the general court to
call a convention for that purpose, otherwise the general court shall
direct the sense of the people to be taken, and then proceed in the
manner before mentioned. The delegates to be chosen in the same
manner, and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution, before
the same shall be laid before the towns and unincorporated places, and
approved by two thirds of the qualified voters present and voting on the
subject.
12. Oklahoma (1907) Art. XXIV. Constitutional Amendments.

Sec. 1. Amendments proposed by legislature; a submission to vote.

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

and nays taken thereon; and the Legislature shall cause the same to be
published in at least one newspaper in every county of the State, where
a newspaper is published, for two months immediately preceding the
next general election, at which time the said amendment or
amendments shall be submitted to the electors of the State, for their
approval or rejection, and if a majority of the electors voting thereon
shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote
on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds
of the members, elected to each branch of the Legislature, shall deem
it necessary to call a convention to revise or amend this Constitution,
they shall recommend to the electors to vote at the next general
election, for or against a convention, and, if a majority of all the
electors, voting at such election, shall vote for a convention. The
Legislature, at its next session, shall provide by law for calling the
same. The convention shall consist of not less than the number of
members in both branches of the Legislature.
15. Wyoming (1890) Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to
this Constitution may be proposed in either branch of the legislature,
and, if the same shall be agreed to by two-thirds of all the members of
the two houses, voting separately, such proposed amendment or

amendments shall, with the yeas and nays thereon, be entered on their
journals, and it shall be the duty of the legislature to submit such
amendment or amendments to the electors of the state at the next
general election, in at least one newspaper of general circulation,
published in each county, and if a majority of the electors shall ratify
the same, such amendment or amendments shall become a part of this
constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they
shall be submitted in such manner that the electors shall vote for or
against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of
the members elected to each branch of the legislature shall deem it
necessary to call a convention to revise or amend this constitution, they
shall recommend to the electors to vote at the next general election for
or against a convention, and if a majority of all the electors voting at
such election shall have voted for a convention, the legislature shall at
the next session provide by a law for calling the same; and such
convention shall consist of a number of members, not less than double
that of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention
shall have no validity until it has been submitted to and adopted by the
people.