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Executive SecretaryFacts:
Justice Barredo qualified his vote, stating that "(A)s to whether or not the
1973 Constitution hasbeen validly ratified pursuant to Article XV, I still maintain that in
the light of traditional conceptsregarding 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 therequirements thereof. In view,
however, of the fact that I have no means of refusing to recognizeas a judge that factually
there was voting and that the majority of the votes were for consideringas approved the 1973
Constitution without the necessity of the usual form of plebiscite followedin past
ratifications, I am constrained to hold that, in the political sense, if not in the orthodoxlegal sense,
the people may be deemed to have cast their favorable votes in the belief that indoing
so they did the part required of them by Article XV, hence, it may be said that in
itspolitical aspect, which is what counts most, after all, said Article has been
substantially compliedwith, 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 requirementsfor valid ratification.
Third Issue
On the third question of acquiescence by the Filipino people in the aforementioned
proposedConstitution, 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 nofree 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 MartialLaw.Justice
Fernando states that "(I)f it is conceded that the doctrine stated in some
Americandecisions to the effect that independently of the validity of the ratification, a new
Constitutiononce accepted acquiesced in by the people must be accorded recognition by
the Court, I am notat 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 theabsence of the freedom of debate that is a concomitant feature of martial
law."
Three (3) members of the Court express their lack of knowledge and/or competence to
rule onthe question. Justices Makalintal and Castro are joined by Justice Teehankee
in their statementthat "Under a regime of martial law, with the free expression of
opinions through the usualmedia vehicle restricted, (they) have no means of knowing, to
the point of judicial certainty,whether the people have accepted the Constitution."
Fourth Issue
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
. JusticeMakalintal and Castro so voted on the strength of their view that "(T)he effectivity
of the saidConstitution, in the final analysis, is the basic and ultimate question posed by
these cases toresolve which considerations other than judicial, and therefore beyond
the competence of thisCourt, are relevant and unavoidable."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.
Fifth Issue
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra holdthat it is in force by virtue of the people's acceptance thereof;Four (4)
members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankeecast no vote thereon on the premise stated in their votes on the third
question that they couldnot state with judicial certainty whether the people have
accepted or not accepted theConstitution; andTwo (2) members of the Court, namely,
Justice Zaldivar and myself voted that the Constitutionproposed by the 1971
Constitutional Convention is not in force; with the result that there are notenough 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 Justiceand Justices Zaldivar, Fernando and Teehankee,
all the aforementioned cases are herebydismissed.
This being the vote of the majority, there is no further judicial obstacle to the
newConstitution being considered in force and effect.
It is so ordered.