Bafba

EN BANC
[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. TAÑADA , 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 ESTRADA-
KALAW , 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;
CONSTANCIO E. CASTAÑEDA, in his capacity as Secretary of
General Services; Senator GIL J. PUYAT, in his capacity as
President of the Senate; and Senator JOSE ROY, in his capacity as
President Pro Tempore of the Senate , respondents.
[G.R. No. L-36236. March 31, 1973.]
EDDIE B. MONTECLARO, [personally and in his capacity 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 , respondent.
[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 SECRETARY OF NATIONAL DEFENSE, THE
CD Technologies Asia, Inc. 2018 cdasiaonline.com
HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL , respondents.
Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada & Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, 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 & Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Solicitor General Estelito P. Mendoza, Solicitor Vicente V . Mendoza and Solicitor
Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION , J : p
The above entitled ve (5) cases are a sequel of cases G.R. Nos. L-35925, L-
35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979,
decided on January 22, 1973, to which We will hereafter refer collectively plebiscite
cases.
Background of the Plebiscite Cases

The factual setting thereof is set forth in the decision 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 rati cation 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 rati cation or rejection of the
Proposed Constitution on January 15, 1973.
"Soon after, or on December 7, 1972, Charito Planas led, 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 sufficient time to inform the people of the contents thereof.'
"Substantially identical actions were led, on December 8, 1972, by Pablo C.

Sanidad against the Commission on Elections (Case G.R. No. L-35929); on
December 11, 1972, by Gerardo Roxas, et al., against the Commission on
Elections, 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 A.
Ordoñez, 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 le 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 led 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 rati cation 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 t 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 o cially. 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
led 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 proposed new Constitution and
when (the tentative new dates given following postponement of the
plebiscite from the original date of January 15 are February 19 and March
5);
"[4]The opening of the regular session 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 one more question would be
added to the four (4) questions previously announced, and that the forms of the
questions 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 is running the affairs of
the government?" [Bulletin Today, January 10, 1973; additional question
italics.]
'11.That on January 11, 1973, it was reported that six (6) more questions would
be submitted to the so called 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; italics 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 citizen 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 Constitution.
If the Citizens Assemblies approve of the 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 rm 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 becalled 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 o cials
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 See. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer
that the proposed 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' led by
the petitioners in L-35949, 'Gerardo Roxas, et al, v. Commission on Elections, et
al.,' and L-35942, 'Sedfrey Ordoñez, 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 that 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 led 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 Roño; the Department of
Agrarian Reforms and its head, Secretary Conrado Estrella; the National
Rati cation Coordinating Committee and its Chairman, Guillermo de Vega;
their deputies, subordinates and substitutes, and all other o cials and
persons who may be assigned such task, from collecting, certifying, and
announcing and reporting to the President or other o cials 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
Roño; the Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Rati cation 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 rati cation 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 rati cation, are elections at which only
quali ed 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
quali cations or lack thereof, as prescribed in the Election
Code;
[b]Elections or plebiscites for the rati cation 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
rati cation 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 su cient 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 o cials 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 o cials 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 o cials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion, can lawfully he 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
o cials 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 o cials 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 so-
called Citizens' Assemblies, irreparable damage will be caused to the
Republic of the Philippines, the Filipino people, the cause of freedom and
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 con ict 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 rati ed 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 rati ed 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 le ' le 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 rati cation 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, fteen 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 ve

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
ninety- ve (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
rati ed 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 1 7 th 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 for Our 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 of a rmative 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' as 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
repugnance 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 rati cation 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 unquali edly that the Proposed

Constitution has not been rati ed 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 rati ed 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
a rmative, 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 le 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 led Case G.R. No. L-
36142 against the Executive Secretary and the Secretaries of National Defense, Justice
and Finance, to restrain said respondents "and their subordinates or agents, from
implementing any of the provisions of the proposed Constitution not found in the
present Constitution' — referring to that of 1935. The petition therein, led by Josue
Javellana, as a "Filipino citizen, and a quali ed 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
rati cation 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 led, on January 23, 1973, by Vidal Tan, J. Antonio Araneta,
Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M.
Tañada against the Executive Secretary, the Secretaries of Finance Justice, Land
Reform, and National Defense, the Auditor General, 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, 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 Estrada-Kalaw, the rst as
"duly elected Senator and Minority Floor Leader of the Senate," and the others as "duly
elected members" thereof, led Case G.R. No. L-36165, against the Executive Secretary,
the Secretary of 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 o ce of three (3) of
the aforementioned petitioners 8 would expire en 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 the 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 prevent from using the Senate Session Hall,
the same having be closed by the authorities in physical possession and control of the
Legislative Building'; that "(a)t about 5:00 to 6:00 P.M. of 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
were 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 "are ready and willing to perform their duties as duly elected members of
the Senate of the Philippines," but respondents 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 premises in the Congress of the Philippines Building . . . are occupied
by and are under the physical control of the elements of military organizations under
the direction of said respondents"; that, as per "o cial reports, the Department of
General Services . . . is now the civilian agent 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, 197 ', 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 rati cation 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 o cers 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
rati cation of the 1972 (1973) Constitution "is illegal, unconstitutional and void and . . .
can not have superseded and revoked the 1935 Constitution," for the reasons speci ed
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
o ce 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 speci cally 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 the
respondents Executive Secretary, the Secretary of National Defense, the Chief of Staff
of the Armed Forces of the Philippines, and the . . . Secretary of General Services, 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 "after hearing,
judgment be rendered declaring null and void Proclamation No. 1102 . . . and any order,
decree, or proclamation having the same import and objective, issuing the writs of
prohibition and mandamus, as prayed for against the above-mentioned respondents,
and making the writ of 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 the Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended
petitions, respondents led, with the leave of Court rst had and obtained, a
consolidated comment on said petitions and/or amended petitions, 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 or impairment of the freedom of the 1971 Constitutional 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 of submitting to them the matter of
rati cation of the new Constitution," the alleged "improper or inadequate submission of
the proposed constitution," the "procedure for rati cation adopted . . . through the
Citizens Assemblies"; and 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 non-justiciable"; 3) "there was substantial compliance with Article XV of the
1935 Constitution"; 4) "(t)he Constitution was properly submitted to 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, led 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-36161, 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. L-36283 1 0 agreed that the same be, likewise, heard, as
it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164,
L-36165 and L 36236. The hearing, which began on February 12, shortly after 9:30 a.m.,
was continued not only that after 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 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 led by their
respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165
led 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 le his notes,
which was granted, with the understanding that said notes shall include his reply to the
notes already led by the petitioners in G.R. Nos. L-36164 and L-36165. Counsel for the
petitioners, likewise, moved and were granted an extension of time, to expire on March
10, 1973, within which to le, 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 led a
"Manifestation and Supplemental Rejoinder," whereas the O ce of the Solicitor General
submitted in all these cases a "Rejoinder to 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 rst express his personal opinion on the issues before
the Court. After the exposition of 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. No. 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 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 is 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 promulgate
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, eigth (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 a "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 signi cant that in the previous drafts of section 10, Article
VIII of the Constitution, 'execution order' and 'regulation' were included among
those that required for their nulli cation the vote of two-thirds of all the members
of the Court. But 'executive order' and 'regulation' were later deleted from the nal
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." 1 1
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. 1 2 A treaty is entered into by the President with the concurrence of the
Senate, 1 3 which 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 proclamations, 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 xing the dates when speci c 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." 1 4
In fact, while executive orders 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. 1 5 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 of 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 rati ed 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
rati cation of an amendment to the Constitution should be settled by applying the
provisions of the Constitution in force at the time of the alleged rati cation, or the old
Constitution. 1 6
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 a rmative 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 rati cation 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
rati ed by the people, especially that they have done so in accordance with Article XV
of the 1935 Constitution. The petitioners maintain that the conclusion 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 not authority, under the 1935 Constitution, to dispense with
said election or plebiscite; that the proceedings before the Citizens' Assemblies did not
constitution 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 rati cation 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 disquali ed 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 violations 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 speci cally to the issue on whether the new Constitution
proposed by the 1971 Constitutional Convention has been rati ed 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, 1 7 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, 1 8 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 rati cation 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, 1 9 questioning Our authority
to determine the constitutional su ciency of the factual bases of the Presidential
proclamation suspending the privileges of the writ of habeas corpus on August 21,
1971, despite the opposite view taken by this Court in Barcelon v. Baker 2 0 and
Montenegro v. Castañeda, 2 1 insofar 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 modi ed, in Gonzales v. Commission on Elections, 2 2 the political-
question theory adopted in Mabanag v. Lopez Vito. 2 3 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. 2 4
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 classi ed or divided, by reason of their nature, into three (8) 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
con icts 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 eld 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 within the
area allocated thereto by the Constitution. 2 5
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 "de ne, 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 nality, not only justiciable
controversies between private individuals or entities, but, also, disputes or con icts
between a private individual or entity, on the one hand, and an o cer or branch of the
government, on the other, or between two (2) o cers or branches of service, when the
latter o cer 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 o cer 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 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 Tañada v. Cuenco, 2 6 this Court quoted with approval from In re McConaughy,
2 7 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 certi cate of the state canvassing board would then be nal,
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 speci cally delegated to some other
department or particular o cer 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 the Legislature may in its discretion determine whether
it will pass a law or submit a proposed constitutional amendment to the people.
The courts have no judicial control over such matters, not merely because they
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 to him, free from judicial control, so long as he observes the
laws and acts within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a political nature, but
because the Constitution and laws have placed the particular matter under his
control. But 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 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 o cial 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
w ere the greatest contained in any written constitutional document.' (Italics
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 quali ed, conditional or subject to
limitations, the issue on whether or not the prescribed quali cations or conditions have
been met, or the limitations respected, it justiciable or non-political, the crux of the
problem being one of legality or validity of the contested act, not its wisdom.
Otherwise, said quali cations, 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 main functions 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, 2 8 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 satis ed 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." 2 9 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 con ict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between the
several departments" of the government. 3 0
The Solicitor General has invoked Luther v. Borden 3 1 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 led 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 o cer, 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 dissatis ed 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 rati ed 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 rati ed by the people. "(T)he times and places at which the
votes were to be persons who were to be given, the receive and return them
quali cations 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 power
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 asset
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 rati ed 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 when into operation. The judges who decided that the 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 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
government has been lawfully established, which the courts of 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." 3 2
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 no provision 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 rst 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 in force at
the time of the purported rati cation of the former, which is essentially a justiciable
question. There was, in Luther v. Borden, a con ict 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 matters other 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 Minnesota 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 nal and controlling a decision of the highest court of a
state upon a question of the construction of the Constitution of the state . . ." 3 3
Baker v. Carr, 3 4 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, 3 5 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 quali cations 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 . . . " 3 6
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 rati ed in accordance with said Art. XV is a
justiciable one and non-political in nature, and that it is not only subject to judicial
inquiry, but, also, that it is the Court's bounden duty 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 de controversy as to whether some action denominated 'political' exceeds
constitutional authority.'" 3 7
III
Has the proposed new or revised Constitution been rati ed conformably to said
Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon the ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through which,
respondents maintain, the proposed new Constitution has been rati ed; 2) that said
Assemblies "are without power to approve the proposed Constitution"; 3) that the
President "is without power to proclaim the rati cation 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 rati cation or rejection" of the proposed Constitution or "to
appropriate funds for the holding of 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 "un t for .
. . submission to the people;" 3) that "(t)he period of time between November 30, 1972
when the 1972 draft was approved and January 11-15, 1973," when the Citizens'
Assemblies supposedly rati ed 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 and which they never knew would
be submitted to them for rati cation 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 of 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 rati cation 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 rati cation 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." 3 8
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 rati cation" at an
"election"; and
3.That such amendments be "approved by a majority of the votes cast" in said
election.
Compliance with the rst 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 ve (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 1 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 disquali ed 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 quali cations shall vote a rmatively 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, all administrative questions,
affecting elections, including the determination of the number and location of
polling places, and the appointment of election inspectors and of other election
o cials. 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 free, orderly, and honest elections . The decisions, orders, and rulings the
Commission shall be subject to review by the Supreme Court.
"xxx xxx xxx" 3 9
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 "citizen
of the Philippines not otherwise disquali ed 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 quali cations and none of
the disquali cations, prescribed by law, and that said right may be vested by
competent authorities in persons lacking some or all of the aforementioned
quali cations, and possessing some of the aforesaid disquali cations. 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 quali cations 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 in uenced by the election laws then in force in the Philippines . . ." 4 0 Said
committee had recommended: 1) "That the right of suffrage should be exercised only
by male citizens of the Philippines." 2) "That it should be limited to those who could
read and write." 3) "That the duty to vote should be made obligatory." It appears that the
rst 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 of said Constitution — the duty to "extend the
right of suffrage to 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 quali cations shall vote a rmatively on the
question." 4 1
The third recommendation on "compulsory" voting was, also, debated upon
rather extensively, after which it was rejected by the Convention. 4 2 This accounts, in my
opinion, for the permissive language used in the rst sentence of said Art. V. Despite
some debates on the age quali cation — amendments having been proposed to reduce
the same to 18 or 20, which were rejected, and the residence quali cation, as well as
the disquali cations to the exercise of the right of suffrage — the second
recommendation limiting the right of suffrage 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. 4 3
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 quali cations and none of the disquali cations 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 quali cations 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 in uenced by the
election laws then in force in the Philippines." Our rst 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 1971 — 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 quali cations
for and disquali cations from voting, are quoted below. 4 4 In all of these legislative
acts, the provisions concerning the quali cations of voters partook of the nature of a
grant or recognition of the right of suffrage, and. hence, of a denial thereof to those who
lacked the requisite quali cations and possessed any of the statutory disquali cations.
In short, the history of section 1, Art. V of the Constitution, shows beyond doubt that
the same conferred — not guaranteed — the authority to exercise the right of suffrage
to persons having the quali cations prescribed therein and none of the
disquali cations to be speci ed in ordinary laws and, by necessary implication, denied
such right to those lacking any of said quali cations 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, 4 5 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 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 as plebiscites is, to say the least, a debatable one.
Indeed, there seems to be a con ict between the last paragraph of said section 6 of
Rep. Act No. 3590, 4 6 pursuant to which the "majority vote of all the barrio assembly
members" (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, 4 7 "
(a)ll duly registered barrio assembly members quali ed 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 of the barrio "during the six months
immediately preceding the election, duly registered in the list of voters" and "not
otherwise disquali ed . . ." — just like the provisions of the 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 con ict should be resolved in favor of the
21-year-old members of the assembly, not only because this interpretation is in accord
with Art. V of the Constitution, but, also, because provisions of a Constitution —
particularly of a written and rigid one, like ours — are 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 su ciently important to be
included in the Fundamental Law of the land. 4 8 Besides, it would be illogical, if not
absurd, to believe that Republic Act No. 3590 requires, for the most important
measures for which it demands — in addition to the favorable action of the barrio
council — the approval of the barrio assembly through a plebiscite, lesser quali cations
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 o cers , not to
plebiscites for the rati cation of amendments to the Fundamental Law or a revision
thereof, or of an entirely new Constitution, and to permit the legislature to require lesser
quali cations for such rati cation, notwithstanding the fact that the subject thereof is
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 are 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, 4 9 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 quali cations laid down in both
the Constitution and the present Election Code, 5 0 and of whether or not they are
disquali ed under the provisions of said Constitution and Code, 5 1 or those of Republic
Act No. 3590, 5 2 have participated and voted in the Citizens' Assemblies that have
allegedly rati ed the new or revised Constitution drafted by the 1971 Constitutional
Convention.
In fact, according to the latest o cial 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 14,976,561 "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 quali cations 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 quali ed voters, the proceedings in the Citizens'
Assemblies must be considered null and void. 5 3
It has been held that "(t)he power to reject an entire poll . . . should be exercised .
. . in a case where it is impossible to ascertain with reasonable certainty the true vote,"
as where "it is impossible to separate the legal votes from the illegal or spurious . . ." 5 4
In Usman v. Commission on Elections, et al., 5 5 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.'" 5 6
"The word 'cast' is defined as 'to deposit formally or officially.'" 5 7
"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 de ne a 'vote cast' as the exercise on a ballot of
the choice of the voter on the measure proposed." 5 8
In short, said Art. XV envisages — with the term "votes cast" — choices made on
ballots — not orally or by raising hands — 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
o cial 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 so
consistently interpreted in all plebiscites for the rati cation or 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 1935 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 dependent upon either Congress or the Judiciary? The
answer must be in 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 eld 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 o ces
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 o ce of its members — nine (9) years, except those rst appointed 5 9 —
the longest under the Constitution, second only to that of the Auditor General 6 0 ; by
providing that they may not be removed from o ce 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 o ce"; that the decisions of the Commission "shall be subject to review by the
Supreme Court" only 6 1 ; that "(n)o pardon, parole, or suspension of sentence for the
violation of any election law may be granted without the favorable recommendation of
the Commission" 6 2 ; and that its chairman and members "shall not, during their
continuance in o ce, 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
be affected by the functions of their o ce; nor shall they, directly or indirectly, be
nancially interested in any contract with the Government or any subdivision or
instrumentality thereof." 6 3 Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible to 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 of 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
questions, affecting elections, including the determination of the number and location
of polling places, and the appointment of election inspectors and of other election
o cials." And, to forestall possible con icts or frictions between the Commission, on
the one hand, and the other o ces 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
satis ed with this, it declares, in effect, that "(t)he decisions, orders, and rulings 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 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. 6 4 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; the
formation of lists of voters, the identi cation 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
national les of registered voters; the composition and appointment of boards of
election inspectors; the particulars of the official ballots to be used and the precautions
to be taken to insure the 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, provincial and national boards of canvassers; the representation of political
parties and/or their candidates in each election precinct; the proclamation of the
results, including, in the case of election of public o cers, election contests; and the
jurisdiction of courts of justice in cases of violations of the provisions of said Election
Code and penalties for such violations.
Few laws may be found with such a meticulous and elaborate set of provisions
aimed at "insuring free, orderly, and honest elections," 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
elections 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 utmost importance,
owing to the existence of Martial Law.
In Glenn v. Gnau, 6 5 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 xxx 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 — was contested in the plebiscite
cases, as well as in the 1972 habeas corpus case 6 6 — We need not, in the cases at 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 rati cation or
rejection; directing the publication of said proposed Constitution; and declaring, inter
alia, that "(t)he provisions of the Election Code of 1971, insofar as they are not
inconsistent" with said decree — excepting those "regarding rights 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 o cers
except barrio o cials 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 the 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 No. 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 the proposed Constitution . . . temporarily suspending the effects of
Proclamation No. 1081 for the purposes of free and open debate on the proposed
Constitution . . ." This speci c 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
the rati cation 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 6 7 — 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 speci c
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 speci ed 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 in Art. V of the 1935 Constitution. The provision of Presidential Decree No. 86-
A directing the immediate submission of the result thereof to the Department of Local
Governments and 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
relative to the conduct of elections," if the proceedings in the Assemblies would
partake of the nature of an "election" or plebiscite for the rati cation or rejection of the
proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential
Decree No. 86-B, dated January 7, 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 shall include the matter of rati cation of the Constitution proposed 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 the 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 o cers and agencies of
the Executive Department sought to be excluded therefrom by Art. X of the 1935
Constitution. Worse still, said o cers and agencies of the Executive Department, who
had been publicly urged and ostensibly promised to work for the rati cation of the
proposed revised Constitution would be favored thereby, owing to the practically
inde nite extension of their respective terms of o ce 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 led by the o cers who
conducted said plebiscites. This is another patent violation of Art. X 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 rati ed the revised
Constitution proposed by the 1971 Constitutional Convention. ". . . (a)ll the authorities
agree that the legal de nition of an election, as well as that which is usually and
ordinarily understood by the term, is a choosing or a selection by those having a right to
participate (in the selection) of those who shall ll the o ces, or of the adoption or
rejection of any public measures 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." 6 8
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
the Citizen's Assemblies allegedly held
throughout the Philippines?
Respondents maintain the a rmative, 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,
rati ed, approved or adopted by the "overwhelming" majority of the people; that Art. XV
of the 1935 Constitution has thus been "substantially" complied with; and that the Court
should 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 whom its powers are derived.
The major aw 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 o cer 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;
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 down to whether or not the Executive acted within
the limits of his authority when he certi ed in Proclamation No. 1102 "that the
Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional
Convention has been rati ed 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 certi ed 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 o cers or for the rati cation 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 province 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. Francisco 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 Local 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, 80 that he could not 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 on February 16, 1973,
and in the resolution of this Court of the same date, the Solicitor General was asked to
submit, together with his notes on his oral argument, a true copy of the aforementioned
report of Mr. Cruz to the President and of the "(p)roclamation, decree, instruction, order,
regulation or circular, if any, creating or directing or authorizing the creation,
establishment or organization" of said municipal, provincial and national associations,
but neither a copy of said alleged report to the President, nor a copy of any said "
(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 legal foundation. Hence, the
conclusion is set forth in the dispositive portion of said Proclamation No. 1102, to the
effect that the proposed new or revised Constitution had been rati ed by the majority
of the votes cast by the people, cannot possibly have any legal effect or value.
The theory that said proclamation is "conclusive" upon the 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 6 9 is not conclusive
upon the courts. It is no more than prima facie evidence of what is attested to by said
resolution. 7 0 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 o ce
involved. 7 1 If prior to the creation of the Presidential Electoral Tribunal, no such protest
could be led, it was not because the resolution of Congress declaring those had been
elected President or Vice-President was conclusive upon courts of justice, but because
there was no law permitting the ling 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 rati ed by a
majority of the votes cast therefor, may be duly assailed in 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 7 2 is squarely in point. "As the Constitution stood
from the organization of the state" — of Minnesota — "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 scienti c and satisfactory
methods of raising venue 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 not 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 the proclamation 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 boards 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 o cers, and canvassing boards are not conclusive and that the
nal decision must rest with the courts , unless the law declares that the decisions of
the board shall be nal" — 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 nal 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, 7 3 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. 7 4
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 certi cation 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 certi ed to the President of the alleged
result of the citizen's 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 rati ed in accordance with the provisions
of the 1935 Constitution. In fact, it has not even been rati ed in accordance with said
proposed Constitution, the minimum age requirement therein for the exercise of the
right of suffrage being eighteen (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 rati cation of an amendment or revision of the rst 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. 7 5
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 le 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 have
not 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 rati cation
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 rati cation 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, he 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 t 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 o cially. 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 7 6 — 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 su ciency 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 rati cation 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 rati cation 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; additional question italics.]
"[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 rati cation of a proposed Constitution or of a proposed amendment
thereto. Secondly, neither is the language of question No. 7 — "Do you approve of 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 or satisfactory. The approval of the majority of the votes cast in a 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 a rmatively or negatively. If the majority of the answers to question
No. 7 were in the a rmative, the 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 a rmative. 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 a rmative. In either
case, not more than one plebiscite could be held for the rati cation 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 rati cation 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 resume (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 ve
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 O ces and other
government o cials 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 ve questions among those to be discussed and asked in the Citizens'
Assembly meetings. With this latest order, we again had to make modi cations 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 O ce of the Governor, the splendid cooperation and support
extended by almost all government o cials 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 o cials had to suspend "all
scheduled Citizens' Assembly meetings . . ." and call all available o cials ". . . 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 ve questions
among those to be discussed and asked in the Citizens' Assembly meetings. With this
latest order, we again had to make modi cations in our instructions to all those
managing and supervising the holding of the Citizens' Assembly meetings throughout
the 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 as 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 to 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
rati cation 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 a 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 o cials
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 noti ed that citizens' assemblies would be
held in the places where their respective residences were located. In the Prohibition and
Amendment case, 7 7 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, 7 8 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, 1973, 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, I gather that
respondents refer mainly to the o ces under the Executive Department. In a sense, the
latter performs some functions which, from a constitutional viewpoint, are political 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 de ne 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. 7 9
Consequently, I am not prepared to concede that the acts of the o cers and
o ces of the Executive Department, in line with Proclamation No. 1102, connote a
recognition thereof or 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 they 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 rati ed 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 nal 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 o cer or o ce of the
Government complies with the commands of a superior o cer or o ce, 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 o cer or o ce, if he or it acted otherwise, would just be
guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 8 0 — 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 delity to it and proclaiming it, as
directed thereby";
2.The "Legislature in its formal o cial 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
rati cation 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 ve (5) weeks
before the scheduled plebiscite, whereas the validity of Proclamation No. 1102
declaring on January 17, 1973, that the proposed Constitution had been rati ed —
despite General Order No. 20, issued on January 7, 1972, formally and o cially
suspending the plebiscite until further notice — was impugned as early as January 20,
1973, when L-36142 was led, or three (3) daysafter 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
ling 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 O cers, and no plausible reason has been adduced to warrant departure
therefrom. 8 1
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
o cial 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, 8 2 likewise,
headlined, on its front page, a "Senatorial Plot Against '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 statements may have been, the
idea implied therein was too clear and 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 justi ed 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 rati cation, adoption or approval of said Proclamation No. 1102. In the
words of the Chief Executive, "martial law connotes power of the gun, meant coercion
by the military, and compulsion and intimidation." 8 3 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 re ect 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 nd it di cult 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 certi ed 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 certi ed by the aforementioned o cers of Congress, the so-called enrolled bill
were certi ed 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
o cers 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 o cial authority to perform in connection
therewith, and, hence, his certification is, legally, as good as non-existent.
Similarly, a certi cation, 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 certi cation, either to the President of the Philippines or to the
President of the Federation or National Association of presidents of Provincial
Associations of presidents of municipal associations of 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 o cer
designated by law to superintend plebiscites or elections held for the rati cation or
rejection of a proposed amendment or revision of the Constitution and, hence, to
tabulate the results thereof. Worse still, it is the o cer or department which, according
to Article X of the 1935 Constitution, should not and must not be allowed to participate
in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 8 4 the Highest
Court of the United States declared that courts "will not stand impotent before an
obvious instance of a manifestly unauthorized exercise of power." 8 5
I cannot honestly say, therefore, that the people have 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 must be said about the
procedure followed in these ve (5) cases. In this connection, it should be noted that
the Court has not as yet 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
Court voting to dismiss them outright — and then considered the 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 ling 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, led an opinion passing upon the merits thereof. On the other hand, three
(3) members of the Court — Justices Barredo, Antonio and Esguerra — led 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." 8 6 When the
petitions at bar were led, 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 su ciently 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 ve (5) consecutive days — morning and afternoon, or a
total of exactly 26 hours and 31 minutes — their respective counsel led extensive
notes on their oral 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 documents 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 led 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 opinions attached hereto. Hence,
the resume of the votes east 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, as 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 respondents in said case, as
well as in eases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions
therein should be given due course, there being more than prima facie showing that the
proposed Constitution has not been rati ed in accordance with Article XV of the 1935
Constitution, either strictly, or substantially, or has been acquiesced in by the people or
a 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 di cult, 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 ve 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, quali cations and
modi cations 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 ve questions thus agreed upon as re ecting 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
rati ed validly (with substantial, if not strict, compliance) conformably to the applicable
constitutional and statutory provisions?
3.Has the aforementioned proposed Constitution been 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 respective opinions and/or concurrences, are as follows:
1.On the rst 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 quali ed his vote, stating that "inasmuch as it is claimed that 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 a rmative, the Court should keep its
hands-off out of respect to the people's will, but, in the negative, the Court may
determine from both factual and legal angles whether or not Article XV of the 1935
Constitution has been complied with." Justices Makasiar, Antonio and 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 rati cation, 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 rati ed in accordance with Article XV, section 1 of the 1935 Constitution, which
provides only one way for rati cation, i.e., "in an election or plebiscite held in
accordance with law and participated in only by qualified and duly registered voters." 8 7
Justice Barredo quali ed his vote, stating that "(A)s to whether or not the 1973
Constitution has been validly rati ed 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
rati cations, 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." 8 8
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
quali ed 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 rati cation, a new Constitution once accepted or
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 di culty 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."
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 vehicles restricted, (they) have no
means of knowing, to the point of judicial certainty, whether the people have accepted
the Constitution." 8 9
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. Justices Makalintal and Castro so voted on the strength of their view that "
(T)he effectivity of the said Constitution, in the nal 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, 9 0 are relevant and unavoidable." 9 1
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.
Concepcion, C.J., dissents.
Zaldivar, J., dissents in line with the personal opinion of the Chief Justice, and
also dissents in a separate opinion.
Fernando, J., dissents in conformity with the personal views of the Chief Justice,
except as to such portions thereof on which he expresses his own thoughts as set forth
in his dissenting opinion.
Teehankee, J., dissents in conformity with the Chief Justice's personal opinion
and files a separate dissent.
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
rati cation of constitutional amendments. It has been judicially 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. 491; 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. 582; State v.
Tu y, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the
amendment and the form of the ballot are su cient (Rugsell v. Croy, 164 Mo. 69, 63
S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149; Murphy Chair Co.
v. Attorney General [Mich.] 112 N.W. 127); whether the method of submission is
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
su cient (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 as well by resolution as by a
legislative act approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50
L.R.A. 568; War eld v. Vandiver, 101 Md. 78, 60 Atl. 538; Edward v. 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, 68 N.W. 418, 34 L.R.A. 97); at what election the amendment must 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 nal, 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 rati ed by a vote of the people. One prerequisite is equally as
essential as the other. The amendment must rst 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 o cial, 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 changed only by the people in
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 can
dispense 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. 100, 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 any 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 a 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 o cers 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 it was held that, conceding
the irregularity of the proceedings of the Legislature and the doubtful scope of the
provisions for the election, yet in view of the very uncertainty of such provisions, the
past legislative history of similar propositions, the universal 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 of 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.W. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31
Colo. 369, 74 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 well-considered case of Kadderly v.
Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these 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. In Livermore 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 material
variance 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. ?6, 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 two 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 these 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 be approved by both
Legislatures, and that it did not follow that, because the second Legislature adopted
separately 8 out of the 17 amendments adopted by the rst Legislature, it would have
adopted the 17, or any of them, if they had been voted upon by the second in the form
adopted by the rst 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 the convention,
and that, as the people had spoken and rati ed 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 the 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 had 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 contended that the amendments had been improperly
submitted, and not adopted by a majority of the quali ed voters voting at the election,
as required by the Constitution. The law did not 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, inserted into the
Constitution of the state of Mississippi as a part of the Constitution.' In fact, the
amendment was not submitted 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 nal judgment as well, con des 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 a rmative, 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 Whit eld, '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 di cult 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, 46 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 o cers 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 certi cates showing
the result of the voting throughout the state, and made it the duty of the Governor at the
designated time to 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 certi cate 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 ling such certi cate 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 le 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 of
certiorari 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 o cial 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 any prevailing opinion.'
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the
constitutional requirement of publication of a 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
MALACAÑANG
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 O ce of
the President to submit to them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the rati cation
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
elds, 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 rati cation 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
MAKALINTAL and CASTRO , JJ.:
The preliminary question before this Court was whether or not the petitioners
had made out a su cient prima facie case 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 led We considered
them as motions to dismiss so that they could be orally argued. As it turned out, the
hearing lasted ve 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
certi ed and proclaimed by the President on January 17, 1973 (Proclamation No 1102)
was not an act of rati cation, 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 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 rati cation." At the time that Constitution was approved by the Constitutional
Convention on February 8, 1935, and rati ed in a plebiscite held on the following May
14, the word "election" had already a de nite meaning in our law and jurisprudence. It
was not a vague and amorphous concept, but a procedure prescribed by statute for
ascertaining the people's choices among candidates for public o ces, or their will on
important matters submitted to them, pursuant to law, for approval. It was in this sense
that the 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
o cers except barrio o cials and plebiscites 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 of suffrage, and with speci c 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 quali ed voters be
registered in a permanent list, the quali cations being those set forth in Article V,
Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence.
These quali cations are reiterated in Section 101 of the Election Code. Section 102
enumerates the classes of persons disquali ed 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 o cial 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 speci c reference to the rati cation 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 rati cation 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 rati cation 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 a plebiscite for the
rati cation 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 rati cation 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 o cial
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 rati ed in only one way, that
is, in an election or plebiscite held in accordance with law and participated in only by
quali ed 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 rati cation 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 rati cation 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 su cient 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 rati cation of just
one amendment, as in Tolentino vs. COMELEC, but the rati cation 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 rati ed 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 the 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 the plebiscite which he had called for January 15, 1973 (Presidential
Decree No. 73) for the rati cation of the draft 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 to
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 the plebiscite was reworded as follows: "Do yon like the plebiscite to be
held later?" The implication, it may likewise be noted, was that the Assemblies should
express their views as to when 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 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:
italics 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

QUESTION No. 3
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 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 to 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 Citizens' 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 quali ed, let
alone registered, voters, but included all citizens from the age of fteen, and regardless
of whether or not they were illiterates, feeble-minded, or ex-convicts * — these being the
classes of persons expressly disquali ed 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 o cial 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 gures 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 certi ed 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 nding that the rati cation of the draft Constitution by the Citizens
Assemblies, as certi ed 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 nding, 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 o cial acts. No question of wisdom or of policy is involved. But from
this nding it does not necessarily follow that this Court may justi ably 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 nal 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 rati cation 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
o cial 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 "the 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 jure government 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 the 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 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 XVII, 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 some 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 justi ed 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 rati cation 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 rati ed the 1973
Constitution and that such rati cation 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 a 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 Citizens 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; no judicial dictum can prevail against it. We do not
see that the 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 de ance of the existing
Constitution not 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 a 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 a rms 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 rati cation of the
Constitution was a revolutionary act and that the government now functioning under it
is the product of such revolution. However, we are not prepared to agree that the
premise is justified.
In the rst place, with speci c reference to the questioned rati cation, several
signi cant 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 approve of the Constitution?" (4) President
Marcos, in proclaiming that the Constitution had been rati ed, stated as follows: "
(S)ince the referendum results show that more than ninety- ve (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 rati ed 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 inde nite 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 rati cation" ( 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 rati cation 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 rati cation (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 rati ed,
for recommendation imports recognition of some higher authority in whom the nal
decision rests.
But then the President, pursuant to such recommendation, did proclaim that the
Constitution had been rati ed 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 rati cation. In
this respect subjective factors, which defy judicial analysis and adjudication, are
necessarily involved.
In positing the problem within an identi able frame of reference we nd 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 the Katipunan ng mga Barangay, was intended to
be de nite and irrevocable, regardless of non-compliance with the pertinent
constitutional and statutory provisions prescribing the procedure for rati cation. 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 National, Jan.
7, 1913.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973,
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 a 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 to 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 a Revolutionary Government? They cannot be
compatible . . ." "(I)t is my feeling," he said, "that the Citizens' Assemblies which
submitted this recommendation merely sought to 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 rati cation of the new Constitution and the establishment of a revolutionary
government, the latter being unnecessary, in his opinion, because precisely the
Constitution had been rati ed. 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 need 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 signi cance, both explicit and implicit, and certainly unmistakable,
in the foregoing pronouncements, it is that the step taken in connection with the
rati cation 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 signi cant 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; italics 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?
"A.I have never gotten off the constitutional track. Everything I am doing is in
accordance with the 1930 Constitution. The only thing is that instead
of 18 year olds voting, we have allowed 15-year-old 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
su cient 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, demanded that the
action he took pursuant thereto be nal and irrevocable, then judicial review is out of
the question.
In articulating our view that the procedure of rati cation 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 nd 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 nd 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.
Separate Opinions
BARREDO , J.:
As far as I am concerned, I regard the present petitions as no more than mere

reiterations of the Supplemental Petitions led by Counsel Lorenzo M. Tañada on
January 15, 1973 in the so called Plebiscite Cases decided by this Court on January 22,
1973. Of course, there are ampli cations of some of the grounds previously alleged,
and in the course of the unprecedented ve 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 sincerity, brilliance and eloquence of
counsels, nothing more cogent and compelling than what had already been previously
presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason
why 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 signi cance 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 ling 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, r can see now, after further re ection, 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 rati ed without the necessity of holding a plebiscite
in the form followed in the previous rati cation 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 reelection of the President, the bicameral legislature
and the Commission on Elections, 1947 of the parity amendments 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
rati cation substantially in compliance with the basic intent of Article XV of the 1935
Constitution. If indeed this explanation may be considered as a modi cation 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 rmer 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
rati cation 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 di culties, due to bitter rivalries over important positions
and committees and an incomprehensible fear of overconcentrating powers in their
o cers, the delegates went about their work in comparatively slow pace, and by the
third quarter of 1972 had nished deliberations and second-reading voting only on an
insigni cant 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
speci c 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 approved Resolution No.
5843 proposing "to President Ferdinand E. Marcos that a decree be issued calling a
plebiscite for the rati cation of the proposed new Constitution on such appropriate
date as he shall determine and providing for the necessary funds there for." Acting
under this authority, on December 1, 1972, the President issued Presidential Decree No.
73 submitting the draft constitution for rati cation 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 the proposed constitution. Not only this, subsequently, under date of
December 17, 1972, the President ordered the suspension of the effects of martial law
and lifted the suspension of the privilege of the writ of habeas corpus insofar as
activities connected with the rati cation 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 he 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 31, 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, in the same order of January 7, 1973,
General Order No. 20, the President ordered, "that the plebiscite scheduled to be held
on 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
eld 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
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 speci ed questions such as the
rati cation 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 speci ed in paragraph 2 hereof, and submit the results
thereof to the Department of Local Governments and Community
Development immediately thereafter, pursuant to the express will of the
people as re ected 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 O ce of the President to submit to them for resolution
WHEREAS, one of the questions persistently mentioned refers to the
rati cation 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 elds, 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
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 rati cation 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 the next
elections to be called?
"(6)Do you want martial law to continue?"
It is not seriously denied that together with the questions, the voters were
furnished "comments" on the said questions more or less suggestive of the answer
desired. It may be assumed that the said "comments" came from official sources, albeit
speci cally unidenti ed. As petitioners point out, the most relevant of these
"comments" were the following:
"COMMENTS ON
QUESTION No. 2
QUESTION No. 3

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 no 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 provincial
capitals and the National Civil Defense Network connecting all provincial
capitals. The certi cates of results were then own to Manila to con rm the
previous gures received by the aforementioned means of transmission.
The certi cates of results tallied with the previous gures 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 gures they received from the eld to the central committee to
tabulate the returns. The last gures 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, 1978. 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
seventy-one Constitutional Convention is subject to rati cation 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, fteen 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
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 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 ve
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 ninety
ve (95) percent 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
hereby certify and proclaim that the Constitution proposed by the nineteen
hundred and seventy-one (1971) Constitutional Convention has been rati ed
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 rst attempt to question the steps just enumerated taken by the President
was in the so called Plebiscite Cases, ten in number, which were led by different
petitioners during the rst 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 rst
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 Tañada, not being satis ed with the
fate of his urgent motion for early decision of the above ten cases dated January 12,
1973, led 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 rati ed. 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 was set
for 9:30 o'clock in the morning of that day. The details of what happened that morning
form part of the recital of facts in the decision rendered by this Court in the ten cases
on January 22, 1973 and need not be repeated here. Su ce it to state now that before
the hearing could be closed and while Counsel Tañada was still insisting on his payer
for preliminary injunction or restraining order, the Secretary of Justice arrived and
personally handed to the Chief Justice a copy of 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 led by respondents, the Court could
already decide on the fundamental issue of the validity of Proclamation 1102, as
Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada's
pleading and argument had anticipated its issuance, but the majority felt it was not
ready to resolve the matter, for lack, according to them, of full ventilation, and so, the
decision reserved to petitioners the ling of the "appropriate" cases, evidently, the
present ones.
II.
At the threshold, I nd 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 respondents Gil J. Puyat
and Jose Roy, who have been sued as President and President Pro Tempore of the
Senate, to the effect that the change in the composition of the Supreme Court provided
for in the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution to a
15-man Court, makes of these cases which were led after January 17, 1973, the date
when Proclamation 1102 declared the new Constitution as rati ed, political in nature
and beyond our jurisdiction. The main consideration submitted in this connection is that
inasmuch as the number of 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 rst 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 rst blush rather involved, I do not share the
view that the premises laid down by counsel necessarily preclude this Court from
taking a de nite 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 sh 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
su ce 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
rati cation adopted in Presidential Decrees 86A 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 the e cacy of the dispositive portion of Our decision dismissing
these cases, even if we have it understood that by the vote of six justices in favor of
such dismissal, We intended to mean that 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, the last thing I should knowingly countenance is uncertainty as to
the juridical signi cance 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 the 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 as 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 authority 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 issue touching on the capacity
in which the Court is acting in these cases, I hold that we have no alternative but to
adopt in the present situation the orthodox rule that when the validity of an act or law is
challenged as being repugnant to a 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 present cases as the 15-man Supreme Court provided for therein.
Contrary to counsel's contention, there is here no prejudgment for or against any of the
two constitutions. The truth of the matter is simply that in the normal and logical
conduct of 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 rst 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 di culty 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 Malacañang 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
o cials 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, is 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 not necessarily follow that by this attitude
of the President, he considers the Supreme Court as still operating under the Old
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 xed in the New Constitution. Not
only that, his o cial alter ego, the Secretary of Justice, has been shoving to 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, the 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 fteen is, in my appraisal, of no consequence, considering that with the
presence of ten justices who are in 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 are su cient justices to declare by their
unanimous vote the illegality of Proclamation 1102, the votes of the justices to be
added would only be committed to upholding the same, since they cannot by any
standard be expected to vote against the legality of the very Constitution under which
they would be appointed.
Moreover, what makes the premise of presumptive validity preferable and, even
imperative, is that We are dealing here with a whole constitution that radically modi es
or alters not only the form of our government from presidential to parliamentary but
also other constitutionally based institutions vitally affecting all levels of society. It is,
to my 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 quali cations, 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 o cers 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 rati cation
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 de ance 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- ve and all
amendments thereto" and (2) its transitory provisions expressly continue the effectivity
of existing laws, o ces and courts as well as the tenure of all incumbent o cials, 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 the Supreme Court) may continue in o ce (under the new constitution) until
they reach the age of seventy years, etc." By virtue of the presumptive validity of the
new charter, all of Us form part of the 15-man-Court provided for therein and,
correspondingly, We have in legal contemplation, ceased in the meanwhile to be
members of the 11-man-Court in the 1935 Constitution. Should the Court nally decide
that the new 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 its
existence. On the other hand, if it is assumed that We are still 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 be 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 rati cation 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 of the Constitution of 1935. More speci cally, they maintain that the word
"election" in the said Article has already acquired a de nite accepted meaning out of the
consistent holding in the past of rati cation plebiscites, and accordingly, no other form
of rati cation can be considered contemplated by the framers of the Old Constitution
than that which had been followed in 1935, 1937, 1939, 1940, 1946 and 1967, the last
three or four of 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 nal report to the President, which served as basis for
Proclamation 1102, had no o cial 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 certi cation 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 taken 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 gures referred to in the proclamation may not be accurate, but I cannot say in
conscience that all of them are manufactured or prefabricated, simply because I saw
with my own eyes that people did actually gather and listen to discussions, if brief and
inadequate for those who are not 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 gure, in my estimate,
could still be signi cant enough and legally su cient 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 rati cation. 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 o cial 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 you approve of the New
Constitution? and (2) Do you want a 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 super uous.
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, his a rmative 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 the 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 a rati cation plebiscite.
The contention has no basis. In the interest of accuracy, the additional answer
proposed in the pertinent "comment" reads as follows: "But we do not want the 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 the most, the intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that after martial law was
declared, the circumstances surrounding the 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 the 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,
in uence peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the social inequalities widening the gap between the rich
and the poor, and many other deplorable long standing maladies crying for early relief
and solution. De nitely, as in the case of the 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
o cials, which no one can contend are per se means 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 speci c 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 speci c 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 the
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 of 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 of habeas corpus has never
produced any chilling effect upon the voters, since it is known by all that only those who
run afoul of 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 of 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 de ance of the respective administrations
that ordered the suspensions.
At this juncture, I think it is t to make it clear that I am not trying to show that
the result of the referendum may be considered as su cient basis for declaring that
the New Constitution has been rati ed in accordance with the amending clause of the
1935 Constitution. I reiterate that in point of law, I nd neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I may, certain impressions
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 t 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 rati cation itself, it is necessary
for me to point out that when it comes to rati cation, 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 nd out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of con icting reports, cases
of excess votes may be found, even if extrapolated will not, as far as I can gure out,
su ce to overcome the outcome o cially 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 o cial reports submitted to him in due course of the performance
of duty of appropriate subordinate officials, has elevated them to the category of an act
of a coordinate department of the government which under the principle of 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
di culty of an accurate checking of all the gures, 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 o cially declared. At this point, I would venture
to express the feeling that if it were not generally conceded that there has been
su cient showing of the acceptance in question, by this time, there would have been
already demonstrative and signi cant indications of a rather widespread, if not
organized resistance in one form or another. Much as they are to be given due
recognition as magni cent manifestations of loyalty and devotion to principles, I
cannot accord to the ling 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 for 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 re ects 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 or
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 rati cation of a new
Constitution. It is particularly stressed that the Article speci cally refers to nothing else
but "amendments to this Constitution" which if rati ed "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 rati ed, 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 con ned 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 rati cation 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 di cult
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 o cially 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 o cers 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 o cially 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
elected representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for the 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
taken, with the least loss of time, towards their accomplishment, I 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 o ce, 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 non-
justiciable.
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 signi ed 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 su cient ground to hold that, judged by such intent and, particularly, from the
political standpoint, the rati cation 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 rati cation 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 that case was decided in the context of submission, not of 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 of 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
sacri ced in the pursuit of these objectives, which constitute the totality of the reasons
for national existence. The sacred liberties and freedoms 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 quali ed
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 to 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 de ciencies
of the old order, unless they act in strict conformity therewith. I cannot believe that any
people can be so sti ed 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 Tañada 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, Osmeña, 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 entailed
will heal after the decision herein is promulgated, so that all of us Filipinos may forever
join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss all these petitions for
mandamus and prohibition without costs.
MAKASIAR , J.:
Assuming, without conceding, that Article XV of the 1935 Constitution

prescribes a procedure for the rati cation 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 linked with and strikes at, because it is decisive of, the validity of the
rati cation and adoption of, as well as acquiescence of the 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 de nition of a
political question enunciated in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051), aside
from the fact that 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 by 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 de ned 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
as the court, de ned 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."
(Tañada, 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 rati cation." 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
nulli cation 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 rati cation or adoption — even if it
deviates from or violates the procedure delineated there for by the old Constitution —
once the new Constitution is rati ed, adopted and/or acquiesced in by the people or
rati ed even by a body or agency not duly authorized there for but is subsequently
adopted or recognized by the people and by the other o cial organs and functionaries
of the government established under such a new Constitution, this Court is precluded
from inquiring into the validity of such rati cation, 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 rati cation,
adoption and/or acquiescence by the people cures any in rmity in its submission or
any other irregularities therein which are deemed mandatory before submission as they
are considered merely directory after such rati cation 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 essential is secured. But they are not themselves the essentials. " (Cited in
Lark en vs. Gronna, 285 N W 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 rati cation . . . 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 e cacy of rati cations 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 rati cation 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 rati cation 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 o cers, citizens and subjects of . . . government.' Proclamation
under authority of Congress that an amendment has been rati ed via carry
with it a solemn assurance by the Congress that rati cation 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 rati cation 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
rati cation, unlike the present petitions, which challenge inevitably the validity of the
1973 Constitution after its rati cation 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 nulli cation 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 republicans state, such as ours — to make, and
hence, to amend their own Fundamental Law. Congress may propose
amendments to the Constitution merely because 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 of Congress,
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 source of all powers
of government including the Constitution itself." (21 SCRA 787)
WE did not categorically and entitle overturn the doctrine in Mabanag vs. Lopez
Vito (78 Phil. 1) that both the proposal to amend and the rati cation 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 rati cation — satis ed the three fourths vote requirement of
the fundamental law. The force of this precedent has been weakened,
however, by Suanes us. Chief Accountant of the Senate, Avelino vs. Cuenco,
Tañada vs. Cuenco, and Macias vs. Commission on Elections. In the first, we
held that the O cers and employees of the Senate Electoral Tribunal are
supervision and control, not of that of the Senate President, as 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 nulli ed 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
rst 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 of 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 consistent with the stand taken in Mabanag vs. Lopez Vito, the
latter should be deemed modified accordingly. " (p. 787, italics supplied.)
In the Tolentino case, supra, We reiterated the foregoing comments (41 SCRA
703-714).
The inevitable consequence therefore is that the validity of the rati cation 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 o cial 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
rati cation 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 Cornwall is 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 rati ed on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About
six years 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, The Federalist,
Modern Library ed., p. 577, italics 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 by every
state, and the union shall be perpetual; nor shall any alteration 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 con rmed by the
legislatures of every statute." (See the Federalist, Appendix II, Modern Library
Ed., 1937, p.584; italics supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and

Perpetual Union for the alteration and for the rati cation of the Federal Constitution as
drafted by the Philadelphia Convention were not followed. Fearful that the said Federal
Constitution would not be rati ed by the state legislatures as prescribed, the
Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Federal Constitution should be
submitted to elected state conventions and if rati ed 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 rati cation then would have had
the some chance as the scriptural camel passing thru the eye of a needle. It
was therefore determined to recommend to Congress that the new
Constitution be submitted to conventions as in the several states specially
elected to pass upon it and that, furthermore, the new government should go
into effect if and when it should be rati ed by nine of the thirteen states . . . "
(The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle
Mead, pp. viii-ix; italics supplied).
Historian Samuel Eliot Morison similarly recounted:

"The Convention, anticipating that the in uence of many state
politicians would be Antifederalist, provided for rati cation 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 rati ed. 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 rst presidential inauguration." (The Oxford
History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was rati ed 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 in rmities, namely, the absence of a bill of rights and of a provision a rming 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
rati cation of the American Constitution, or against the legitimacy of the government
organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
which enunciated the principle that the validity of a new or revised Constitution does
not depend on the method of its submission or rati cation by the people, but on the
fact of at or approval or all option or acquiescence by the people, which fact of
rati cation or adoption or acquiescence is all that is essential, the Court cited precisely
the case of the irregular revision and rati cation 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 rati ed 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 by 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 nal; and no authority whatever, 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 o ce, 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 at of the people, and only the that of the people, can
breathe life into a constitution.
xxx xxx xxx
". . . We do not hesitate to say that a court is never justi ed 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, italics 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 o cers 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;
italics supplied).
Against the decision in the Wheeler case, supra, con rming the validity of the
rati cation and adoption of the American Constitution, in spite of the fact that such
rati cation was a clear violation of the prescription on alteration and rati cation of the
Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165
dismissed this most signi cant 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 historical
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 generals of the Federal Constitution, but does
not refer to it even implicitly as a 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 a rm 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 nulli ed, then there is
no valid rati cation 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), a rmed 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 Paci c States Telephone and
Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it
rea rmed the pronouncements in both Borden and Beckham cases, it is su cient for
us to quote the decision in Paci c States Telephone and Telegraph Co., supra, penned
by Mr. Chief Justice White, who restated:
"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 signi cance 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
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, as proposed

by the plaintiff, and it should be decided that the charter 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 compensation to its o cers 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 o cers 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 the 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 are 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, de nitely determined to be political and
governmental, and embraced within 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; italics supplied).
Even a constitutional amendment that is only promulgated by the Constitutional

Convention without authority there for and without submitting the same to the people
for rati cation, becomes valid, when recognized, accepted and acted upon by the Chief
of State an a 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 the
Constitution proclaimed in 1902 is invalid is that it was ordained and
promulgated by the convention without being submitted for rati cation or
rejection by the people of the commonwealth.
"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 that convention
has been recognized, accepted, and acted upon as the only valid
Constitution of the state by the Governor in swearing delity to it and
proclaiming it, as directed thereby; by the Legislature in its formal o cial 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 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;
but the judiciary in taking the oath prescribed thereby to support it, and by
enforcing its provisions; and by 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." (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 satis ed that the constitution was
violated in submitting the proposal . . . Substance more than form must be
regarded in considering whether the complete constitutional system or
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, act, 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 rati cation 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 rati cation 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, italics
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 rati cation 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 458, 462), where the admitted irregularities or
illegalities committed in the procedure for submission of the proposed constitutional
amendment to the people for rati cation consisted of: "(a) the alleged failure of the
county election commissioners of the several counties to provide a su cient. 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 as would have
invalidated the election. " (Italics supplied; see also Sylvester vs. Tindall, 8 SO 2nd 892;
154 Fla. 663).
Even prior to the election in November, 1970 of delegates to 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 oor 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 rati ed in Sec. 3(2) of Article
XVII of the 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 o cials of the Legislative and Executive branches of the government elected and/or
appointed under the I935 Constitution have either recognized or are now functioning
under the 1973 Constitution, aside from the fact of its rati cation by the sovereign
people through the Citizens' Assemblies. Ninety- ve (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 fteen (15) of a total of twenty-four (24) senators including Liberal senators
Edgar U. Ilarde and John Osmeña opted to serve in the Interim Assembly, according to
the certi cation of the Commission on Elections dated February 19, 1973 (Annex
Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165). Only the ve (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 rati cation 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 Nation 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 quali ed 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 the 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 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. Is the
question, therefore, one of a judicial characters It is our undoubted duty, if a
statute be unconstitutional, to so declare it; also, if a provision of the state
constitution be in con ict 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 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 o cers, who proceeded to organize a
new government. The charter government did not acquiesce in these
proceedings, and nally 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 di culty 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 nd 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 rati ed 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 xed by the court could 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 powers, and the people are dissatis ed, 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, and 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,
54.3,14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 19 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 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
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 state." (italics
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 a rmed in Osmeña 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
a t 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 speci c procedure for popular rati cation 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 rati cation which they themselves de ne 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 fty (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 o cials 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 certi cations by the O ce of 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 led by the Solicitor General on
behalf of the respondents public o cers dated March 7,1973). There is nothing in the
record that contradicts, much less overthrow the results of the referendum as certi ed.
Much less are We justi ed 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 petitioners have failed to do so.
No member of this Tribunal is justi ed 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 derision
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 ex-convicts and the ignorant, is more democratic as it broadens
the base of democracy and therefore more faithful to the express a rmation 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 quali ed 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, ex-convicts 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 rati ed by the overwhelming vote of close to 15 million citizens because there was
no o cial certi cation as to the results of the same from the Department of Local
Governments. But there was such certi cation as per Annexes 1 to 1-A to the Notes
submitted by the Solicitor General as counsel for respondents public o cers. This
should su ce to dispose of this point. Even in the absence of such a certi cation, in
much the same way that in passing laws, 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. 112-113, 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 facts upon
which Proclamation No. 1102 was based. This presumption is further strengthened by
the fact that the Department of Local Governments, the Department of National
Defense and the Philippine Constabulary as well as the Bureau of Posts are all under the
President, which o ces, 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, Villena vs. Secretary of Interior, 67 Phil. 451). To deny the
truth of 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
falsi cation, 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 petitioners all assert the contrary? Is the rule of law they pretend to
invoke only valid as long as it favors them?
The presumption of regularity in the performance of o cial functions is
accorded by the law and jurisprudence to acts of public o cers whose category in the
o cial 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 ve (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 sacri ce 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 ve (5)
petitioners in L-36165 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 bene t 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- ve (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 effected within a
year or two are brighter. It would seem therefore to be 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 justi ed 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 pay heed to the principle that the courts are not the fountain spring
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 what ought to be
their fundamental law. WE can only exercise the power delegated to Us by the
sovereign people, to apply or interpret the Constitution and the laws for the bene t 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 of 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
rst 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. Once can
therefore discern his hostility towards President Lincoln when he decided Ex parte
Merryman, which animosity to say the least does not be t 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 "Saviour 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 clari cation 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 L-36164 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 rati ed, 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 rst 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 rst demonstrate his own courage. Surely,
they will not a rm that the mere ling 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 di cult; 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 nd 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.:
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 a rm 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 rati cation in
accordance with the procedure prescribed by the existing Constitution, is a justiciable
question, accord all the presumption of validity to the constitutional amendment or the
revised or new Constitution after the government o cials or the people have adopted
or rati ed 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 479, 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 in our judgment its nullity is manifest beyond
reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Karl. 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 (Ermita-Malate 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 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 (Tañada
and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8-9; Malcolm and
Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that
independence, for the purpose of maintaining the same unimpaired and in order that its
work will not be frustrated, the Convention has the power to x 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
rati cation, 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, 1913, 1975 and 1977) which provides
that the new Constitution shall take effect immediately upon its rati cation (Sec. 16,
Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVII
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 rati cation 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, rati cation 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 the estimation of the Convention can
better determine the 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 rati cation of the proposed new Constitution on such appropriate
date as he shall determine and providing for the necessary funds therefor, . . .," after
stating in its "whereas" clauses that the 1971 Constitutional Convention is 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 . . ." (Italics
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 signi cant 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 su cient 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 its work of drafting has been completed, it could itself direct the
submission to the people for rati cation 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 nancially 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., italics supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE 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 rati cation 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 case to be determined by the judge, or such other
responsible o cer as may be authorized by law , after examination under oath or
a rmation of the complainant and the witnesses he 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 rati cation of this Constitution, unless modi ed, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modi ed 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 deem t 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 rati cation,' as provided in Section 1 of Article XV of the 1935
Constitution." (Pp. 11-18, 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 rati cation. Once rati ed 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 su cient 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 vs. 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 o cially 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 very Annex "M" is the Filipino version of the
1973 Constitution, and, like the English version, contains the certi cation by President
Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary,
that the proposed Constitution was 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 30, 1972 by the delegates
whose signatures are thereunder a xed. It should be recalled that Constitutional
Convention President Diosdado Macapagal was, as President of the Republic from
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 rati cation by
t he quali ed electors de ned 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 rati cation, which Imposition by the Court is never justi ed (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 nulli es the proposed amendment or the new Constitution, the
procedure prescribed by the state Constitution is so detailed that it speci es 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 o cials only or of local o cials only, or of both
state and local o cials; xes the date of the election or plebiscite limits the
submission to only electors or quali ed electors; prescribes the publication of the
proposed amendment or a new Constitution for speci c period prior to the election or
plebiscite, and designates the o cer 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- fths 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- fths of all the members elected to that house shall
vote in favor of the proposed amendments, the legislature shall order an election
by the quali ed 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 nal 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 quali ed electors of the state upon the proposed amendments. If
such election be held on the day of the general election, the o cers of such
general election shall open a poll for the vote of the quali ed electors upon the
proposed amendments; If it be held on a day other than that of a general election,
o cers 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 quali ed 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 a rmative vote of a majority of all the quali ed
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 he 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 fths 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 quali ed 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
thenceforth said amendment or amendments shall be part of the said
Constitution. When two or more amendments shall be submitted in 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 o cial 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 fteen 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 speci c procedure, much
less a detailed procedure for submission or rati cation. 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 rati cation to the quali ed electors as de ned in Article V of the 1935
Constitution. Much less does it require the publication of the proposed Constitution for
any speci c 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 rati cation. 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 rati ed 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 the National Assembly proposed only about ve (5) years later —
on April 11, 1940, rati ed by the people on June 18, 1940 and approved by the
President of the United States on December 2, 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 rati ed on 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 it 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 Tañada &
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; Tañada & Fernando,
Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Elections 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 re-election of the
President and the Vice-President, and the creation of the Commission on Elections
(rati ed on June 18, 1940). The supervision of said plebiscites by the then Department
of Interior was not axiomatic, 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 rati cation 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 quali ed 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
rati cation to the quali ed electors as de ned 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 quali ed 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" refers 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 ail 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 in 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 quali ed electors of the Philippines as may be provided by law."
Section 5 of the same Article VI speci cally provides that congressmen shall "be
elected by the quali ed electors." The only provision that seems to sustain the theory of
petitioners that the term "people" in Article XV should refer to the quali ed electors as
de ned 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 the explicit provisions of Sections 2 and 5 of Article VI, which speci cally
prescribes that the senators and congressmen shall be elected by the quali ed
electors.
As aforesaid, most of the constitutions of the various states of the United States,
speci cally delineate in detail the procedure of rati cation of amendments to or
revision of state Constitutions and expressly require rati cation by quali ed electors,
not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of
the 1934-35 Constitutional Convention, speci ed that the amendment shall be
submitted to quali ed electors for rati cation. This proposal was not accepted,
indicating that the 1934-35 Constitutional Convention did not intend to limit the term
"people" in Article XV of the 1935 Constitution to quali ed electors only. As above
demonstrated, the 1934-35 Constitutional Convention limits the use of the term
"quali ed electors" to elections of public o cials. It did not want to tie the hands of
succeeding or 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 the 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 speci c 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 O cial Gazette in English and Spanish for three consecutive issues at
least fteen (15) days prior to said election, . . . and shall be posted in a conspicuous
place in its municipal and provincial o ce building and in its polling place not later than
April 22, 1937" (Sec. 12, Com. Act No. 34), speci es that the provisions of the Election
Law regarding the holding of a special election, insofar as said provisions are not in
con ict with it, should apply to the said plebiscite (Sec. 3, Com. Act No. 34); 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 392-483 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. ?3 calling for the plebiscite on the
constitutional amendments in 1939, 1940 and 1946, including the amendment creating
the Commission on Elections, speci cally 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 the following election of local o cials," (Sec. 1, Com.
Act No. 492); that the said amendments shall be published in English and Spanish in
three consecutive issues of the O cial Gazette at least ten (10) days prior to the
election; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2,
Com. Act No. 492); that the election shall be conducted according to the provisions of
the Election Code insofar as the same may be applicable; that within thirty (30) days
after the election, the 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. 617, consisting of 11 sections, was approved on April
25,1940 and provided, among others: that the plebiscite on the constitutional
amendments providing for a 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 O cial Gazette in English and Spanish at least 20 days prior
to the election and posted in every local government o ce 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); and that the National Assembly shall canvass the returns and certify
the results at a special session to be called by the President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the
parity amendment consists of 8 sections and 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 O cial 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, & days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election
Code shall apply to plebiscites (Sec. 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 quali ed 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 counsel 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 su cient. 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 o cer at all meetings
of the barrio assembly. The barrio secretary or in his absence, any member
designated by the presiding o cer to act as secretary shall discharge the duties
of secretary of the barrio assembly.
"For the purpose of conducting business and taking any o cial action in the
barrio assembly, It is necessary that at least one- fth 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 bear 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 quali ed 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.Quali cations 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 nal 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 any budgetary, supplemental appropriation, or special tax 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 o cials, 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 xxx 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 quali ed 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 or
above and who possess all other quali cations 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 quali cations 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 Tañada 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-years old as quali ed 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 rati ed 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 certi cation 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 certi cation by the said Department
Secretary should likewise be presumed; because it was done in the regular
performance of his o cial 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 certi cation by the Department Secretary and the
Chief Executive on the results of the referendum, is further strengthened by the
a davits and certi cations of Governor Isidro Rodriguez of Rizal, Mayor Norberto S.
Amoranto of Quezon City and Councilor Eduardo T. Paredes of Quezon City.
The procedure for the rati cation of the 1937 amendment on woman suffrage,
the 1939 amendment to the ordinance appended to the 1935 Constitution, the 1940
amendments establishing the bicameral confess, 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, confess 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 certi cation 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 a rmative 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 certi cation 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 certi cation of Governor Isidro Rodriguez of Rizal,
shows only 614,157 Yes votes as 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 certi cation 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 certi cation by Governor Lino Bocalan of Cavite, is not true; because
in his duly acknowledged certi cation 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 to 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
Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an a davit dated March 16, 1973 stating
that on January 15, 1973, he caused the preparation of a letter addressed to Secretary
Jose Roño 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 many 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 certi cate of results on the referendum in Pasay City to the O ce of the
President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and O cer in Charge of Pasay City
also issued an a davit dated March 15, 1973 stating that a certain Atty. Delia Sutton of
the Salonga Law O ce 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 o cial 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 o cial, she requested him if she could give her the uno cial 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 noti ed 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
Rati cation and Coordinating Council, certi ed 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 certi cation 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 gures 614,157 and 292,530 mentioned in
said letter were based on the certi cates 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 nal 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 certi cates of results in 26 municipalities of Rizal for nal tabulation
(Annex 3-Rejoinder of the Sol. Gen.; italics supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local
Government and Community Development, issued a certi cate 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 gures showing
the results of the referendum of the Citizens' Assemblies in those areas; and that the
said letters were not received by her o ce 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 certi cates 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 certi ed by the Department of
Local Government and Community Development, on the other, to the effect that even
assuming the correctness of the gures insisted on by counsel for petitioners in L-
36165, if the same 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 gures contained in the
certi cation 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 a plebiscite to be held later than those
against, only serves 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 Cam. Sur to Rejoinder of Petitioners in L-36165). If
there was no such freedom of choice, those who wanted a plebiscite later would not
outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 14, 1973 con rms 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 the "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 quali ed 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 con rm 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 O ce 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 quali ed 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 addressed 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 I) all quali ed 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 quali ed 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 o cial population projection of this o ce (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 gure
to the former which gives 74.2%.
"3)I 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 the 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
unquali ed/disquali ed 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 quali ed
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 o cial 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
quali ed 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 Osmeña, Jr., garnering a majority of from about 896,498
to 1,436,118 (Osmeña, Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8,
1973).
The petitioners in all the cases at bar cannot state with justi cation 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 quali ed 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 as 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 the law ordinarily engenders fear
in the individual which fear persuades the individual to comply with or obey the law. But
before martial law was proclaimed, many individuals did not fear such sanctions of the
law because of lack of effective or equal enforcement or implementation thereof — in
brief, compartmentalized justice and extraneous pressures and in uences frustrated
the rm 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 in iction 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 secured 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 o cers, 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 o cials. 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 o cers 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 a rm 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 o cers
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,
sherman, 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 su cient 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,
speci c 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 and 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 the 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 the 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 and 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 Mans eld,
Chairman, Committee on US-Philippine 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 di culties — land tenure, o cial corruption,
tax evasion and abuse of oligarchic economic power. Clearly, he knows the
targets. What is not y e t 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 reassured by recent developments . . . (Italics 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 herein before stated, that all these reforms were the
subject of discussion both in the committee hearings and on the oor 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 o cers that under martial 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. Styer (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 of 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 a technical state of
war continues. This includes the period of an armistice, or military
occupation, up to the effective date of a 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 un nished 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; italics 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 de ned 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. " (Italics supplied). There is
an implied recognition in the aforesaid de nition 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 o ces 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 threathens 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 adoption 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 can not 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; italics
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 last effects should
eventually receive the positive approval of the people or of their
representatives in the legislature." (P. 303, italics supplied).
From the foregoing citations, under martial law occasioned by severe crisis
generated by revolution, insurrection or subversion or even by just severe 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 well 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 justi ed 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 against open rebellion, insidious subversion and
succession. 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 and Moist 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 constitution 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 nality nor the imprisonment of the past, but the
unfolding 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 e cacy 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; italics 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;
italics 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, 138-139, cited in Bickel's Opus, supra; italics
supplied).
The eternal paradox in this nite world of mortal and fallible men is that nothing
is permanent except change. Living organisms as well as man-made 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 modi ed to built 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 ponti cal 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 con ict 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 the 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 personi es
the progressive liberal, spoke the truth when he said that some men "ascribe to 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 Britannica, 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
ambiance, charged as it is with so much tension and emotion, if not partisan passion.
The analytical, objective historians will write the nal verdict in the same way that they
pronounced judgment on President Abraham Lincoln who suspended the privilege of
the writ of habeas corpus without 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 Paci c — 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 ( led 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, 1865 (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 con nes 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 falls, 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 su cient 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 xed 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 o cers. 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 father-in-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 speci cally pray for a declaration that
the alleged rati cation 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 nal 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 rst
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 overt 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 rst 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.: For Dismissal of Petitions
These petitions seek to stop and prohibit the respondents Executive O cers
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 rati cation
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, rati ed 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 a rmative, 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 he
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 lead 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 seeks to set at naught Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A, claiming that the rati cation 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
fteen years of age, and through these assemblies the proposed 1972 Constitution
was submitted to the people for rati cation. 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
rati cation 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 rati cation 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
o ces 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; new appointments of key executive o cers 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 o ces 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 nds 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 rati ed, 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 ying 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
rati cation at that, submission of the people thereto by the organization of the
government provided therein and observance of its prescriptions by public o cers
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 property 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; and
therefore, if a state court should enter upon such an inquiry, and 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 a rm 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 of appointing judges to expound and
administer them. The acceptance of the judicial o ce is a recognition of the
authority of the government from which it is derived. And if the authority of that
government is annulled and overthrown, the power of its courts and other o cers
is annulled with it. 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 be incapable of pronouncing a judicial decision upon the
question it undertook to try. If it decides at all as a court, it necessarily a rms 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 t for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign capacity
(Tañada 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
embarassment 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 new Constitution to replace the
1935 Constitution. The new organic law is now in the plenitude of its e cacy 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 ponti cating that
there was no valid rati cation of the new Constitution. The sober realization of its
proper role and delicate function and its consciousness of the limitations on its
competence, especially in 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 entoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR , J., concurring and dissenting:

In these ve cases, the main issue to be resolved by this 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 rati ed. 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 rati ed. I was the only one who
expressed the opinion that the proposed Constitution was not validly rati ed 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 rati ed 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 of 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 o cer 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 the judiciary is the department which is charged with
the special duty of determining the limitations which the law places upon all o cial
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 provisions 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
rati cation of any change in the Constitution. Rati cation or non-rati cation 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 rati ed 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 rati ed
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 rati ed, I am reproducing herein pertinent
portions of my dissenting opinion in the plebiscite cases:
"The rati cation 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 passed 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 their rati cation
as provided in the Constitution.
"This Court, in the case of Tolentino vs. Commission on 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 derives 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 rst Constitution of an entirely new
government born of either a war of liberation from a mother country or of a
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 is 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 o cers 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 certi ed 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 rati ed 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 unequivocably 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 quali ed and registered
voters of the country would cast their votes, where o cial 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 rati ed; on April 30, 1937, when the amendment to the Constitution providing
for Women's Suffrage was rati ed; on June 18, 1940, when the 1940
Amendments to the Constitution were rati ed; on March 11, 1947 when the Parity
Amendment to the Constitution was rati ed; 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
rati cation of the proposed 1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the rati cation 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 XV 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 a rmative 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 quali ed voters or electors pass
on various public matters submitted to them — the election of o cers,
national, state, county, township — the passing on various other questions
submitted for their determination.' (29 C.J.S. 13, citing Iowa-llinois 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 Ill. App. 63; Rothfels v. Southworth, 356
P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Italics 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 o cers
except barrio o cials 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 quali ed 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 rst applying for cancellation
of his previous registration.' (Italics supplied). (Please see also Sections
100-102, Election Code of 1971, RA. 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 1 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 rati ed 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 rati ed or not, must not be decided by simply gathering people and
asking them to raise their hands in answer to the question of whether they vote
for or against a proposed Constitution. The election processes 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 of 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 the 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 this 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 by a vote, the determination of it rests with those who,
by the existing constitution, are accorded the right of suffrage. But the
quali ed 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 the political sense of the term, but by the general body of the
populace, the movement would be extra-legal' (Black'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 over 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
o cial agencies, but their own hands as well; and neither the o cers 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
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 su cient 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 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 governmental 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 of the
joint resolution to observe, follow and obey the plain essential provisions
of the Constitution. Furthermore, to say that, unless 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 of the Constitution, those who
would thereafter desire to violate it and disregard its clear mandatory
provisions would resort to the scheme of involving and confusing the
affairs of the State and 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 nd 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 o ce 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 ling of the same. However, on October 10, 1947,
after the period for the ling of certi cate of candidacy, Monsale withdrew his
certi cate of candidacy. But on November 7, 1947 Monsale attempted to revive
his certi cate of candidacy by withdrawing the withdrawal of his certi cate of
candidacy. e ( The Commission on Elections, on 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 certi cate of candidacy. On the
other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was
proclaimed elected. Monsale led 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 certi cate of candidacy his attempt
to revive it by withdrawing his withdrawal of his certi cate of candidacy did not
restore the effectiveness of his certi cate 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 rati cation of the amendment to the Constitution, the
a rmative votes cast in those assemblies can not be made the basis for
declaring the rati cation 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 must he 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 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 any 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, he suspended in the meantime.' It is, therefore, my view that voting in
the barangays on January 10-15, 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 the proclamation of the ratification of the proposed Constitution.
"It is my view, therefore, that Proclamation No. 1102 is 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 rati ed 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 in recognition of the democratic postulate that sovereignty
resides in the people." It is not disputed that in a democracy 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 o ce 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 Vice-President 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 quali ed voters, in duly appointed elections held from time to
time, by means of which they choose their o cials for de nite xed 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, 1 0 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,
1 1 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 quali cations. 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 should be
exercised, not exclusively for the bene t of the citizen or class of citizens professing it,
but in good faith and with an intelligent zeal for the general bene t 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
quali ed 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-McDu e 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 has certi ed that the
constitution conforms with the provisions of this act, it shall be submitted to the
people of the Philippine Islands for their rati cation or rejection at an election to
be held within four months after the date of such certi cation, on a date to be
xed by the Philippine Legislature, at which election the quali ed voters of the
Philippine Islands shall have an opportunity to vote directly for or against the
proposed constitution and ordinances appended thereto. Such election shall be
held in such manner as may be prescribed by the Philippine Legislature, to which
the return of the election shall be made. The Philippine Legislature shall by law
provide for the canvassing of the return and shall certify the result of the
Governor- General of the Philippine Islands, together with a statement of the votes
cast, and a copy of said constitution and 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 certi cation from the Philippine Legislature,
issue a proclamation for the election of o cers 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 1 of 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 o cials prior to the drafting of the 1935 Constitution, and also the
"election" mentioned in the Independence Act at which "the quali ed 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 rati cation or any amendment to the 1935
Constitution could only he done by holding an election, as the term "election" was
understood, and practiced, when the 1935 Constitution was drafted. The alleged
referendum in the citizens assemblies — participated in by persons aged 15 years or
more, regardless of whether they were quali ed 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, 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution
proposed by the 1971 Constitutional Convention was not rati ed 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 rati ed 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 o cials 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 o ce 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
of them took his oath of o ce, 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 o ce. The fact, that only one Senator out of 24, and only 22 Representatives
out of 110, took their oath of o ce, is an indication that only a small portion of the
members of Congress had manifested their acceptance of the new Constitution. It is in
the taking of the oath of o ce where the a ant says that he swears to "support and
defend the Constitution" that the acceptance of the Constitution is made manifest. I
agree with counsel for petitioners in 1,36165 (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 so only ex abundante cautela, or by way of a precaution,
or making sure, that in the event the new Constitution becomes de nitely effective and
the interim National Assembly is convened they can participate in legislative work in
their 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 days from January 17, 1973, the date when Proclamation No. 1102 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 a rmative 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 rati ed 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 rati ed and has come into effect. It being my
considered view that the rati cation 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. The proposed Constitution, therefore, should be considered
as not yet validly rati ed, 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 1935 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 for their rati cation 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 the democratic and constitutional system in our country.
I feel that if this Court would give its imprimatur to the rati cation 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 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 rati cation 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 o ce 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 to give due course to the petitions in these cases.
FERNANDO , J., dissenting :
No question more momentous, none impressed with such transcendental

signi cance is likely to confront this Court in the near or distant future as that posed by
these petitions. For while the speci c 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 rati cation. It could very well be
though that the ultimate outcome is not con ned 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 for 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 con guration 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 a rming
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 better support in a
regime where the rule of law holds sway. In discharging such a rule, this Court must
necessarily take into 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 su ce 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 of such factors,
however, I cannot, for reasons to be set more at length 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 rm conviction that the institution of judicial review speaks too clearly
for the point to be missed that o cial 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 that 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 1 0
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
rati cation, for from the very language of the controlling article, the two vital steps are
proposal and rati cation, which as pointed out in Dillon v. Gloss, 1 1 "cannot be treated
as unrelated acts, but as succeeding steps in a single endeavor." 1 2 Once an aspect
thereof is viewed as judicial, there would be no justi cation for considering the rest as
devoid of that character. It would be for me then an indefensible retreat, deriving no
justi cation 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. 1 3 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 which full discretionary authority is
vested either in the Presidency or Congress. It is thus beyond the competence of the
judiciary to pass upon. Unless clearly falling within the above 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 led only after either
coordinate branch has acted. Even when the Presidency or Congress possesses
plenary power, its improvident exercise or the abuse thereof, if shown, may give rise to
a justiciable controversy. For the constitutional grant of authority is not 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." 1 4 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." 1 5 After a thorough study of American judicial
decisions, both federal and state, he could conclude: "The eld 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 eld of public or governmental interests." 1 6 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." 1 7 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 1 8 of Yale and
Professor Freund 1 9 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 con dence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty." 2 0 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 of Justice Laurel in an early
landmark case, People v. Vera, 2 1 decided in 1937: "If it is ever necessary for us to
make any vehement a rmance during this formative period of our 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." 2 2 The
hope of course was that such assertion of independence and impartiality was not mere
rhetoric. That is a matter more appropriately left to others to determine. It su ces to
state that what elicits approval on the part of our people of a judiciary ever alert to
inquire into alleged breaches of the fundamental law is 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 satis ed
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 is
made that for all its care and circumspection this Court is manned by human beings
fettered by fallibility, but 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 delity to constitutional
requirements. Such is the teaching of a host of cases from Angara v. Electoral
Commission 2 3 to Planas v. Commission on Elections. 2 4 It should not start now. 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." 2 5 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." 2 6 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 cases of con icting 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." 2 7 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 has 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 "stulti cation" for it to evade." 2 8 or is it only Dean Rostow who could point
to Fraukfurter, 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 import 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.'" 2 9 Professor Konefsky, like Dean Rostow, could not accept the
characterization of judicial review as undemocratic. Thus in 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 the 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 cheeks. 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 di culty lies in this: you must rst enable the government to control the
governed; and in the next place oblige it to control itself.'" 3 0
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 tness of such competence being vested in
judges and of their being called upon to ful ll 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." 3 1 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. 3 2 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." 3 3 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 . . ." 3 4 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 thought, this meaningful query:
"The Constitution nowhere provides that it shall be what the judges say it is. How, then,
did it come about that the statement not only could be made but could become current
as the most understandable and comprehensive summary of American constitutional
law?" 3 5 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." 3 6 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 re ected in two leading
cases of recent vintage, Baker v. Carr, 3 7 decided in 1962 and Powell v. MacCormack, 3 8
in 1969, both noted in the opinion of the Chief Justice. The former disregarded the
warning of Justice Frankfurter in Colegrove v. Green 3 9 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." 4 0 For him, the judiciary "ought not to enter
this political thicket." Baker has since then been followed; it has spawned a host of
cases. 4 1 Powell, on the question of the power of a legislative body to exclude from its
ranks a person whose quali cations 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, 4 2 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 eld 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 self-restraint 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." 4 3 As for Professor Bickel, it has been said that as
counsel for the New York Times in the famous Vietnam papers case, 4 4 he was less
than insistent on the American Supreme Court exercising judicial self restraint. 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 tly 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. 4 5 It has brought forth a plethora of law
review articles, the reaction ranging from guarded conformity to caustic criticism. 4 6
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 these factors, it nevertheless seems to me that the doctrine of
political questions ought to be very sharply con ned to cases where the functional
reasons justify it and that in a given case 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 ne 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 di cult, for me at least, not to be swayed by such appraisal, coming from

such impeccable sources of the worth and signi cance 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. Tañada 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 rati cation. The crucial point
that had to be met is whether Proclamation No. 1102 manifests delity 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, 4 8 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 con dently 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, 4 9 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 ful lled. No evasion is to be 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 of the
conclusive effect attached to the electorate manifesting its will to vote a rmatively on
the amendments proposed poses an obstacle to the judiciary being insistent on the
utmost regularity. Brie y stated, substantial compliance is enough. A great many
American State decisions may be cited in support of such a doctrine. 5 0
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 rst Commonwealth Act, 5 1 submitting to the Filipino people for
approval or disapproval certain amendments to the original ordinance appended to the
1935 Constitution, it was made clear 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." 5 2 Then came the statute, 5 3 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, 5 4 reducing the term of the President to
four years but allowing his re-election with the limitation that he cannot serve for more
than eight consecutive years, 5 5 and creating an independent Commission on Elections.
5 6 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." 5 7
The approval of the present parity amendment was by virtue of a Republic Act 5 8 which
speci cally made applicable the then Election Code. 5 9 There is a similar provision in
the legislation, 6 0 which in cotemplation of the 1971 Constitutional Convention, saw to
it that there be an increase in the membership of the House of Representatives to 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. 6 1 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 rati cation. On two vital points, who can vote and how
they register their will, Article XV had been given a de nitive construction. That is why I
fail to see su cient justi cation for this Court a xing the imprimatur of its approval on
the mode employed for the rati cation of the revised Constitution as re ected 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, 6 2 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." 6 3 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." 6 4 From them, as Corwin
did stress, emanate "the highest possible embodiment of human will," 6 5 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 were not the case,
however, once it is manifested, it is to be accepted as nal and authoritative. The
government which is merely an agency to register its commands has no choice but to
submit. Its o cials must act accordingly. No agency is exempt from such a duty, not
even this Court. In that sense, the lack of regularity in the method employed to register
its wishes is not fatal in its consequences. Once the fact of acceptance by the 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 signi cance. In Miller
v. Johnson, 6 6 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 voters of the state and rati ed 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 but
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. Its work was approved by a majority. When the convention
reassembled, the delegates made numerous changes in the 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 a rming 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." 6 7 In Taylor v. Commonwealth, 6 8
a 1903 decision, it was contended that the Virginia Constitution proclaimed in 1902 is
invalid as it was ordained and promulgated by the convention without being submitted
for rati cation 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 delity to it and proclaiming it, as directed thereby;
by the Legislature in its formal o cial 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 its members to support it, and by enforcing its provisions; and by
the people in their primary capacity by peacefully accepting it and quiescing 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 o cers 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 di culty 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." 6 9
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 fteen 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 all such circumstances
being conceded, then no justiciable question may be raised. This Court is to respect
what had thus received the people's sanction. That is not for me though the 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 certi ed is well-nigh conclusive. There is in addition the
evidence owing 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 o cials under the 1935 Constitution, including practically
all Representatives and a majority of the Senators, have signi ed their assent to it. The
thought persists, however, that as yet su cient 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 nal analysis the state exists for the
individuals who in their collectivity compose it. Whatever be their views, they are
entitled to respect. It is di cult 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 nd myself unable to join the ranks
of my esteemed brethren who vote for the dismissal of these petitions. I cannot yield
an a rmative 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 eld 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 the commander-in-chief with all
the constitutional power it implies. Public o cials can go about their accustomed
tasks in accordance with the revised Constitution. They can pursue the even tenor of
their ways. They are free to act according to its tenets. That was so these past few
weeks, even after that petitions were led. 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
petition should prevail? What then? Even so, the decision of this Court need not be
executory right away. Such a disposition of a cast before this Court is not novel. That
was how it was done in the Emergency Powers Act controversy. 7 0 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 in rmity, 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 re nements unrelated to events. That may be so, but
I nd 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 eld of
discretion that remains." 7 1 Moreover what made it di cult 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 rati cation. 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 su cient
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 rati ed 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 speci cally, the issue submitted is whether the purported rati cation 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 people for their ratification." 1
A necessary corollary issue is whether the purported rati cation 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 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- ve 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 rati cation "
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 as declared 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 rati cation , whatever defects there might have been in the procedure are
overcome and mooted (and muted) by the fact of ratification"; and
— "(A)ssuming nally that Article XV of the 1935 Constitution was not strictly
followed, the rati cation of the new Constitution must nonetheless be respected.
For 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 . . ." 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 rati cation 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 rati ed in only one way, that is,
in an election or plebiscite held in accordance with law and participated in
only by quali ed and duly registered voters" 9 and under the supervision of
the Commission on Elections. 1 0
— Hence, if the Court declares Proclamation 1102 null and void
because on its face, the purported rati cation 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 he "invalidating" the proposed new Constitution but would be simply
declaring that the announced fact of rati cation 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 rati cation, 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, 1 1 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, nally 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 de acts of the President now in the honest belief that the 1972
Constitution had been validly rati ed 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, are per se null and void. It must he 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 the 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 nulli cation 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 rati ed 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 o cers; 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, before 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 scal year
budget for the government and P6 million for the holding of the 1949 national
elections. After rehearing, he further voted to also declare null and void the last two
executive orders appropriating funds for the 1949 budget and elections, completing
the "su cient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter." 1 3
Then Chief Justice Moran, who penned the Court's majority resolution, explained
his vote for annulment despite the great di culties 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 unquali ed 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
inde nite 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 by 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 appropriation act is a remote
possibility, for under the circumstances is 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 rm 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 and discharge the responsibilities committed to them respectively.'" 1 5
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 nal 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 su ce 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." 1 6
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
justiciable and not political questions, we may echo the words therein of Chief Justice
Whit eld 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 di cult and
embarrassing duty, one which we have not sought, but one which, like all others, must
be discharged.'" 1 7
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 rm 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 o cial
agencies, but their own hands as well" 1 8 in the exercise of their sovereign will or a
liberal and exible stand that would consider compliance with the constitutional article
on the amending process as merely directory rather than mandatory.
The rst choice of a strict stand, as applied to the cases at bar, signi es 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 rati cation", 1 9 participated in only by quali ed and duly registered
voters twenty-one years of age or over 2 0 and duly supervised by the Commission on
Elections, 2 1 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", 2 2 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", 2 3 and that the Comelec
is constitutionally "mandated to oversee . . . elections (of public o cers) and not
plebiscites." 2 4
To paraphrase U.S. Chief Justice John Marshall who rst declared in the historic
1803 case of Marbury vs. Madison 2 5 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, is 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, 2 6 "(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 de nition 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
con icting 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 2 7 the "climactic phrase," 2 8 "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." 2 9 This enduring concept to my mind permeated
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." 3 0
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 the 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) 3 1
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 o cers 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 the lives, fortunes, futurea n d 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 handwork 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 in 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 as
powerful and omnipotent as their original counterparts." 3 2
3.This Court in Tolentino likewise formally adopted the doctrine of proper

submission first advanced in Gonzales vs. Comelec 3 3 , thus:
"We are certain no one can deny that in order that a plebiscite for the rati cation
of an amendment to the Constitution may be validly held, it must provide the
voter not only su cient time but ample basis for an intelligent appraisal of the
nature of the 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 has hardly started considering the
merits of hundreds, if not thousands, proposals to amend the existing
Constitution, to present to the 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 rati cation 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.'" 3 4
4.Four other members of the Court 3 5 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 consent or rejection" as
"minimum requirement 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 in uences. 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 rati cation,
should put every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of rati cation 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" 3 6
They stressed further the need for undivided attention, su cient 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 rst 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 quali cation 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 rati ed 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 render
compulsory military service under the colors? Will the age of contractual consent
be reduced to 18 years? If I vote against this 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 be had 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 of the proposed amendment." 3 7
5.This Court therein dismissed the plea of disregarding the 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 realm of
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 more than a part of the Constitution thus ordained by the
people. Hence, in construing said section, We must read it as if the people had
said, 'This Constitution may be amended, but it is our will that the amendment
must be proposed and submitted to Us for rati cation 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 the manner of its submission to the people for
rati cation or rejection conform with the mandate of the people themselves in
such regard, as expressed in the Constitution itself." 3 8
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 o cial 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." 3 9
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 rati cation or
rejection . . . Then, too, the submission to a plebiscite of a partial amendment,
without a de nite 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, been advanced that the foregoing
considerations are not decisive on the issue before Us, inasmuch as the people
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 rati cation 'in a plebiscite to 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 several possible connotations. It may mean
strict adherence to the law, which in the case at bar is the Supreme Law of the
land. On this point, su ce it to say that, in compliance with the speci c mandate
of such Supreme Law, the members of the Supreme Court have 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 the voting age is
badly needed and re ects the will of the people, specially the youth. This course
of action favors, in effect, the adoption of a political approach, inasmuch as the
advisability of the amendment and an appraisal of the people's feeling thereon
are 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 the letterhead of some secretarian 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 been 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 delve 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 Constitution called upon to draft it would he 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 the Judge of the good or bad
intentions of the Convention and thus be involved in a question essentially
political in nature.
"This is con rmed 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 ward 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 parties on the highest
level. In any event, qualities, political approach, political expediency and
statesmanship are generally associated, and often identi ed, with the dictum that
'the end justi es the means.' I earnestly hope that the administration of justice in
this country and the Supreme Court, in particular, will never adhere to or approve
or indorse such dictum." 4 0
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 rati cation of the new
Constitution in 1972' so as 'to allow young people who would be governed by the new
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 nal draft of the new
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" 4 1 — so that
there may be "submitted, not piece- meal, but by way of complete and nal
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 so-called entirely new Constitutions. Amendments to an
existing Constitution presumably may be only of certain parts or in toto, and in the latter
case would give 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 process only "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, quali ed
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 satis ed, 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. 4 2
2.A Massachussets case 4 3 with a constitutional system and provisions
analogous to ours, best de ned the uses of the term " people" as a body politic and "
people" in the political sense who are synonymous with the quali ed 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
signi cations dependent upon the connection in which it is used. In some connections
in the Constitution it is con ned 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
de ciency or lack of the common essentials of education. All these persons are
secured by the 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 ttingly stated that "(I)n 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 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 in a political signi cation. 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
written constitutions, and they have themselves thereby set bounds to their own power,
as against the sudden impulse of mere majorities." 4 4
From the text of Article XV of our Constitution, requiring approval of amendment
proposals "by a majority of the votes cast at an election at which the amendments are
submitted to the people for their rati cation", it seems obvious as above-stated that "
people" as therein used must be considered synonymous with "quali ed 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 4 5 the Revised Barrio Charter xes 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 quorom, 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." 4 6
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly
registered barrio assembly members quali ed 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." 4 7
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 also speci ed: "(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." 4 8
The quali cations for voters in such barrio plebiscites and elections of barrio
o cials 4 9 comply with the suffrage quali cations of Article V, section 1 of the
Constitution and provide that "(S)EC. 10. Quali cations 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." 5 0
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 rati cation as therein provided as well as in
section 16 of Article XVII of the proposed Constitution itself 5 1 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 certi cates of results purportedly showing unaccountable discrepancies in
seven gures in just ve provinces 5 2 between the reports as certi ed 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 nal and complete or as not signed; 5 3 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, 5 4 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 rati ed only in the particular mode or manner
prescribed therein by the people. Under Article XV, section 1 of our Constitution,
amendments thereto may be rati ed 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 quali ed 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 non-observance.
5.Finally, as to respondents' argument that the President issued Proclamation
1102 "as 'agent' of the Constitutional Convention" 5 5 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." 5 6
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 rati cation 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 rati cation 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 nal 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
"12.2Interpellating, 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 rati ed in a plebiscite called for the purpose by the
incumbent President. Delegate Duavit replied that the provision referred to did not
include 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
"12.4Interpellating, Delegate Madarang suggested that a reasonable period for an
information campaign was necessary in order to properly apprise the people of
the implications and signi cance of the new charter. Delegate Duavit agreed,
adding that this was precisely why the resolution was modi ed to give the
President the discretion to choose the most appropriate date for the plebiscite.
"12.5Delegate Laggui asked whether a formal communication to the President
informing him of the adoption of the new Constitution would not su ce
considering that under Section 15 of the Transitory Provisions, the President
would be duty-bound to call a plebiscite forits rati cation. 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.
"12.6In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for
the holding of the plebiscite would he laid down by the Commission on Elections,
in coordination with the President.
"12.7Delegate 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.
"12.8Delegate 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.
1.8aDelegate Guzman withdrew his motion.

"12.9Delegate 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 moved to close the debate and proceed to the period of
amendment.
"13.1Floor Leader Montejo stated that there were no reservations to amend the
resolution.
"13.2Delegate 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 Ordoñez 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." 5 7
I, therefore, vote to deny respondents' motion to dismiss and to give due course
to the petitions.
Promulgated: June 4, 1973 *
ANTONIO , J.:
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 di cult, 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 Debts ease (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 de nition 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
speci c 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-in- chief" 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 O ce 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 part without the least statutory authorization. Those actions were justi ed 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
inde nite scope and legislative in effect in meeting the domestic aspects of a war
emergency." (Corwin, The President: O ce & 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 inde nite 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 rst 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
rst step toward war some fteen months before our entrance into shooting war. This
step occurred in September, 1940, when he handed over fty 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: O ce
and Powers, 1948.)
The creation of public o ces is a power con ded 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 "o ces" which were copied in lavish
scale by President Roosevelt in World War II. In April 1942, thirty- ve "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 justi ed 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 justi cation 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 3.
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 as 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 eld made
untenable the President's claim of authority to seize the plants as an exercise of
inherent executive power or as Commander-in-Chief Justice Clerk 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 quali cations
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 ll needed gaps in the law, or even to supersede it so far as
may be requisite to realize the fundamental law of native 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 justi ed
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 justi cation of 'emergency.' In the nal result the constitutional
practices of wartime have moulded the Constitution to greater or less extent for
peacetime as well, and 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 its citizens who are engaged in violent
insurrection against the enforcement of its laws or are bent on capturing it
illegally or even destroying it altogether. The third crisis, one recognized
particularly in modern times as sanctioning emergency action by constitutional
governments, is economic depression. The economic troubles which plagued all
the countries of the world in the early thirties invoked 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 crisis which have justi ed extraordinary governmental action in
nations like the United States. Fire, ood, drought, earthquake, riots, and great
strikes have all been dealt with by unusual and often dictatorial methods. Wars
are not won by debating societies, rebellions are not suppressed by judicial
injunctions, the reemployment of twelve million jobless citizens will not be
effected through a scrupulous regard for the tenets of free enterprise, and
hardships caused by the eruptions of nature cannot be mitigated by letting nature
take its course. The Civil War, the depression of 1933, and the recent global
con ict 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 in accordance with the provisions of existing election
laws, where only quali ed voters are allowed to participate, under the supervision of the
Commission on Elections, the new Constitution, should therefore be declared 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 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 speci cally 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 speci c
provisions. The intention of an act to amend is not the change of the entire constitution,
but only the improvement of specific parts of the existing constitution of the addition
of provisions deemed essential as a consequence of new conditions 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 nal 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 1936 Constitution does not speci cally 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 now
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 a 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 rati cation 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 Court
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 it speci ed the
manner in which such submission shall be made, the persons quali ed to vote for the
same, the date of election and other de nite 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 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 rati cation
of the proposed new Constitution. The adoption of 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, rati ed the method and procedure
taken. "When the people adopt a 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 at 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
bene t. Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty
resides in the people and all government authority emanates 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 cannot be deduced from
their acts of conformity, because under a regime of martial law the people are hound to
obey and act in conformity with the orders of the President, and have absolutely no
other choice. The aw 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 ounders 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 o cials.
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 rearms, 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 di culties — land tenancy, o cial
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 spreading 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, and 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 sharecropper-absentee landlord
relationship. He is even pushing 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 nal 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 rati cation, 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 a rms 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 di culty 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 t 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 of "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 ve cases, and the
conclusion of this Court in its judgment of March 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 shall be adopted. Unless otherwise provided in the
amendment, it becomes effective thirty days after the certi cation 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 a rmative, delegates to the convention shall be chosen
at the next regular statewide election, unless the legislature provides for the election of
the 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 certi cation 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 rati cation 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 two 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
quali ed 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 election 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 quali cations, 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 rati cation 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 certi ed to the Executive of the State, who shall call to his assistance the
Controller, Treasurer, and Secretary of State, and compare the returns so certi ed to
him; and it shall be the duty of the Executive to declare, by his proclamation, such
Constitution, as may have been rati ed by a majority of all the votes cast at such
special election, to be the Constitution of the State of California.
2.Colorado (1876) — Art. XIX.Amendments.
Sec. 1.Constitutional convention; how called.The general assembly may at any
time by 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; x the pay of its members
and o cers, 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 quali cations of
members shall be the same as of members of the senate; and vacancies occurring
shall be lled in the manner provided for lling vacancies in the general assembly. Said
convention shall meet within three months after such election and prepare such
revisions, alterations or amendments to the constitution as may be deemed necessary;
which shall be submitted to the electors for their rati cation 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 qualified electors 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 newspapers 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 quali ed 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 quali ed electors thereof, and two of whom
shall be chosen from New Castle County, two from Kent County and two from Sussex
County by the quali ed electors thereof respectively. The delegates so chosen shall
convene at the Capital of the State on the rst 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 power to appoint such o cers,
employees and assistants 'as it may deem necessary, and x 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 quali cations of its members. Whenever there shall be a vacancy
in the o ce of delegate from any district or county by reason of failure to elect,
ineligibility, death, resignation or otherwise, a writ of election to ll such vacancy shall
be issued by the Governor, and such vacancy shall be lled by the quali ed 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 extraordinary 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- fths 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
this 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 counties 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. XX.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 that 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. 3.Revision or amendment 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
quali ed, 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.Amendment and Revision.
Sec. 1.Amendment 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 quali ed 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 laws, the question of a General Revision of the Constitution shall be
submitted to the Electors quali ed 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 certi ed as approved, the Electors of each House of Representatives
District as then organized shall Elect One Delegate for each State Representative to
which the District is entitled and the 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 . . . No proposed constitution
o r 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
quali ed electors in the manner provided by such convention on the rst Monday in
April following the nal adjournment of the convention; but, in case an interval of at
least 90 days shall not intervene between such nal adjournment and the date of such
election, then it shall be submitted at the next general election. Upon the approval of
such constitution or amendments by a majority of the quali ed electors voting thereon
such constitution or amendments shall take effect on the rst day of January following
the approval thereof.
9.Minnesota (1867) — 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 propose 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 rati ed 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- fths of all the electors voting
on the question shall have voted for and rati ed such revision, the same shall constitute
a new constitution of the State of Minnesota. Without such submission and rati cation,
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 quali ed 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 than that of both branches of the Legislature. In determining what is
a majority of the electors voting at such election, reference shall be had to the highest
number of votes cast at such election for the candidates for any o ce or on any
question.
11.New Hampshire (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 rst 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 quali ed
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 quali ed
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 been taken, and that, in the
opinion of the majority of the quali ed 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; submission to vote.Any
amendment or amendments to this Constitution may he 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 the yeas and nays thereon, he 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 rst 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 general 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 rst 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 or as a part of 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 amendment or
amendments to this Constitution may be proposed in either house of the Legislature,
and if two-thirds of all the members elected to each 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.A n y 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 twelve (12)
consecutive weeks, prior to said 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 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.
Footnotes
1.Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.
2.Chief Justice Concepcion and Justices Fernando and Teehankee.

3.Justice Zaldivar.

4.Case G.R. No. L-36164.
5.Case G.R. No. L-36236.
6.Case G.R. No. L-36283.
7.Who withdrew as petitioner on January 25, 1973.
8.Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now, after the withdrawal
of the latter, the first two (2) only.
9.Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.
10.Napoleon V. Dilag, et al. v. Executive Secretary, et al.
11.Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on Elections,
L-28196 & L-28224, Nov. 9, 1967. Italics ours.
12.Art. VI, sec. 20(1), Constitution.
13.Art. VII, sec. 10(7), Constitution.
14.Italics ours.
15.See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
16In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist, 59 So. Rep. 963;
McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D. 1, 168 A.L.R. 621,
24 N.W. 2d. 907; State ex rel. Landis, Atty. Gen. v. Thompson, 163 So. Rep. 270; St. Louis
Brewing Association v. Moore, 64 L. ed. 947; Ellingham v. Dye, 99 N.E. Rep. 1, 18;
Johnson v. Craft, 87 So. Rep. 375.
17.Mun. Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L-35573, Oct.
11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v. Commission
on Elections, L-28224, Nov. 29, 1967; Bara Lidasa v. COMELEC, L-28089, Oct. 25, 1967;
Mun. of San Juan v. NAWASA, L-22047, Aug. 31, 1967; Mun. of San Joaquin v. Siva, L-
19870, Mar. 18, 1967; Pelayo v. Auditor General, L-23825, Dec. 24, 1965; Philippine
Constitution Association v. Gimenez, L-23326, Dec. 18, 1965; Mun. of La Carlota v.
NAWASA, L-20232, Sept. 30, 1964; Guevarra v. Inocentes, L-25577, Mar. 15, 1966; Gillera
v. Fernandez, L-20741, Jan. 31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29,
1963; Herrera v. Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19,
1962; La Mallorca, etc. v. Ramos, et al., l-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-
15254, Sept. 16, 1961; Macias v. Commission on Elections, L-18684, Sept. 14, 1961;
Philippine Tobacco Flue-During & Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31,
1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et al., L-14212, July
31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al., L-14738, July 31,
1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L-14759, July 31, 1961;
Liwanag v. Central Azucarera Don Pedro, L-15372, July 31, 1961; Lecura v. Regional
O ce No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen Bee Trading Co., et al., L-15693,
July 31, 1961; Pascual v. Sec. of Public Works and Communications, L-10405, Dec. 29,
1960; Corminas, Jr. v. Labor Standards Commission, L-14837, June 30, 1961; City of
Bagiuo v. NAWASA, L-12032, Aug. 31, 1959; City of Cebu v. NAWASA, L-12892, April 20,
1960; Montes v. Civil Service Board of Appeals, 101 Phil. 490; Rutter v. Esteban, 93 Phil.
68; Araneta v. Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.
18.G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965
and L-35979, decided on January 22, 1973.

19.L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965, Rogelio
V. Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo David v. Gen.
Eduardo Garcia, et al.; L-33962, Felicidad G. Prudente v. General Manuel Yan, et al.; L-
34004, Domingo E. de Lara v. Brigadier-General Eduardo M. Garcia; L-34013, Reynaldo
Rimando v. Brig. Gen. Eduardo M. Garcia; L-34039, Carlos C. Rabago v. Brig. Gen.
Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr. v. Gen. Eduardo Garcia, et al.; and L-
34339, Gary B. Olivar, et al. v. Gen. Eduardo Garcia, et al.
20.5 Phil. 87.
21.91 Phil. 882.
22.G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
23.78 Phil. 1.
24.Supra.
25.In re McConaughy, 119 N.W. 408, 417.
26.103 Phil. 1051, 1067.
27.119 N.W. 408, 411, 417.
28.92 Ky. 589, 18 S.W. 522, 523.
29.Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tu y, 19
Nev. 391, 12 Pac. Rep. 835.
30.Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
31.12 L. ed. 581 (1849).
32.Luther v. Borden, supra, p. 598. Italics ours.
33.In re McConaughy, supra p. 416. Italics ours.
34.369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691 (March 26, 1962).
35.895 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
36.In re McConaughy, 119 N.W. 408, 415. Italics ours. The observation as to the uniformity of
authorities on the matter has been reiterated in Winget v. Holm, 244 N.W. 329, 332.
37.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 686, 82 S. Ct. 691.
38.See p. 5 of the Petition.
39.Italics ours.
40.The Framing of the Philippine Constitution, by Aruego, Vol. I, p. 215.
41.The Framing of the Philippine Constitution, by Aruego, Vol. I, pp. 215, 221, 227-228.
42.Ibid., pp. 222-224.
43.Id., pp. 224-227.
44."SEC. 431.Quali cations prescribed for voters. — Every male person who is not a citizen or
subject of a foreign power, twenty-one years of age or over, who shall have been a
resident of the Philippines for one year and of the municipality in which he shall offer to
vote for six months next preceding the day of voting is entitled to vote in all elections if
comprised within either of the following three classes:
"(a)Those who, under the laws in force in the Philippine Islands upon the twenty-eighth day of
August, nineteen hundred and sixteen, were legal voters and had exercised the right of
suffrage.
"(b)Those who own real property to the value of ve hundred pesos, declared in their name for
taxation purposes for a period of not less than one year prior to the date of the election,
or who annually pay thirty pesos or more of the established taxes.
"(c)Those who are able to read and write either Spanish, English, or a native language.
"SEC. 432.Disqualifications. — The following persons shall be disqualified from voting:
"(a)Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight, has
been sentenced by nal judgment to suffer not less than eighteen months of
imprisonment, such disability not having been removed by plenary pardon.
"(b)Any person who has violated an oath of allegiance him to the United States.
"(c)Insane or feeble-minded persons.
"(d)Deaf-mutes who cannot read and write.
"(e)Electors registered under subsection (c) of the next preceding section who, after failing to
make a sworn statement to the satisfaction of the board of inspectors at any of its two
meeting for registration and revision, that they are incapacitated for preparing their
ballots due to permanent physical disability, present themselves at the hour of voting as
incapacitated, irrespective of whether such incapacity be real or feigned."
45.L-34150, October 16 and November 4, 1971.
46."For 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."
47."All duly registered barrio assembly members quali ed 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. 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."
48.Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071;
Ellingham v. Dye (1912), 178 Ind. 236, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W.
419.
49.In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that when a state
constitution enumerates and xes the quali cations of those who may exercise the right
of suffrage, the legislature cannot take from nor add to said quali cations unless the
power to do so is conferred upon it by the constitution itself."
Since suffrage, according to Webster, is a voice given not only in the choice of a man for an
o ce or trust, but, also, in deciding a controverted question, it follows, considering the
said ruling in Alcantara, that the constitutional quali cations for voters apply equally to
voters in elections to public office and to voters in a plebiscite.
Similarly, the Revised Election Code provides in its section 2 that all elections of public o cers
by the people and all votings in connection with plebiscites shall be conducted in
conformity with the provisions of said Code.
50.Republic Act No. 6388, section 101 of which, in part, provides:

"SEC. 101.Quali cations prescribed for a voter. — Every citizen of the Philippines, not otherwise
disquali ed by law, twenty-one years of age or over, able to read and write, who shall
have resided in the Philippines for one year and in the city, municipality or municipal
district wherein he proposes to vote for at least six months immediately preceding the
election, may vote at any election.
"xxx xxx xxx"
51."SEC. 102.Disqualifications. — The following persons shall not be qualified to vote:

"(a)Any person who has been sentenced by nal judgment to suffer an imprisonment of not
less than one year, such disability not having been removed by plenary pardon: Provided,
however, That any person quali ed to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of ten years after service of sentence unless
during such period, he shall have been sentenced by nal judgment to suffer an
imprisonment of not less than one year.
"(b)Any person who has been adjudged by nal judgment by competent court of having
violated his allegiance to the Republic of the Philippines.
"(c)Insane or feeble-minded persons.
"(d)Persons who cannot prepare their ballots themselves."

52."SEC. 10.. . .
"The following persons shall not be qualified to vote:
"a.Any person who has been sentenced by nal 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."
53.20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena v.
Crescini, 39 Phil. 258.
54.Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v. Gnau, 64
S.w. 2d. 168, Italics ours.
55.L-33325 and L-34043, December 29, 1971.
56.Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours.
57.Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours.
58.Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.
59.Art. X, section 1 of the 1935 Constitution.
60.Ten (10) years.
62.Ibid.
64."SEC. 5.Organization of the Commission on Elections. — The Commission shall adopt its
own rules of procedure. Two members of the Commission shall constitute a quorum.
The concurrence of two members shall be necessary for the pronouncement or issuance
of a decision, order or ruling.
"The Commission shall have an executive o cer and such other subordinate o cers and
employees as may be necessary for the e cient performance of its functions and
duties, all of whom shall be appointed by the Commission in accordance with the Civil
Service Law and rules.
"The executive o cer of the Commission, under the direction of the Chairman, shall have
charge of the administrative business of the Commission, shall have the power to
administer oaths in connection with all matters involving the business of the
Commission, and shall perform such other duties as may be required of him by the
Commission.
"SEC. 6.Power of the Commission to Investigate and to Hear Controversy and Issue Subpoena.
— The Commission or any of the members thereof shall, in compliance with the
requirement of due process, have the power to summon the parties to a controversy
pending before it, issue subpoenae and subpoenae duces tecum and otherwise take
testimony in any investigation or hearing pending before it, and delegate such power to
any o cer of the Commission who shall be a member of the Philippine Bar. In case of
failure of a witness to attend, the Commission, upon proof of service of the subpoenae
to said witness, may issue a warrant to arrest the witness and bring him before the
Commission or o cer before whom his attendance is required. The Commission shall
have the power to punish contempts provided for in the Rules of Court under the same
controversy submitted to the Commission shall after compliance with the requirements
of due process be heard and decided by it within thirty days after submission of the
case.
"The Commission may, when it so requires, deputize any member of any national or local law
enforcement agency and/or instrumentality of the government to execute under its direct
and immediate supervision any of its final decisions, orders, instructions or rulings.
"Any decision, order or ruling of the Commission on election controversies may be reviewed by
the Supreme Court by writ of certiorari in accordance with the Rules of Court or such
applicable laws as may be enacted.
"Any violation of any final executory decision, order or ruling of the Commission shall constitute
contempt thereof."
65.64 S.W.2d. 168.
66.L-35538, Roces, et al. v. Secretary of National Defense, et al.; L-35539, Diokno v. Hon. Enrile,
et al.; L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L-35546, Aquino, Jr.,
et al. v. Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567, Doronilla, et al.
v. Secretary of National Defense, et al.; L-35573, Rondon v. Hon. Enrile, et al.
67."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 eld 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 speci ed questions such as the rati cation 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, 1973, 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 speci ed in paragraph 2
hereof, and submit the results thereof to the Department of Local Governments and
Community Development immediately thereafter, pursuant to the express will of the
people as re ected 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." (Italics ours.)
68.McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, 304. Italics ours.
69.Art. VII, section 2, 1935 Constitution.
70.Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. Sathre v. Bryne,
258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v. Bangham, 76 P 2d.
1022; McKim v. Brast, 117 S.E. 875; Head v. Wood, 107 So. 854; State ex rel. Watson v.
Pigg, 46 N.E. 2d. 232.
71.See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d. 588; State
ex rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v. State Election
Board, 431 P. 2d. 352; Baker v. Conway, 108 So. 18; Cohoon v. Swain, 5 S.E. 2d. 1; State
ex rel. Mitchell v. Walcott, 83 A. 2d. 762; Doyle v. Ries, 285 N.W. 480; Grossglaus v. Board
of Elections of Stark County, 88 N.E. 2d. 245; Walker v. Hughes, 36 A. 2d. 47; Reese v.
Dempsey, 152 P. 2d. 157; Dodd v. Gower, 62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W.
1013; Hagan v. Henry, 76 S.W. 2d. 994.
72.106 Minn 392, 119 N.W. 408, 409.
73.63 N.J. Law, 289, cited in In re McConaughy, supra.
74.78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.
75.See cases listed on pages 105-106, footnotes 56, 57 and 58.
76.On December 19, 1972.
77.24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223, 228; Harris v.
Shanahan, 387 P. 2d. 771, 784, 785.
78.369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S. 543, 547, 548,
68 L. ed. 841, 843, 44 S. Ct. 405.
79.Art. VII, section 10, paragraph (1).
80.101 Va. 529, 44 S.E. 754.
81.Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62 C.J.S. 749-750;
Guevara v. Inocentes, L-25577, March 15, 1966.
82.Which, in some respects, is regarded as an organ of the Administration, and the news items
published therein are indisputably censored by the Department of Public Information.
83.Daily Express, November 29, 1972, p. 4. Italics ours.
84.231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
85.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.
86.Justice Barredo's opinion in the plebiscite cases.
87.Joint Opinion of Justices Makalintal and Castro, p. 153.
88.Justice Barredo's language.
89.At p. 153, joint opinion of Justices Makalintal and Castro.
90.Joint Opinion of Justices Makalintal and Castro, p. 153.
91.At p. 8, Idem.
*The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, led a
separate dissenting opinion when the Court denied a motion for reconsideration, and
voted in favor of the validity of the questioned Resolution. Mr. Justice Enrique M.
Fernando joined in the dissent.
*Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed
unsuccessfully as an amendment to the 9135 Constitution, reducing the voting age from
21 to 18, but the submission of which to a plebiscite was declared invalid by this Court
in Tolentino vs. COMELEC, became a reality of an even more far-reaching import — since
fifteen-year olds were included in the Citizens Assemblies.
*According to the Solicitor General 92 Congressmen and 15 Senators (both numbers
constituting majorities) have expressed their option.
*Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
1.Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad vs. Comelec,
L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et al., L-35940,
January 22, 1973; Eddie B. Monteclaro vs. Comelec, et al., L-35941, January 22, 1973;
Sedfrey A. Ordoñez, et al., vs. The National Treasurer of the Philippines, et al., L-35942,
January 22, 1973; Vidal Tan, et al. vs. Comelec, et al., L-35948, January 22, 1973; Jose
W. Diokno, et al. vs. Comelec, L-35953, January 22, 1973; Jacinto Jimenez vs. Comelec,
et al., L-35961, January 22, 1973; Raul M. Gonzales vs. Comelec, et al., L-35965, January
22, 1973 and Ernesto Hidalgo vs. Comelec, et al., L-35979, January 22, 1973.
2.Executive Agreements are not included in the corresponding provision of the 1935
Constitution.
3.It must be recalled that in the Tolentino case, the Constitutional Convention intended to
submit one amendment which was to form part of the Constitution still being prepared
by it separately from the rest of the other parts of such constitution still un nished, and
We held that a piece-meal submission was improper. We had no occasion to express any
view as to how a whole new Constitution may be ratified.
*In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica, New
York in 1824, died in 1898. Judge Cooley was also professor and later dean of the Law
Department of the University of Michigan and Justice of the State Supreme Court of
Michigan from 1864 to 1885, when he failed to win re-election to the court.
1.Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v. Commission
on Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on Elections, et al., L-
35940; Eddie B. Monteclaro v. The Commission on Elections, et al., L-35941; Sedfrey A.
Ordoñez, et al. v. The National Treasurer of the Philippines, et al., L-35942; Vidal Tan, et
al. v. Commission on Elections, et al., L-35948; Jose W. Diokno, et al. v. The Commission
on Elections, L-35953; Jacinto Jimenez v. Commission on Elections, et al., L-35961; Raul
M. Gonzales v. The Honorable Commission on Elections, et al., L-35965; Ernesto Hidalgo
v. Commission on Elections, et al., L-35979.
2.See Tañada, et al. v. Cuenco, L-10520, Feb. 28, 1951; Baker v. Carr, 369 U.S. 186 (1962).
3.See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
4.Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5.L-38196, November 9, 1967, 21 SCRA 774.

6.83 Phil. 1957.
7.McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p. 516. See
also the plebiscite cases, mentioned in footnote 1, ante.
8.Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9.39 Phil. 258, 268.

10.69 Phil. 199, 204.
11.70 Phil. 28, 31.
1.Memorandum for Respondents, 2.

2.According to the 1935 Constitution: "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 this 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." Art. XV, Section 1.
3.Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner made this
not-entirely-inaccurate observation: "No governmental institution that consists of a group
of legal technicians appointed for life can ever hope to cope with, much less solve, the
exigent problems of our polity." Ibid, 231. He was referring of course to the Supreme
Court of the United States.
4.Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).
5.Black, The People and the Court (1960).
6.Murphy, Elements of Judicial Strategy (1964).
7.Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Tañada v. Cuenco, 103 Phil. 1051
(1957): Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.
8.Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
9.Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971. 41 SCRA 702.
10.Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
11.256 US 368 (1921).
12.Ibid, 374-375.
13.L-33964, Dec. 11, 1971, 42 SCRA 448.
14.Ibid, 504-505.
15.Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on
Constitutional Law 355, 387 (1938).
16.Ibid, 395.
17.Weston, Political Questions, I Selected Essays on Constitutional Law 418, 422 (1938).
18.Cf. Bickel, The Least Dangerous Branch (1962).
19.Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme Court of the
United States (1962).
20.Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935),
Appendix L, 800.
21.65 Phil. 56 (1937).
22.Ibid, 96.
23.63 Phil. 139 (1936).
24.L-35925, January 22, 1973.
25.Rostow, The Democratic Character of Judicial Review in Selected Essays on Constitutional
Law 1938 1962, 1, 2 (1963).
26.Ibid.
27.Ibid, 3.
28.Ibid, 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of
California, 342 US 165 (1952).
29.Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice
Frankfurter found in his opinion in Stein v. New York, 346 US 156 (1953).
30.Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
31.Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450 (1938).
32.1 Cranch 137 (1803).
33.Curtis, Lions Under the Throne, 12 (1947).
34.Addresses and Papers of Charles Evans Hughes, 139-140 (1908).
35.Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949).
36.Haines, Charles Grove, The Role of the Supreme Court in American Government and Politics,
1789-1835, 3 (1960).
37.369 US 186.
38.395 US 486.
39.328 US 549 (1946).
40.Ibid, 556.
41.Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. 526 (1964); Wright v. Rockefeller,
376 US 52, 11 L ed 2d 512, 84 S Ct 603 (1964); Reynolds v. Sims, 377 US 533, 12 L ed 2d
506, 84 S Ct 1362 (1964); WMCA v. Lomenzo 377 US 633, 12 L ed 2d 568, 84 S Ct. 1418
(1964); Maryland Committee v. Tauses, 377 US 656, 12 L ed 2d 595, 84 S Ct. 1442
(1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609, 84 S Ct. 1453 (1964); Roman v.
Sincock, 377 US 695, 12 L ed 2d 620, 84 S Ct. 1462 (1964); Lucas v. Colorado General
Assembly, 377 US 713, 12 L ed 2d 632, 84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 US
433, 13 L ed 2d 401, 85 S Ct. 498 ( 1965); Burns v. Richardson, 384 US 73,16 L ed 2d
376, 86 S Ct. 1286 (1966); Sailors v. Kent Board of Education, 387 US 105, 18 L ed 2d
650, 87 S Ct. 1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554 (
1967).
42.77 Phil. 192 (1946).
43.Ibid, 56.
44.New York Times Company v. United States, 29 L ed. 822 (1971).
45.Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law Review 77 (1959).
It is the first essay in his Principles, Politics and Fundamental Law.
46.The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute Neutrality,
11 J. Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense of Profession,
34 Rocky Mt. L. Rev. 123, 136-46 (1962); Henkin, Some Re ections on Current
Constitutional Controversy, 109 U Pa L. Rev. 637 (1961); Henson, A Criticism of Criticism:
In re Meaning, 29 Fordham L. Rev. 553 (1961); Miller, A Note on the Criticism of Supreme
Court Decisions, 10 J. Pub. L. 139 (1961); Wright, The Supreme Court Cannot be Neutral
40 Texas L. Rev. 599 (1961); Arnold, Professor Hart's Theology, 73 Harv. L. Rev. 1298
(1960); Black, The Lawfulness of the Segration Decisions, 69 Yale L. J. 421 (1960);
Griswold, Of Time and Attitudes: Professor Hart and Judge Arnold, 74 Harv. L. Rev. 81
(1960); Karst, Legislative Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75;
Miller and Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. Chi. L.
Rev. 661 (1960); Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev.
571 (1960); Hart, Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959);
Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108
U. Pa L. Rev. 1 (1959).
47.Cahn, Supreme Court and Supreme Law, 40 (1954).
48.Cf. Tañada v. Cuenco, 103 Phil. 1051, 1089 (1957).
49.Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss. 650 (1856); Penn v.
Tollison, 26 Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883); McMillan v.
Blattner, 67 Iowa 287, 25 NW 245 (1885); State v. Davis, 20 Neb. 220, 19 Pac. 894
(1888); State v. Tooker, 15 Mont. 8, 37 Pac. 840 (1894); Russie v. Brazzell, 128 Mo. 93,
30 SW 526 (1895); State v. Powell, 77 Miss. 543, 27 So. 927 (1900); State v. Brookhart,
113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156 Ind. 104, 59 NE 359 (1901); Utter v.
Moseley, 16 Idaho 274, 100 P. 1058 (1909); Willis v. Kalbach, 109 Va. 475, 64 SE 342
(1909); People ex rel. Swift v. Luce, 74 Misc. Rep. 551, 133 US 9 (1912); McCreary v.
Speer, 156 Ky. 783, 162 SW 99 (1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915);
State v. Marcus, 160 Wis. 354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403,
115 NE 29 (1916); In re Opinion of Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v.
Vouchan, 202 Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206 Ala. 371
(1921); Switzer v. State, 103 Ohio St. 306, 133 NE 552 (1921); Johnson v. Craft, 87 So.
375, 205 Ala. 386 (1921); In re Opinion of the Justices, 237 Mars. 589, 130 NE 202
(1921); Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922); Hamilton v. Deland, 191
NW 829, 221 Mich. 541 (1928); In re Initiative Petition, 89 Okl. 124, 214 P. 186 (1923);
Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924); McAdams v. Henley, 169 Ark. 97, 273
SW 355 (1925); Heinitsh v. Floyd, 130 SC 434, 126 SE 336 (1925); State v. Zimmerman,
187 Wis. 180, 204 NW 803 (1925); Brown v. City of New York, 125 Misc. Rep. 1, 210 NYS
786 (1926); State ex rel. Bahns v. City of New Orleans, 163 La. 777, 112 So. 718 (1927);
Duncan v. Record Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517,
283 P. 5 (1929); School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW
474 (1933); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); In re Opinion to Governor, 55
R.I. 56, 178 A. 433 (1935); State ex rel Landis v. Thompson, 120 Fla. 860, 163 So. 270
(1935); Tausig v. Lawrence, 328 Pa. 408, 197 A. 235 (1938); Downs v. City of
Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v. Jones, 198 La. 507, 3 So. 2d
761 (1941); Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947); Palmerv. Dunn, 216
SC 558, 59 SE 158 (1950).
50.Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); In re Senate File No. 31, 25 Neb. 864,
41 NW 981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893); Nesbit v. People, 19
Colo. 441, 36 Pac. 221 (1894); Hays v. Hays, 5 Idaho 154, 47 P. 732 (1897); Lovett v.
Ferguson, 10 SD 44, 71 NW 756 (1897); Russell v. Grey, 164 Mo. 69, 63 SW 849 (1901);
Gabbert v. Chicago, R.I.Ry. Co. 171 Mo. 84, 70 SW (1902); People v. Sours, 31 Colo. 369,
102 74 P. 167 (1903); People v. Loomis, 135 Mich. 556, 98 NW 262 (1904); West v. State,
50 Fla. 154, 39 So. 412 (1905); State v. Wilmett, 78 Neb. 379, 110 NW 113 (1907); Farrell
v. Port of Columbia, 50 Or. 169, 93 P. 254 (1908); In re McConaughy, 106 Minn. 392, 119
NW 408 (1909); Fletcher v. Gifford, 20 Idaho 18, 115 P. 824 (1911); Hammond v. Clark,
136 Ga. 313, 71 SE 479 (1911); Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912);
Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76 Wash. 332, 136
P. 374 (1913); Tabor v. City of Walla Walla, 77 Wash. 579, 137 P. 1040 (1914); State v.
Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey v. Persinger, 43 Okl. 41, 141 P. 13
(1914); Cress v. Estes, 43 Okl. 213 P. 411 (1914); Cooney v. Foote, 142 Ga. 647, 83 SE
537 (1914); Hildreth v. Taylor, 117 Ark. 465, 175 SW 40 (1915); Jones v. McDade, 200
Ala. 230, 75 So. 988 (1917); State v. Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex Parte
Ming, 42 Nev. 472, 181 P. 319 (1919); Lee v. Price, 54 Utah, 474, 181 P. 948 (1919); Erwin
v. Nolan, 280 Mo. 401, 217 SW 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431
(1921); Thompson v. Livingston, 116 S.C. 412, 107 SE 581 (1921); Thrailkill v. Smith,
106 Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran, 141 Ind. 586, 119 A. 250 (1922);
Fahey v. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephens, 155 Ga. 529, 117
SE 439 (1923); Manos v. State, 98 Tax. Cr. 87, 263 SW 310 (1924); State v.
Zimmermann, 187 Wis. 180, 208 NW 803 (1925); Taylor v. King, 284 Pa. 285, 130 A. 407
(1925); Board of Liquidation of State Debt of Louisiana v. Whitney-Central Trust and
Savings Bank, 168 La. 560, 122 So. 850 (1929); State v. Cline, 118 Neb. 150, 224 NW 6
(1929); California Teacher's Ass'n. v. Collins, 1 Cal. 2d 202, 34 P. 2d 134 (1934); Collier v.
Gray, 116 Fla. 845, 157 So. 40 (1934); State ex rel. v. State Bldg. Commission v. Smith,
335 Mo. 840, 74 SW 2d 27 (1934); Mayer v. Adams, 182 Ga. 524, 186 SE 420 (1936);
Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1937); Swanson v.
State, 132 Neb. 82, 271 NW 264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939);
Graham v. Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No. 224, 197
Okl. 432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW 2d 569
(1947); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948).
51.Commonwealth Act No. 492 (1939).
52.Ibid, Section 3.
53.Commonwealth Act No. 517 (1940).
54.Article VI of the 1935 Constitution.
55.Article VII of the 1935 Constitution.
56.It is to be noted that under Commonwealth Act No. 607 (1940), subsequently amended by
Commonwealth Act No. 657 (1940), there was a statutory creation of an independent
Commission on Elections.
57.Section 3, Commonwealth Act No. 517.
58.Republic Act No. 73 (1946).
59.Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act
Numbered Three Hundred and fty-seven, otherwise known as the Election Code, and
Commonwealth Act Numbered Six Hundred and fty-seven, entitled 'An Act to
Reorganize the Commission on Elections,' is so far as they are not inconsistent herewith,
are hereby made applicable to the election provided for in this Act."
60.Republic Act 4913 (1967).
61.Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered One
hundred eighty, as amended, insofar as they are not inconsistent herewith, are made
applicable to the election provided for in this Act." It is to be remembered that in the
plebiscite held, the two proposals last. Cf. on this point, Gonzales v. Commission on
Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
62.The 1935 Constitution provides. "The Philippines is a republican state. Sovereignity resides
in the people and all government authority emanates from them." Article II, Section 1.

63.Laski, Grammar of Politics, 4th ed., 34 (1937).
64.McIver, The Web of Government, 84 (1947).
65.Corwin. The Higher Law Background of American Constitutional Law, in 1 Selected Essays
on Constitutional Law 3 (1938).
66.92 Ky. 589, 18 SW 522.
67.Ibid, 523.
68.101 Va. 829. 44 SE 754.
69.Ibid, 755. A similar approach may be noted in Arie v. State, 23 Okl. 166, 100 P. 23 (1909) and
Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911).
70.Araneta v. Dinglasan, 84 Phil. 368 (1949).
71.Cardozo, The Nature of the Judicial Process, 141 (1921).
1.Section 1, which is the lone section of Art. XV; italics supplied.
2.Article XVII, section 16, proposed Constitution of Nov. 30, 1972; italics supplied.
3.All quotations from respondents' memo of arguments dated March 2, 1973, pp. 2-5; italics
supplied.
4.Respondents' memo dated March 2, 1973, p. 8; italics supplied.
5.Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).
6.Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
7.Resolution on motion for reconsideration in Tolentino vs. Comelec, L-34150; dated Nov. 4,
1971, at page 3, per Barredo, J. with seven Justices concurring; italics supplied.
8.Idem, at page 4, italics supplied.
9.Joint opinion of JJ. Makalintal and Castro, p. 153.
10.Article X, sec. 1 of the Constitution entrusts "exclusive charge" of the conduct of elections to
the Comelec. See also the Election Code of 1971.
11.Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez vs. Treasurer (L-
3054); Guerrero vs. Commissioner of Customs; and Barredo vs. Comelec (L-3056), jointly
decided and reported in 84 Phil. 368.
12.Idem, at pp. 384-385; italics supplied.
13.Idem, at p. 437.
14.Idem, at pp. 435-437.
15.Idem, at p. 383. Justice Tuason further duly noted that "These observations, though beyond
the issue as formulated in this decision, may, we trust, also serve to answer the
vehement plea that for the good of the Nation, the President should retain his
extraordinary powers as long as turmoil and other ills directly or indirectly traceable to
the late war harass the Philippines."
16.Petitioner Monteclaro's notes of oral argument dated February 23, 1973, p. 2, and Annex A
thereof.
17.State vs. Powell, 77 Miss. 543, 27 South 927.
18.Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.
19.Article XV, sec. 1, Constitution.
20.Article V, sec. 1, Constitution.
21.Article X, sec. 2, Constitution.
22.Respondents' memo dated March 2, 1973, p. 5.
23.Respondents' Comment dated Feb. 3, 1973, p. 67.
24.Idem, at p. 46; note in parentheses supplied.
25.1 Cranch 137 (1803).
26.63 Phil. 134 (1936).
27.4 Wheaton 316 (1819).
28.Dean Pollak's "The Constitution and the Supreme Court", Vol. I, p. 221.
29.Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
30.Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per Barredo, J. at p. 8.
31.a Con-Con Res. No. 1 proposing the urgent lowering of the voting age to enfranchise the 18-
year olds retained the "permissive" language of section 1, Art. V. Thus, the proposed
amendment read: "Section 1. Suffrage may be exercised by (male) citizens of the
Philippines not otherwise disquali ed by law, who are (twenty one) EIGHTEEN years of
age or over and are able to read and write . . ."
31.Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
32.Decision of Oct. 16, 1971, at p. 21.
33.21 SCRA 774 (Nov. 9, 1967).
34.Decision of Oct. 16, 1971, at p. 24.
35.Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.
36.Idem at pp. 1-2.
37.Idem at p. 3.
38.Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J., pp. 3-4.
39.Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
40.All quotations are from the Chief Justice's concurring opinion in Tolentino, pp. 4-7.
41.Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9, 10.
42.This Court thus declared in Tolentino the Con-Con voting age reduction resolution as null
and void and prohibited its submittal at the 1971 elections for lack of proper submission
since it did not "provide the voter . . . ample basis for an intelligent appraisal of the
amendment." Dec. of October 16, 1971, per Barredo, J.
43.In re Opinion of Justices, 115 N.E. Rep. 922-923.
44.Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
45."Barrios are units of municipalities or municipal districts in which they are situated . . ." Rep.
Act 3590, sec. 2.
46.Rep. Act 3590, sec. 6, par. 1.
47.Idem, par. 2.
48.Idem, par. 3 and 4, italics supplied.
49.One barrio lieutenant and six barrio councilmen; "Voting shall be by secret ballot . . ." Idem,
sec. 8.
50.Idem, sec. 10, italics supplied. The same section further disquali es persons convicted by
nal judgment to suffer one year or more of imprisonment "within two years after
service" or who have violated their allegiance to the Republic and insane or feeble-
minded persons.
51.Supra p. 2.
52.Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners' manifestation and
supplemental rejoinder dated March 21, 1973 in L-36165.
53.Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated March 29, 1973.
54.Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen million nine
hundred seventy six thousand ve hundred sixty one (14,976,561) members of all the
Barangays voted for the adoption of the proposed Constitution, as against seven
hundred forty- three thousand eight hundred sixty nine (743,869) who voted for its
rejection; but a majority of those who approved the new Constitution conditioned their
votes on the demand that the interim National Assembly provided in its Transitory
Provisions should not be convened."
55.Respondents' memo dated March 2, 1973, supra, p. 2.
56.As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however, did not
look on the same with favor, since the "constitutional point (that the Comelec has
exclusive charge of the conduct of elections and plebiscites) seems to have been
overlooked in the Assemblies."
57.Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate Sedfrey A.
Ordoñez et al. in the plebiscite case L-35942, par. 12 of petition and admitted in par. 4 of
answer of therein respondents dated Dec. 15, 1972.
*First decision promulgated by First Division of the Supreme Court.
1."When a house is completely demolished and another is erected on the same location, do you
have a changed, repaired and altered house, or do you have a new house? Some of the
material contained in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have altogether another or
a new house. We conclude that the instrument as contained in Ga. L. 1945, pp. 8 to 89,
inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a
completely revised or new constitution." (Wheeler v. Board of Trustees, 37 S.E. 2d 322,
327).
"Every proposal which affects a change in a Constitution or adds or takes away from it is an
"amendment", while a "revision" implies a re-examination and statement of the
Constitution, or some part of it, in a corrected or improved form:" (Const. Secs. 196, 197,
Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va. 613).
"Amendment" and "revision" of constitution are separate procedures each having a substantial
eld of application, not mere alternative procedures in the same eld." (McFadden v.
Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
2.Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
3.Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
4.Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota, Nevada,
New Hampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to this opinion.
*Leon O. Ty, Seven Months of Martial Law, Daily Express.
*Panorama, May 6, 1973.
5."A written constitution is susceptible of change in two ways: by revolution, which implies
action not pursuant to any provision of the constitution itself; and by revision, which
implies action pursuant to some procedural provision in the constitution. This distinction
is concerned with the quare and not with the quantum of change. It may be signi cant,
however, that the alleged alteration does or does not purport to affect the existence of
the court itself. In the nature of things, a revolutionary charge does not admit of judicial
power as such to determine the fact of its occurrence. If the revolutionary constitution
sets up a court differently constituted from the pre-revolutionary court, neither tribunal is
confronted with a substantial problem, for neither can deny the act by which it was
created without denying the fact of its creation. Thus the Supreme Court in Luther v.
Borden (supra) uses language substantially parallel with what has been indicated above
as the logical explanation of the Duke of York's case. For the court to give serious
judicial consideration to such a question would present 'the singular spectacle of a court
sitting a a court to declare that we are not a court.' (Brittle v. People, 2 Neb. 198, 214
[1873].) And even if the alleged new constitution purports to leave intact the former court
and to permit its work to go on without hiatus, the decision which the judges must make
is still an individual choice to be made by them as a matter of practical politics. Two
commissions are being held out to them, and if they will act as a court they must assert
under which commission they are acting. To put the matter in another way, it must be
true that in the rst case above — of two constitutions purporting to establish two
different courts, — the men who were judges under the old regime and the men who are
called to be judges under the new have each to decide as individuals what they are to do;
and it may be that they choose at grave peril with the factional outcome still uncertain.
And, although it is not equally obvious, the situation is logically identical where the same
men are nominated to constitute the court under both the old and the new constitution,
at a time when the alleged change is occurring — if it is — peaceably and against a
placid popular background. Men under such circumstances may write most
praiseworthily upon principles of statesmanship, upon sovereignty and its nature and
modes of action, and upon the bases of government, to justify their choice between the
two commissions. They can assert their choice in the course of purported judicial action.
But they cannot decide as a court, for the decision, once made, by a retroactive
hypothesis excludes any assumption of controversiality in the premises."
"Where the alleged change occurs not through revolutionary measures but through what has
been called revision, these logical di culties disappear in one aspect, but become far
more embarrassing in another. Where the alteration purports to be made along the lines
of a procedural method laid down in the old constitution, there is a standard which the
court can apply and, by so doing, it can perceive judicially whether or not the change has
followed the prescribed lines. If it has, there is no di culty in pronouncing as a matter of
law its accomplishment. Only one exception is possible, namely, the case where the
alteration purports at once to abolish the court or to depose its personnel. Then,
although there would be a question of law to be decided, it may be wondered who there
is to decide it. Suppose, however, the mode of change has failed in some way to
conform to a directory provision of the amending clause of the constitution; is the court
to declare the attempt at alteration unsuccessful? It would seem as a matter of law that
it must do so; and yet what is the situation if the proponents of the change say, 'It is true
that this measure failed under the amending clause, but as a revolutionary measure it
was a success and we insist upon its recognition.' Clearly the members of the court are
now more badly than ever entangled in the logical di culties which attend a purported
judicial pronouncement upon the achievement or non-achievement of revolutionary
change. For the temptation will be great to treat the matter as a legal question. The times
are peaceful. The changes probably do no affect the tenure of many o ces of any
branch of the government. The popular inertia is likely to allow the court successfully to
assume the question to be one of law. The path of fallacy is not too strikingly fallacious
to the uncritical observer. It may lead to just results. The judges' personal inclinations
will be to show deference to the expression of popular sentiment which has been given.
And yet, if they declare the change in force, they are truly making a personal declaration
that they believe the change to be the directly expressed will of the sovereign, which will
they assert to be law, but the fact of existence of which will — and this is the real
decision — is not ascertainable in the given case by any legal means. It is submitted that
this is true, and that the conclusions offered in the discussion of revolutionary change
are true, also, whether the quantum of change involved be vast or almost negligible."
"The net result of the preceding discussion is this: that in almost the whole eld of problems
which the Duke of York's case and the American constitutional amendment cases
present, the court as a court is precluded from passing upon the fact of change by a
logical di culty which is not to be surmounted. It follows that there is no room for
considering whether the court ought graciously and deferentially to look to the executive
or legislative for a decision that a change has or has not taken place. In such a context,
such a 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
hazards. No question of law is involved." (Political Questions, 38 Harvard Law Review
[1924-25], pp. 305-309.)
6.Ibid. pp. 301, 305.
7.Ibid. pp. 301, 305.
@The inclusion in the Appendix of provisions for Amendment and Revision in State
Constitutions, adopted after 1935, is only to stress the fact that the distinction between
Amendment and Revision of Constitution, which existed at the time of the adoption of
the 1935 Constitution, has continued up to the present.

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EN BANC

[G.R. No. L-36142. March 31, 1973.]

JOSUE JAVELLANA , petitioner, vs . THE EXECUTIVE SECRETARY, THE

[G.R. No. L-36164. March 31, 1973.]

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL

[G.R. No. L-36165. March 31, 1973.]

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,

[G.R. No. L-36236. March 31, 1973.]

EDDIE B. MONTECLARO, [personally and in his capacity President

[G.R. No. L-36283. March 31, 1973.]

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO

Ramon A. Gonzales for petitioner Josue Javellana.

Background of the Plebiscite Cases

"Substantially identical actions were led, on December 8, 1972, by Pablo C.

"Meanwhile, or on December 17, 1972, the President had issued an order

"[2]Reforms instituted under Martial Law;

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

"[3]Do you like Congress again to hold sessions?

In order to broaden the base of citizen participation in government.

The vote of the Citizens Assemblies should already be considered the

CD Technologies Asia, Inc. 2018 cdasiaonline.com

We want President Marcos to continue with Martial Law. We want

"Do you still want a plebiscite to becalled to ratify the new

would be an attempt to by-pass and short-circuit this Honorable Court before

'3.That petitioners are now before this Honorable Court in order to

CD Technologies Asia, Inc. 2018 cdasiaonline.com

[a]The elections contemplated in the Constitution,

CD Technologies Asia, Inc. 2018 cdasiaonline.com

so that Presidential Decree No. 86, insofar at least as it attempts to submit

'WHEREAS, Citizens Assemblies were created in barrios, in

'WHEREAS, responding to the clamor of the people and pursuant to

'WHEREAS, fourteen million nine hundred seventy-six thousand ve

'By the President:

"c.Justice Zaldivar maintains unquali edly that the Proposed

CD Technologies Asia, Inc. 2018 cdasiaonline.com

In fact, while executive orders embody administrative acts or commands of the

Sections 1 and 2 of Art. X of the Constitution ordain in part:

"Sec. 2.The Commission on Elections shall have exclusive charge of the

"In view of these events relative to the postponement of the aforementioned

"[4]Do you like the plebiscite to be held later?

CD Technologies Asia, Inc. 2018 cdasiaonline.com

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a

MAKALINTAL and CASTRO , JJ.:

(2)Article XVII, Section 16, of the draft itself states:

But we do not want the Ad Interim Assembly to be convoked. Or if it is

We want President Marcos to continue with Martial Law. We want

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In the report of an interview granted by the President to the Newsweek Magazine

As far as I am concerned, I regard the present petitions as no more than mere

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but on January 11, 1973, six questions were added as follows:

The vote of the Citizens Assemblies should already be considered the

"The Department adopted a system of regionalizing the receiving

The development culminated in the issuance by the President of Proclamation

Assuming, without conceding, that Article XV of the 1935 Constitution

for which reason We concluded

But the foregoing requirements prescribed by the Articles of Confederation and

Historian Samuel Eliot Morison similarly recounted:

"'For, if this court is authorized to enter upon this inquiry, as proposed

Even a constitutional amendment that is only promulgated by the Constitutional

The Court in the Taylor case above-mentioned further said:

"Sec. 3(2)All proclamations, orders, decrees, instructions, and acts promulgated,